S-23-0159 State of Nebraska (Appellee) v. Kevin S. German (Appellant)
Appeal from the District Court for Chase County, Judge Patrick M. Heng
Attorneys: Robert W. Kortus (Nebraska Commission for Public Advocacy for Appellant) and Melissa R. Vincent (Asst. Attorney General for Appellee)
Criminal: Life Imprisonment
Proceedings below: Appellant was convicted of second-degree murder, kidnapping, and first-degree false imprisonment. He was sentenced to sixty (60) to eighty (80) years in prison, a concurrent term of life imprisonment, and a consecutive term of thirty (30) to thirty-six months in prison, respectively. Life imprisonment cases are direct appeals to the Nebraska Supreme Court.
Issues: Appellant makes the following assignments of error: 1) The district court clearly erred and abused its discretion in admitting photographic evidence of decedent’s child which denied Appellant a fair trial and violated due process; 2) Appellant was denied due process rights and a fair trial because of incorrect jury instructions on aiding and abetting a crime and the refusal to give tendered instructions; 3) Appellant was erroneously sentenced to life imprisonment for kidnapping in violation of Alleyne v. United States, 570 U.S. 99 (2013), the Sixth Amendment to the United States Constitution, Article I, § 6 of the Nebraska Constitution and the due process clause of both the federal and state constitutions; 4) Trial counsel was constitutionally ineffective in violation of the 5th , 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to move to suppress Appellant’s statement, properly object at trial to that statement and move to strike or move for mistrial following improper admission of evidence of the statement; 5) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3, 6 and 11 of the Nebraska Constitution by failing to object to incorrect jury instructions or tender correct jury instructions on the offense of kidnapping; 6) Trial counsel was Constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to seek redaction of irrelevant and unduly prejudicial statements within Appellant’s custodial statement; 7) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to mitigate the damage of Appellant’s custodial statement; 8) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by failing to request a curative jury instruction on implicit and unconscious bias; 9) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by offering evidence that Russell Mann and Keona Carter were subject to the possibility of polygraph testing; 10) Trial counsel was constitutionally ineffective in violation of the 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by cross-examining the DNA analyst in respect to the testing procedure for the water bottle; and 11) Trial counsel was constitutionally ineffective in violation of the 5th, 6th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution in respect to advice provided on the decision to waive the right to testify by providing unreasonable advise necessary for a meaningful decision.