Sunday, December 31, 2006
Eighth Circuit gets it: Reverses excessively lenient sentence for Mexican meth dealer; deportation no reason to reduce a sentence especially after defendant ignored deportation orders beforeSentencing law and policy doesn't like the Eighth Circuit's frequent reversals of sentences when it finds the District Court went too far under the guidelines range. Maybe, but the two most recent cases more than justified resentencing for harder time, Kane,(US District Court ED of Mo.) the pimping momma and Morales-Uribe (SD of Iowa) the hard working immigrant drug dealer who had already been deported. The appeals court noted something that escaped the attention of the trial level court: deported aliens too frequently find their way back into the country. "The PSR, to which Defendant did not object, indicates that he has attempted to enter the United States illegally on three separate occasions. Two of these attempts, one being successful, occurred even after the Government deported him on October 27, 1999. This indicates strongly that deportation will not protect the people of the United States from further crimes by Defendant."
Friday, December 29, 2006
Order of the Kneepads update: ”Feminazis?” disbarred Nebraska attorney; “Femifascists?” St Louis trial judge and now bestselling author of legal system’s clever portmanteau for feministsSt Louis today reports that St Louis Circuit Court Judge Robert Dierker has stirred up a hornets’ nest with his forthcoming polemical expose of the legal system in which he condemns the “Femifascists” and the “Cloud Cuckooland of Radical Feminism.” He has titled the book "The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault." The usual suspects promise to take action against the Judge for exercising his free speech rights, and his colleagues have termed his publication “professional suicide.” How would the good judge fare in Nebraska, where Attorney Beach was disbarred in part for calling a female attorney opposing him on a case a “feminazi bitch.” Perhaps the good judge was more judicious in creating a new portmanteau with fascist and was not just thinking of Rush Limbaugh’s coining “feminazi” first. in a private letter
Sunday, December 24, 2006
Order of the Kneepads update: Nebraska Supreme Court suspends attorney who forged his client's signature and caused a notary to document the forgery for 1 year with probationary conditionsState ex rel. Counsel for Discipline. v. Riskowski, S-05-1168, 272 Neb. 781 Respondent attorney failed to deposit his client's divorce retainer in his trust account; agreed to suspend her temporary alimony with out permission; and submitted a property summary before trial with the client's forged and notarized signature. The referee recommended an 18 month suspension with probationary conditions. The Nebraska Supreme Court in a rare move drops the recommended suspension to one year. Although Respondent received a prior reprimand for mishandling a criminal appeal, he argued for a 90 day suspension. This time the Respondent's counsel's argument that there was no harm done because the Court didn't require the client to sign the exhibit may have carried the day and saved his client the disciplined attorney some suspension time. we find most troubling Riskowski's conduct with regard to preparation of his client's property statement. Riskowski, without his client's consent, forged his client's signature on the property statement and then instructed his secretary to notarize the document. The property statement was then submitted to the court. We have consistently imposed substantial sanctions for conduct of this nature. See, State ex rel. Counsel for Discipline. v. Rokahr, 267 Neb. 436, 675 N.W.2d 117 (2004) (1-year suspension for knowingly filing a back-dated easement); State ex rel. Counsel for Discipline. V. Mills, 267 nab. 57, 671 new 765 (2003) (2-year suspension based, in part, on altering and falsely acknowledging documents filed in county court). Riskowski asserts that his act of signing his client's signature and having the document notarized is in some way less reprehensible because the document would have been valid without the client's signature and notarization. We again disagree. Whether a client's signature and an acknowledgment before a notary are required on a document is irrelevant. The fact remains that Riskowski knowingly filed with the court a document containing a forged signature and an inaccurate notarization. A purposeful misrepresentation to a court is itself a serious violation, and Riskowski jeopardized his client's interest and the integrity of the court by doing so.
Saturday, December 23, 2006
Canadian lawyers: doing the job American attorneys wont do any moreIn re Application of Budman, 272 Neb. 829 Filed December 22, 2006. No. S-34-060001. The Supreme Court admits another bar applicant from Canada,without examination, finding that although the applicant did not have a regular American law degree he could get in under the waiver rules.
