Supreme Court Call - Case Summaries

Tuesday, May 28, 2013

S-12-0777, State (Cross-Appellant) v. John Blake Edwards (Appellant)

Keith County, Judge James E. Doyle, IV

Attorneys: Clarence Mock, Denise Frost (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Theft, value greater than $1500

Proceedings below: A jury found Appellant not guilty of Counts I and II of theft, greater than $1500 but found him guilty on Count III. He was sentenced to a term of probation.

Issues: l. The district court's "entrapment by estoppel" instruction erroneously allocated the burden of proof to Edwards. 2. The district court erred by allowing the district court clerk to divide the jury panel into two distinct groups for jury selection thereby depriving Edwards of his right to select prospective jurors from the panel as a whole. 3. The district court erred in failing to disqualify the Nebraska Attorney General's office from prosecuting Edwards. 4. The trial court erred in refusing to allow testimony from members of the Keith County Board of Commissioners regarding use of pretrial diversion funds. 5. The trial court erred in refusing to allow Edwards to introduce evidence about the working structures of other diversion programs. 6. The trial court erred in admitting evidence of joint income tax return information filed by Edwards and his spouse. 7. The district court erred in failing to give the jury a limiting instruction regarding the admissible purpose for evidence related to the income tax returns of Edwards and his spouse.

Cross-Appeal: The sentence imposed was excessively lenient.

S-12-0893, State v. Mohamed Said Abdulkadir (Appellant)

Lancaster County, Judge Steven Burns

Attorneys: James R. Mowbray, Kelly S. Breen (Nebraska Commission on Public Advocacy) (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal: 2^nd degree murder; use of a weapon to commit a felony

Proceedings below: Appellant was found guilty by jury verdict of the two crimes. He was sentenced to life imprisonment for 2^nd degree murder and a consecutive term of 15 to 25 years in prison for use of a weapon.

Issues: 1. The trial court erred in refusing appellant's requested Instruction that the state prove beyond a reasonable doubt That the appellant did not act in a state of passion upon Sudden provocation.2. The trial court plainly erred by instructing the jury in a step instruction that required the jury to acquit appellant of 2nd degree murder before deliberating on the elements of manslaughter as manslaughter is not a lesser included offense of 2nd degree murder and the jury should have been given instruction to deliberate upon the elements of both crimes with the option of conviction upon manslaughter. 3. The trial court erred in allowing the admission of cumulative gruesome autopsy photographs depicting the same injuries allowing the prosecution to inflame the Passions of the jurors. 4. The sentencing court erred in imposing a "life to life" sentence for 2nd degree murder as such sentence is in all practicality a determinate sentence which invades and usurps the province of the legislature in defining criminal liability and the classification of punishment.

S-12-0444, State v. Paul A. Valverde (Appellant)

Sarpy County, Judge Max Kelch

Attorneys: Patrick Boylan (Public Defender) (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Count I: Third degree sexual assault of a child, 2nd offense; Count II: Third degree sexual assault of a child, 2nd offense; Count III: Child abuse; Count IV: Child abuse; Count V: First degree sexual assault of a child, 2nd offense; Count VI: Child abuse; Count VII, First degree sexual assault of a child, 2nd offense; Count VIII: Child abuse; Count IX: First degree sexual assault of a child, 2^nd offense; Count X: First degree sexual assault of a child, 2nd offense.

Proceedings below: A jury found Appellant guilty on all counts. He was sentenced a total of 160 to 230 years in prison. Appellee, the State of Nebraska, filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: l. The trial court erred at the Neb. Rev. Stat. § 27-414 hearings when it granted the State's Motions as the court did not follow the letter of the law in that it did not apply § 27-403 as mandated by § 27-413(3). At the hearings the state failed to produce clear and convincing evidence that the prior sexual assaults occurred; failed to establish similarity between the prior and the current sexual assault charges; failed to overcome the proximity in time and intervening circumstances of the other offense requirements. The trial court erred by accepting the state's position that current charges, rather than specific facts, were all that had to be demonstrated to meet the statutory requirements. The trial court failed to distinguish between Federal Rules of Evidence 414 and Neb. Rev. Stat. § 27-414. 2. The trial court erred in not granting a mistrial after putting Appellant in the untenable position of hearing for the first time at trial what the linkage was between the prior uncharged conduct and his current charges. 3. The trial court erred by not giving the jury cautionary instructions on the § 27-414 evidence during the trial and by refusing Appellant's proffered instruction No. 1, and by overruling Appellant's objections to the court's instructions No. 13 and l5 at the instruction conference.

