Friday, July 31, 2009
Nebraska Court of Appeals reverses administrative license revocation when police officer did not make statement in sworn report that defendant was operating a vehicle while intoxicated. Defendant was outside vehicle after 1 car accident. "the arresting officer did not make a traffic stop and failed to include sufficient factual allegations in the Sworn Report to indicate an allowable inference that Barnett, of the people on the scene at the time of the officer’s arrival, was the one who had been driving the vehicle. As such, the Sworn Report in the present case was insufficient to confer jurisdiction on the Department "Barnett v. Department of Motor Vehicles, A-08-211, 17 Neb. App. 795
No ineffective assistance of appellate counsel when counsel on appeal fails to challenge earlier requirement that second degree murder required malice instruction nor that second degree murder law section 28-304 is unconstitutional because it lacks a malice requirement. State v. Thomas, S-08-1177, 278 Neb. 248
Overruled ineffective counsel motion affirmed in Nebraska Supreme Court against defendant convicted of smothering his girlfriends child, intentional child abuse resulting in death. Counsel's failure to redact defendant's confession that referred to other injuries from abuse was harmless and not ineffective counsel, appellate counsel also not ineffective. State v. Jim, S-08-953, 278 Neb. 238
Defendant in Omaha murder trial appealed on self-defense claiming the rival "Murdertown Gang" MySpace page contained threats to him. conviction affirmed because Defendant could not produce actual webpage screenshot showing the threat and could not prove the victim was responsible for the threatening web content. State v. Goynes, S-08-810, 278 Neb. 230 "Assuming without deciding that third-party threats would be admissible in cases of self-defense, the district court did not err in excluding the testimony of the third-party threats"
Trial judge's supplemental jury instruction in trial for intentional child abuse resulting in death, Class IB felony § 28-707(6) RRS Neb. (Reissue 2008) that explained prong of instruction on denying care as an alternate finding for guilt was not prejudicial error. Defendant did not make a facial challenge to the punishment under Class IB felony under Neb. Rev. Stat. § 28-707(6) (Reissue 2008) as excessive. State v. Robinson, S-08-433, 278 Neb. 212
Order of the Kneepads Update: State ex rel. Counsel for Dis. v. Koenig, S-08-128, 278 Neb. 204 120 days suspension, subsequent discipline, see Koenig, Lyle J. 264 Neb. 474 (2002)S-01-000634 for "just kidding" to blackmail a prosecutor to drop a case.