Nebraska Supreme Court allows father whom a court had earlier determined him to be the child's father to dispute exgirlfriend's adoption, cant decide whether its a case of statutory interpretation or constitutional lawIn re Adoption of Jaden M., 272 Neb. 789 Filed December 22, 2006. Earlier a court found the defedant to be the child's father and ordered support, which the defendant mostly paid. The mother/exgirlfriend then married and her new husband sought to adopt the child. MOther contended that since the father failed to register with father's registry and he appeared to not meet any other standard in 43-104.22 that require father's consent. Nebraska Supreme Court finds for the father's rights, finding that an adjudicated father is neither a claimed father(§ 43-104.02) or a "claimant-father" (§ 43-104.05.)But then even if Nebraska statute 43-104.22 somehow did exclude the defendant, it is unconstitutional to exclude an adjudicated father from those entitled to consent before adoption. We, however, conclude that § 43-104.22(7) does not apply to a father who has been adjudicated the child's father in a paternity action. Applying § 43-104.22(7) infringes upon Brian's constitutionally protected parental rights. Because he has provided support and established familial ties with his biological child, his interest in personal contact with his child has acquired substantial protection. In re Application of S.R.S. and M.B.S., 225 Neb. 759, 408 N.W.2d 272 (1987). His rights must therefore be determined under the considerations delineated in § 43-104.22, apart from subsection (7). As in White v. Mertens, 225 Neb. 241, 404 N.W.2d 410 (1987), Tracey and Ronald's argument fails because Brian is not "a person claiming to be the father of the child" under § 43-104.02 or a "claimant-father" under § 43-104.05--he is Jaden's biological father. The court erred in applying the registry statutes to circumvent the need for Brian's consent.
Tuesday, December 19, 2006
Owner of easement for sewage disposal since the late 60’s disputed relocation of the lagoons; Court ordered adjacent landowner to rewrite the easement but did not award any other damages or relief; Nebraska Court of Appeals upholds awarding costs to the defending adjacent landownersR & S Investments v. Auto Auctions, 15 Neb. App. 267 Filed December 19, 2006. No. A-04-1098 Technically the easement owner “won” the case but the judge agreed only that it should get a rewritten easement from the landowner who was reconstructing and relocating the lagoons to meet current state environmental regs. The easement owner asked for costs but the court awarded costs to the defendants. Nebraska court of appeals affirms awarding costs to the side that was the nominal losing party R&S asserts that the district court erred in taxing costs of the action to R&S. Neb. Rev. Stat. § 25-1708 (Reissue 1995) provides that "[w]here it is not otherwise provided by this and other statutes, costs shall be allowed of course to the plaintiff, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific real or personal property." Neb. Rev. Stat. § 25-1711 (Reissue 1995) provides, in relevant part, that "[i]n other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable." In equity actions, taxation of costs rests in the discretion of the trial court. Hein v. M & N Feed Yards, Inc., 205 Neb. 691, 289 N.W.2d 756 (1980); Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954). A judicial abuse of discretion requires that the reasons or rulings of a trial judge be clearly untenable, unfairly depriving a litigant of a substantial right and a just result. City of Lincoln v. Realty Trust Group., 270 Neb. 587, 705 N.W.2d 432 (2005). The present action, of course, is an equity action, and we find no abuse of discretion in the district court's taxation of the costs of this action to R&S
Posted by stan_sipple at 2:58 PM
Friday, December 15, 2006
Inmate may not challenge in motion for post conviction relief the trial court’s failure to properly credit his time served pending sentencingState v. Barnes, 272 Neb. 749 Filed December 15, 2006. No. S-06-351. Inmate raised in his motion for post conviction relief alleging primarily ineffective counsel that resulted in his pleading guilty to murder in 1994 in the Pierce County District Court an additional claim that the trial court had failed to credit him enough time served while the inmate waited for sentencing. Supreme Court denies this as a valid ground for post conviction relief : Post conviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999). An alleged sentencing error with respect to credit for time served does not fall within this narrow category of relief. Moreover, a motion for post conviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005); State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004). Because the sentencing issue could have been raised on direct appeal, it is procedurally barred in this action. The district court did not err in denying post conviction relief on this ground