S-12-0335, Eddie Heckman v. Burlington Northern Santa Fe Railroad Company (Appellant)

Box Butte County, Judge Travis O’Gorman

Attorneys: Nichole S. Bogen, Thomas C. Sattler (Wolfe Snowden Hurd Luers & Ahl LLP) (Appellant) --- Andrew W. Snyder (Chaloupka Holyoke Snyder Chaloupka Longoria & Kishiyama PCLLO)---Deborah R. Gilg (U.S. Attorney), Kathryn Keneally (Assistant Attorney General), Robert L. Homan(Assistant U.S. Attorney) (for United States, Department of Justice as Amicus Curiae)

Civil: Personal injury by railroad employee; Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (FELA); damages

Proceedings below: A jury returned a verdict in favor of plaintiff in the amount of $290,000 less 50% for plaintiff’s contributory negligence. The court approved the verdict and entered judgment in favor of plaintiff and against defendant in the amount of $145,000. The trial court denied the defendant’s motion for satisfaction and discharge of the judgment. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: 1. The district court erred in failing to find satisfaction and discharge of the judgment against BNSF after BNSF paid the district court clerk the amount of the judgment less the Railroad Retirement Act payroll taxes and other agreed upon setoffs. 2. The district court erred in holding that "... no portion of the general verdict shall be attributable to Plaintiff's wage loss claim," and "[n]o part of the judgment will be considered lost wages." (T39 and T51). 3. The district court erred in ordering the parties "...to agree, in writing, supported by consideration, so as not to place BNSF at odds with the statutory requirement to pay the Railroad Retirement Taxes to the IRS as permitted by the rules."(T51).

S-12-1219 and S-12-1220, (Consolidated) State v. Douglas House (Appellant)

Lancaster County, Judge Karen Flowers

Attorneys: Todd Molvar (Public Defender’s Office) --- George R. Love (Attorney General’s Office)

Criminal: Leaving the scene of a property damage accident; careless driving

Proceedings below: This case was previously before the Court of Appeals: A-11-0442, appeal dismissed. Neb. Ct. R. App. P. § 2-107(A)(2). A jury trial in county court was held on leaving the scene of property damage accident and a trial to the county court was held on the reckless driving charge. Each found Appellant guilty of both crimes. He was sentenced 30 days jail, a 1 year license revocation and $100 fine for careless driving. He was denied IFP status to proceed with his appeal to district court but the public defender was permitted to continue representing him. The district court affirmed the convictions and sentences.

Issues: The district court erred in (1) affirming the county court’s admission of evidence surrounding restitution paid; (2) affirming the county court’s imposition of an excessive sentence; (3) affirming the overruling of Appellant’s motion to proceed IFP.

Wednesday, May 29, 2013

S-12-0434, State v. Trevelle Taylor (Appellant)

Douglas County, Judge Marlon Polk

Attorneys: Thomas C. Riley (Public Defender for Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Count I: Murder in the first degree; Count II: Use of a weapon to commit a felony

Proceedings below: A jury found Appellant guilty of both crimes. He was sentenced to life imprisonment.

Issues: I. The trial court committed reversible error when the state was allowed to present inadmissible hearsay evidence from a witness about where the firearm used in this homicide was located. II. The trial court erroneously allowed the state to present an in court identification of the defendant by a witness whose identification of the appellant was tainted by an unduly suggestive one man show up procedure. III. The appellant was under eighteen years of age at the time of the offense for which he was convicted and a sentence of life imprisonment is a violation of the federal and state constitutional protection against cruel and unusual punishment. IV. The proper remedy to be applied to the appellant under the Miller v. Alabama rule is that his sentences on the murder convictions should be set aside and he should be re-sentenced for the those convictions as Class IB felonies.

S-12-1006, State v. Loucas Keyser (Appellant)

Buffalo County, Judge John P. Icenogle

Attorneys: Charles D. Brewster (Appellant) --- George R. Love (Attorney General’s Office)

Civil: Postconviction; life imprisonment for 2^nd degree murder

Proceedings below: After a bifurcated evidentiary hearing, the court denied Appellant’s motion for postconviction relief.

Issues: A. The district court erred by $anting the State's Motion to Bifurcate the evidentiary hearing and allowing the State to present its evidence prior to the Appellant's presentation of evidence. B. That the district court erred in making a finding that the Appellant was not entitled to postconviction relief without giving the Appellant an opportunity to present evidence of his side of the case in support of his verified motion. C. The district court erred by treating statements contained in Exhibit #2 offered to the court by the State as "testimony" when the Exhibit was offered for a limited purpose and not for the truth of the matter asserted. D. The district court erred by finding that the Appellant should not be granted postconviction relief in violation of the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001et seq. and the United States Constitution, 5th, 6th, and 14th Amendments and also the Neb. Const. art. I §§ 3, 11. E. The district court erred in failing to finding that Appellant was unconstitutionally deprived of effective assistance of counsel when his trial counsel failed to adequately inform Appellant of the existence, or possible existence, of exculpatory evidence prior to Appellant's acceptance of a plea bargain in violation of the Nebraska Postconviction Act, Neb. Rev. Stat.§ 29-3001, et. seq. and the United States Constitution, 5th, 6th and 14th Amendments, and the Neb. Const. art. I §§ 3,11.

S-12-0957, State v. Terrence D. Moore (Appellant)

Douglas County, Judge W. Mark Ashford

Attorneys: W. Patrick Dunn (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The trial court denied Appellant’s verified motion for postconviction relief without granting an evidentiary hearing.

Issues: The district court erred in denying Appellant an evidentiary hearing on his verified motion for postconviction relief.

S-12-0112, State v. Dean L. Osborne (Appellant)

Saunders County, Judge Mary C. Gilbride

Attorneys: Cynthia Lamm (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal: 3^rd degree sexual assault of a child; obscene motion picture, show or presentation to a minor

Proceedings below: The county court found Appellant guilty. He appealed to the district court which affirmed. The Court of Appeals affirmed in part, and in part reversed and remanded with directions to dismiss. See State v. Osborne, 20 Neb. App. 553 (2013) (Irwin, J., dissenting). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on review: 1. The Court of Appeals erred in failing to find the evidence presented, by the State was legally insufficient to support the Appellant's conviction of violating Neb. Rev. Stat. §

28-320 (1) (Reissue 2008). 2. The Court of Appeals erred in failing to find that Mr. Osborne received ineffective assistance of Counsel.

Thursday, May 30, 2013

S-12-1047, State v. Joshua D. Leibel (Appellant)

Lancaster County, Judge Karen B. Flowers

Attorneys: Scott Helvie (Public Defender’s Office) (Appellant) --- Melissa R. Vincent (Attorney General’s Office)

Criminal: Driving during revocation, first offense, Class IV felony

Proceedings below: The trial court found sufficient evidence to support the conviction and judged Appellant guilty. He was sentenced 90 days in jail with a 15 year license revocation. He was authorized to obtain an ignition interlock permit as soon as eligible by statute.

Issues: The district court erred in (1) admitting Exhibit 1, as it contained hearsay and violation of confrontation; (2) failing to apply State v. Hernandez, 283 Neb. 423 (2012) to this case; (3) finding sufficient evidence to support a conviction; (4) imposing an excessive sentence.

S-12-1166, In re Application of A-18503, Water Division 2-C, Middle Niobrara Natural Resources District, Lower Niobrara Natural Resources District, Jack Bond and Thomas Higgens (Appellants) v. Department of Natural Resources.