Posted by stan_sipple at 3:30 PM
Nebraska Supreme Court: grandparent lacked standing to object to the constitutionality of § 43-1802(1)(c)RRS Neb in paternity action that abated due to the putative father’s death.Bullock v. J.B., 272 Neb. 738 Filed December 15, 2006. No. S-05-636. The Douglas County District Court dismissed the putative father’s PR’s attempt to revive his action to establish his paternity over JB. The PR, apparently the deceased’s mother sought on her own grandparent visitation. The District Court dismissed this claim as well. The case caption does not indicate the PR filed a personal action for grandparent visitation. Supreme Court refuses to consider constitutional challenge to 43-1802 because PR lacked standing The paternity statutes, Neb. Rev. Stat. §§ 43-1401 to 43-1418 (Reissue 2004), make no mention of grandparent visitation. Instead, Neb. Rev. Stat. § 43-1803 (Reissue 2004) provides the procedure for requesting grandparent visitation. The record indicates that Grandparent/PR has not requested grandparent visitation under this section in the case under review. Given the absence of a grandparent visitation claim, Janet lacks standing to challenge the constitutionality of § 43-1802(1)(c) in this case. Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question; to establish standing, the contestant must show that as a consequence of the alleged unconstitutionality, the contestant is, or is about to be, deprived of a protected right. State v. Cushman, 256 Neb. 335, 589 N.W.2d 533 (1999).
Posted by stan_sipple at 3:18 PM
Tuesday, December 12, 2006
Follow up: United States Supreme Court reverses 9th Circuit ruling that found courtroom spectators' wearing large buttons that pictured the "accused" defendant's victim required a new trial; majority opinion by Justice Thomas finds no "clearly established" federal law as Lucky Iromuanya's attorneys would have us believe CAREY, WARDEN v. MUSLADIN, MATHEW No. 05-785. Argued October 11, 2006 -- Decided December 11, 2006 Shades (or buttons) of State of Nebraska v. Lucky Iromuanya(NSBA summary) the Ninth Circuit court of appeals had reversed at habeas level the defendant's conviction because the family members of the victim sat in the front of the courtroom during the trial wearing photograph buttons of the victim depriving the defendant of his right to a fair trial under the Fourteenth Amendment and Sixth Amendment. the United States Supreme Court, Justice Thomas for the majority reverses finding the law on private conduct in the courtroom, aside from mob scene trials, a murky area: the effect on a defendant’s fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.2 And although the Court articulated the test for inherent prejudice that applies to state conduct in Estelle v. Williams, 425 U. S. 501, 503–506 (1976 and Holbrook v. Flynn, 475 U. S. 560, 568 (1986), we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices. Maybe the Supreme Court will find it less murky on Lucky's pro bono lawyers' cert pet to the Supremes
Posted by stan_sipple at 3:26 PM
Monday, December 11, 2006
Nebraska Beef loses appeal in Eighth Circuit Court of Appeals after Minnesota federal court granted summary judgment on its complaint for excessive over-advance fees Wells Fargo charged it061207P.pdf 12/11/06 Nebraska Beef, Ltd. v. Wells Fargo BusinessU.S. Court of AppealsCase No. 06-1207 District of Minnesota. Nebraska Beef before going belly up in 1997 drew advances from Wells Fargo that exceeded its credit limit. Plaintiff sued to recover Wells Fargo's overadvances that totalled $211k; Plaintiff complained that it did not agree to the increased advance charges Wells Fargo was charging it. District Court dismissed case on summary judgment finding the parties properly agreed to a unilateral contract for the increased advance charges, under Minnesota law. "When Nebraska Beef began to withdraw funds through the May 1997 overadvance, it did so fully aware that an extension beyond the agreed line of credit would come at an additional cost. Wells Fargo's "offer" to permit continued overadvances at the stated terms constituted a unilateral contract offer that was accepted by Nebraska Beef's election to access the overadvance. These terms, as reflected in the third amended agreement and the May 23 letter, were sufficiently definite to establish a unilateral contract offer under Minnesota law."