Department of Natural Resources

Attorneys: Donald G. Blankenau, Thomas R. Wilmoth (BlankenauWilmoth Jarecke LLP) (Appellants) --- Stephen D. Mossman (Mattson Ricketts) (for Nebraska Public Power District) --- Justin D. Lavene (Attorney General’s Office)

Civil: water appropriation

Proceedings below: (From the DNR brief, page 1): This appeal involves DNR's receipt of four objections and requests for a contested case hearing concerning Application A-18503 filed by Nebraska Public Power District ("NPPD") to appropriate surface water from the Niobrara River for its Spencer, Nebraska hydropower facility. Appellants' individually-filed petitions were consolidated and reviewed by the Director in regards to their sufficiency in meeting jurisdictional requirements. The Director issued an Order dismissing Appellants' petitions due to a lack of standing. For the NRD Appellants, the Director found no standing because they failed to plead sufficient facts establishing that approval of NPPD’s application will cause an injury in fact to a legally cognizable interest. As for the individual Appellants, the Director determined the interests they possessed could not be adversely impacted by the granting of the appropriation.

Issues: The director erred in (1) applying an improper standard of review; (2) concluding the NRD Applicants lacked a legally cognizable interest sufficient to confer standing to object to the granting of A-18503; (3) finding the legally cognizable interests of Bond and Higgens would not be adversely affected in a manner sufficient to confer standing; (4) failing to consider broader impacts on the public interest as alleged by all Appellants.

S-12-1155, Marie Shada (Appellant) v. Farmers Insurance Exchange

Douglas County, Judge Duane C. Dougherty

Attorneys: Martin A. Cannon (Appellant) --- Daniel P. Chesire, Kara S. Jermain (Lamson Dugan & Murray LLP)

Civil: Contract; Claim for Underinsured Motorist Benefits under policy

Proceedings below: Appellant brought her action for UIM benefits under her policy of insurance with Farmers. Farmers filed a motion for summary judgment arguing the action was time-barred. The court granted the motion and dismissed the case. Farmers filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in finding Appellant’s case was time-barred.

S-12-0126, State v. De’Aris Trice (Appellant)

Madison County, Judge James G. Kube

Attorneys: Patrick P. Carney, Ryan J. Stover (Carney Law PC) (Appellant) --- Kimberly Klein (Attorney General’s Office)

Criminal: 2^nd degree murder

Proceedings below: A jury found Appellant guilty of 2^nd degree murder and he was sentenced to a term of 40 years to life imprisonment.

Issues: 1. The prosecutor is guilty of misconduct for instructing the jury in opening that Mr.

Trice was pursuing a theory of self-defense and referencing evidence which was inadmissible. 2. Trice's counsel was ineffective at opening statement for failing to object or request a mistrial due to the prosecutor's reference to inadmissible evidence. 3. The district court erred when it failed to sustain the objection of Trice's counsel to the last minute endorsement of witness Robyn Baldwin. 4. Trice's counsel was ineffective if they failed to competently research and prepare for the testimony of Robyn Baldwin. 5. Trice's counsel was ineffective for failing to object to the last minute endorsement of witnesses Jaron Hoard, and Guadalupe Reyes and failure to competently research and prepare for their testimony. 6. Trice's counsel was ineffective for failing to remove or strike for cause certain jurors. 7. The district court erred by admitting hearsay testimony from witness Guadalupe Reyes. The prosecutor committed misconduct by creating and repeatedly referring to a non-existent motive of hatred between two groups. 9. Trice's counsel was ineffective for failing to object to, or move for a mistrial based on prosecutorial misconduct involving motive. 10. Trice was denied effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and art. I § 11 of the Nebraska Constitution, when trial counsel failed to challenge the prosecutor’s expert. 11. The district court erred when it sustained objections relating to the testimony of Michael Bauer. 12. Trice's counsel was ineffective for failing to call a material witness. 13. The prosecutor committed misconduct in closing statement for referring to punishment of the defendant and justice for the victim's family. 14. Trice's counsel was ineffective for failing to request a change of venue due to pretrial publicity. 15. Trice was denied effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and art. I §11 of the Nebraska Constitution, when his trial counsel advised him not to testify at trial. 16. The cumulative effect of the foregoing errors and prosecutorial misconduct deprived Mr. Trice of his rights to due process and a fair and impartial jury trial.