Posted by stan_sipple at 3:15 PM
Saturday, December 09, 2006
Nebraska Supreme Court slaps the Sarpy District Court again for mishandling repeat drunk drivers' sentencingsState v. Caniglia, 272 Neb. 662 Filed December 8, 2006. No. S-05-069. Earlier this year in State v Vasquez S-05-1019, 271 Neb. 906 the Supreme Court reversed tthe Court of Appeals for trying to impose a real sentence on a repeat drunk driver from Sarpy County. Too bad the State was unable to challenge that lenient sentence because it was a misdemeanor. This time in State v Caniglia, the Appeals Court wanted to impose an appropriate sentence on the defendant Caniglia who faced resentencing after the court revoked her DWI 4th offense probation. Sarpy County District court however imposed no sentence. The Nebraska supreme Court rules that no sentence is no judgment, and reverses the case to the district court. This time however as a felony the State can appeal any ridiculously lenient sentence Sarpy Countydecides to impose.The district court found that Caniglia violated probation but failed to issue a proper order under Â§ 29-2268. In particular, the district court did not impose a sentence. Because there was no sentence, the Court of Appeals lacked jurisdiction to hear the appeal brought by the prosecuting attorney claiming an excessively lenient sentence under Â§ 29-2320. The Court of Appeals erred when it concluded that it had jurisdiction and thereafter considered the merits. Because the Court of Appeals lacked jurisdiction, we vacate the judgment of the Court of Appeals and remand the cause to the Court of Appeals with directions to vacate the order of the district court and remand the cause to the district court with directions to enter a proper order outlining the consequences resulting from the finding that Caniglia had violated probation.
Posted by stan_sipple at 7:45 AM
Nebraska court of appeals affirms Hall district court award of alimony to wife when both spouses were practicing attorneys; although child support guidelines call for averaging 3 years of income for determining child support, the appeals court also approves averaging the husbands income over five yearsWagoner v. Tracy (Not Designated for Permanent Publication) Filed December 5, 2006. No. A-05-301. As the court of appeals notes, but in this unpublished opinion, "The instant case presents an interesting scenario: whether alimony is warranted where a spouse had interrupted his or her career for 8 years, but when the spouse resumed his or her career, the party earned a similar annual income as when the career was interrupted.Both spouses were practicing attorneys however the wife left a Lincoln law firm to move to Grand Island and also took off several years to care for the parties special needs children. The Hall County District Court agreed that the wife's annual income would have been $8K higher with the county attorney's office if she had not taken time off. She also had worked for her father's law firm but didnt like working for him! The husband's income varied widely. In 2000 his Schedule C net was $52k, then it was negative for a few years and finally a plus $446K in 2004. The district court ordered $800 per month alimony to the wife and figured child support based on the father's average income that included 2 positive years and three negative. The court of appeals finally approves awarding $7500 attorneys for the wife for her total bill of $32k from the Remboldt Ludtke law firmthe parties had a lengthy marriage lasting 17 years. Tracy interrupted her career for 8 years to care for the parties' children, including the twins, who required special care, and also cared for Wagoner's parents during their illnesses. Tracy did suffer a loss of earning power, as is evidenced by the fact that she would be earning $53,476.56 instead of $46,320.57 had she worked for the Hall County Attorney during the years that she was a stay-at-home parent. Further, we also note that there is an income disparity between Wagoner and Tracy which may be considered in determining whether alimony is appropriate. Thus, we find that the district court did not abuse its discretion in awarding alimony of $800 per month for a period of 5 years. In the instant case, the district court had available to it Wagoner's income from his law practice, farm rental income, and rental income from his law partner. Although Wagoner's law office showed losses in previous years due to billing inactivity, much of that billing was taking place during the 2004 tax year and was reflected in the $446,961 estimated net Schedule C profit for that year. The district court did not abuse its discretion in using Wagoner's average income in determining his child support obligation.
Posted by stan_sipple at 7:04 AM
Thursday, December 07, 2006
Omaha defense attorney James Martin Davis: "We will fight 'tooth and nail' against charges that Westroads grill installer was practicing dentistry without a license."Omaha.com If all you want for Christmas is to gild your front teeth, you may have to buy the bling-bling somewhere other than the Gold Plaza II kiosk at Crossroads Mall. That's because an employee of that shop, Bhavin Dalal, faces a felony charge of practicing dentistry without a license. He's accused of helping customers fit their teeth for glittering mouthpieces known as grills. It's the first such case in Nebraska involving the hot hip-hop fashion accessory. And Dalal and his attorney, James Martin Davis, plan to fight it tooth and nail. Dalal entered a not guilty plea Friday in Douglas County Court. Davis blasted the Nebraska Health and Human Services System for its investigation of Dalal and the charge that resulted. "It's overzealousness on the part of a bunch of bureaucrats" who don't want people to wear grills, Davis said. An HHS spokeswoman said officials acted out of concern for public health, because ill-fitted grills cause problems. "We're not against bling-bling," said spokeswoman Marla Augustine. "It's just when it's applied to the mouth and teeth and causes damage, that's where we're opposed to it." Bling-bling, for the record, is hip-hop slang for jewelry and other accessories. Grills, also known as fronts, are custom-fitted mouthpieces made of gold or platinum, sometimes with diamond inlays. They can be removable or permanent. They can cost hundreds or thousands of dollars. A mold is made of the buyer's teeth, and then the jewelry is manufactured to fit. The state alleges that Dalal did something that only dentists can do in Nebraska - help make an impression of people's teeth, then sell them dental appliances. In May 2005, the Nebraska Board of Dentistry ordered Dalal and another Crossroads kiosk, Treasure Box, to stop their "activities surrounding the sale of gold grills" without a Nebraska dental license. In a letter, the state told Dalal that taking impressions and selling grills was the unlicensed practice of dentistry. Dalal said Friday that he stopped selling grills for a while after receiving the order. But he started selling them again after another lawyer advised him that he could do so as long as he didn't make the dental impressions himself. Then came a bling-bling sting. An undercover operative, working with a state investigator, went to Gold Plaza II last August. Dalal offered to sell him a gold custom grill for $260. Dalal is accused of giving the operative a kit - a dental tray packed with a puttylike substance - to make an impression of his teeth. Dalal told the operative how to make the impression, HHS Investigator Jeff Newman said in an affidavit for an arrest warrant. The warrant was issued after the gold grill came back from Gold II's out-of-state factory. Dalal turned himself in. He is free without bail. Davis said the state is misapplying the law under which his client is charged. He said he'll push for an acquittal. If state officials think grills are unsafe or have a problem with the way they were sold at the kiosk, Davis said, they should make grills illegal or take less severe remedies than a felony criminal charge, such as filing a civil lawsuit. Augustine said the Board of Dentistry interprets the statute differently from Davis - that only a dentist can make an impression of teeth and sell a dental appliance. "The reason (for the case) is that grills, when not properly applied, can cause irreparable damage to the teeth and gums," she said.
Posted by stan_sipple at 1:09 PM
Wednesday, December 06, 2006
Eighth Circuit affirms summary judgment against Farmer who caught metal fragments in his eye from pry bar he was hitting with a hammer while he was not wearing safety gogglesKrajewski v. Enderes Tool Company David U.S. Court of Appeals 054031P.pdf 12/04/06 District of Nebraska Farmer hammered on long pry bar to jar loose a stuck sprocket on his combine. Because it was getting dark he removed his "tinted" safety goggles. As he struck the pry bar with a hammer a fragment of metal hit his unprotected eye. Farmer sued. The Federal District Court dismissed on summary judgment. Eighth Circuit Court of Appeals affirms on Nebraska assumption of the risk and proximate cause. Judge Gibson dissenting Assumption of risk is an affirmative defense, and the defendant must show that Â(1) the person knew of and understood the specific danger,(2) the person voluntarily exposed himself or herself to the danger, and (3)the personnÂs injury or death or the harm to property occurred as a result of his oher exposurere to the danger.Â Neb. Rev. Stat. Â§ 25-21,185.12. The doctrine Âappa subjectivective standard, geared to the individual plaintiff and his oractual comprehensionnsion and appreciation of the nature of the danger he or she confronts.Â Pleiss v. Barnes, 619 N.W.2d 825, 829 (Neb. 2000)... Plaintiff's undisputed testimony, indicates that he knew and understood the specific danger at issue Âwhen hammeringmmering a metal hammer against a tool, there is a danger of chipping metal hitting the eyes.
Posted by stan_sipple at 3:06 PM
Sunday, December 03, 2006
Nebraska Supreme Court rules that Sarpy County District court retained jurisdiction over a child custody case even though the mother and the children had moved to Maryland and registered the Sarpy county dissolution decree there.Watson v. Watson, 272 Neb. 647 Filed December 1, 2006. No. S-05-1423. Parties divorced and later the wife won a contested motion to move with the three children to Maryland. The wife then registered the decree in Maryland. When Husband complained that Wife was not allowing visitation, Wife won motions in Maryland and Husband lost his contempt motion in Sarpy County District Court. Sarpy County District Court ruled it had lost jurisdiction to Maryland and in any event Maryland was a more convenient forum. Supreme Court reverses Sarpy County District Court. Holding: Jurisdiction remains in Sarpy county as it was the initial court to assert jurisdiction and one parent continued to reside in the state See Uniform Child Custody Jurisdiction Act Â§ 43-1239. Accord Shanoski v. Miller, 780 A.2d 275 (Me. 2001). Jurisdiction remained in the district court either until jurisdiction was lost under Â§ 43-1239(a) or until the court declined to exercise its jurisdiction under Â§ 43-1244 for the reason of an inconvenient forum.Since the Sarpy County District Court did not lose 43-1239 jurisdiction nor did it properly decline jurisdiction under 43-1244, the District Court erred in dismissing the Husband's contempt proceedings. Under Â§ 43-1239 this jurisdiction would continue unless the district court determined that neither the children, nor the children and one parent, nor the children and a person acting as a parent had a significant connection with this state and that substantial evidence was no longer available in this state concerning the children's care, protection, training, and personal relationshipsExclusive and continuing jurisdiction could be lost only if the children, Jill, and Robert no longer resided in the state. See Â§ 43-1239(a)(2). The district court erred in making such a determination because Robert continued to reside in Nebraska.A court with exclusive and continuing jurisdiction under the UCCJEA may decline to exercise its jurisdiction if it determines that it is "an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." See Â§ 43-1244(a). Although the district court concluded that the Maryland court was the "more appropriate and convenient forum," the district court failed to consider the relevant factors for relinquishing jurisdiction under Â§ 43-1244.Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factorsÂ§ 43-1244(b). 43-1239 or that a Maryland court was a more convenient forum under Â§ 43-1244.
Posted by stan_sipple at 8:46 PM
Nebraska Worker Compensation Court releases summaries for FY 2005-2006 Supreme Court and published Court of Appeals decisions concerning worker compensation lawThe Nebraska Worker Compensation Court's summaries (pdf format) of last fiscal years worker comp decisions are now available.
Posted by stan_sipple at 11:37 AM
Nebraska Supreme Court rejects murder defendant's Daubertchallenge to prosecutor's offering cellular telephone records that included the locations of the cell towers from which various cell phone cals had been transmitted.State v. Robinson, 272 Neb. 582 Filed December 1, 2006. No. S-05-107. During a murder trial in Douglas County, the defendant challenged the State's offer of cell phone records from Alltel, Cox and Cricket. The Supreme Court approves admitting computer print outs of the call records and also evidence from the records that identified the towers from which the phone company had transmitted various calls. Although this involved technical issues, the Supreme Court dismisses the Defendantss Daubert/Shafersmann challenge, explaining that the records did not present any opinion evidence. If a witness is not offering opinion testimony, that witness' testimony is not subject to inquiry pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)..Phone company rep's testimony was limited to explaining the data contained in exhibits 112 and 113, and he did not offer any opinions based on that data. Compare Pullin v. State, 272 Ga. 747, 534 S.E.2d 69 (2000) (inquiry into scientific theory required where expert opined, based on cellular telephone location data, that particular telephone calls could not have been made from location asserted by defendant). Since Phone co rep offered no expert opinion, his testimony presented no basis for an inquiry into his reasoning or methodology pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). To the extent that the defendant wanted to raise more general questions about the reliability of the records and the cellular location data, Phone rep was available for cross-examination on those issues.
Posted by stan_sipple at 8:07 AM