Thursday, November 26, 2009

Nebraska Supreme Court denies post-conviction relief to defendant who challenged his conviction of manslaughter and use of a weapon to commit a felony as inconsistent counts. Court rules that the underlying intentional felony was the armed assault that resulted in a manslaughter conviction. State v. Sepulveda, S-08-1291, 278 Neb. 972. the act of firing the gun at Geiger which resulted in Geiger’s death was an intentional and unlawful assault and was the predicate offense of use of a firearm to commit a felony. Intentional assault rather than manslaughter was the predicate felony to use of a firearm to commit a felony; therefore, convictions for both manslaughter and use of a firearm to commit a felony were not inconsistent. Sepulveda’s trial counsel’s failure to raise the issue was not deficient performance and did not result in ineffective assistance of counsel. Because Sepulveda’s trial counsel did not render ineffective assistance of counsel, Sepulveda’s appellate counsel was not ineffective for failing to address the issue on appeal.
Nebraska Supreme Court affirms defendant's conviction for driving while intoxicated, fourth offense, over his objection that records of two prior convictions were invalid because the records the State offered to prove the prior offenses lacked file stamp dates. State v. Macek, S-08-1196, 278 Neb. 967 Mark A. Macek appeals his guilty plea and conviction in the Lancaster County District Court for driving under the influence of alcohol, fourth offense, 60-6,197.03 (7). Macek claims that two of his three prior convictions were improperly used to enhance his sentence because they were not final, appealable orders. We affirm the decision of the district court. Macek is making an impermissible collateral attack on his prior DUI convictions and that those prior convictions were properly used for enhancement purposes.
Nebraska Supreme Court upholds juvenile's confession to a shooting homicide and declines to modify the "totality of circumstances" test for special considerations for juveniles, as the American Bar Association has recommended; also the police officers' characterization of the shooting as an accident did not mislead the defendant into thinking he was confessing to a negligent homicide. State v. Goodwin, S-08-1159, 278 Neb. 945 "While the minority of an accused is a factor to consider in determining the voluntariness of a confession, it is not determinative. Because the age, education, and intelligence of an accused are included within the totality of circumstances (test) of whether there has been a knowing and voluntary waiver of Miranda rights prior to a custodial interrogation, a court necessarily exercises "special caution" with respect to juveniles. Accordingly, we decline to modify the totality of the circumstances test for determining the voluntariness of Miranda waivers by minors we conclude that no implied promise of leniency can reasonably be inferred from the questioning techniques utilized by the detectives. There was no suggestion of any definite benefit which Goodwin could expect to receive in exchange for his statement. The references to lack of intent and a "tragic accident" were made in the context of the detectives’ efforts to persuade Goodwin to truthfully explain his involvement in the shooting. "

Sunday, November 22, 2009

Nebraska Supreme Court upholds bench trial conviction for unintentional manslaughter Neb. Rev. Stat. § 28-305 (Reissue 2008) while also finding the Defendant guilty of intentional use of a weapon to commit a felony (section 28-1205 RRS Neb). State v. Tucker, S-08-623, 278 Neb. 935 . Defendant was charged with first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. Defendant waived a jury trial. The court found Defendant guilty of the lesser-included offense of manslaughter "by unintentionally causing the death of . . . victim while in the commission of an unlawful act. the court explained that the predicate felony to that offense was "assault and/or a terroristic threat. By acquitting Defendant of first and second degree murder, the trial court made the implicit finding that Defendant lacked the specific intent to kill and that he also lacked the specific intent to commit any of the listed felonies for felony murder. By finding Defendant guilty of unintentional manslaughter, the court found that Defendant did not intend to kill victim, but that he did kill victim during the intentional commission of an unlawful act. based on the predicate offense of intentional assault, the evidence was sufficient to support the trial court’s judgment that Defendant was guilty of use of a weapon to commit a felony
Nebraska Supreme Court allows testimony of police officer who was certified as a "drug recognition expert" (DRE) that defendant was too impaired from marijuana to drive over defendants Daubert objection. State v. Daly, S-08-192, 278 Neb. 903. "Although (research on the validity of DRE evaluations has) not always published in (peer-reviewed journals) per se, DRE research has been the subject of considerable scientific scrutiny..(the) use of the protocol and its various elements has certainly not been kept a secret nor is there evidence that its proponents have attempted to avoid the limelight..(the) risk of a false positive is low. Any risk is mitigated further by the fact that identifying the specific drug that caused a driver’s impairment is inessential—the DUI statute only requires proof that the defendant was under the influence of "any drug" and does not require the drug to be identified by the arresting officer (§ 60-6,196 )."

Saturday, November 14, 2009

Order of the Kneepads Update: Nebraska Supreme Court suspends for six months attorney who neglected child custody matter, failed to refund unearned fees, had been privately reprimanded in the past for neglecting cases, and failed to timely respond to the Counsel for Discipline inquiries. State ex rel. Counsel for Dis. v. Smith, S-08-1333, 278 Neb. 899 "Because Smith neither responded to the Counsel for Discipline regarding Johnson’s grievance nor filed a pleading, we have no basis for considering any factors that mitigate in Smith’s favor. Furthermore, this behavior indicates disrespect for our disciplinary jurisdiction and a lack of concern for the protection of the public, the profession, and the administration of justice. Considering that Smith has previously been privately reprimanded for similar neglect and that he has failed to communicate with the Counsel for Discipline in a timely or meaningful fashion, we conclude that a 6-month suspension from the practice of law is necessary to protect the public and maintain the reputation of the bar. We also order Smith to return any fees collected from Johnson."
Nebraska Supreme Court upholds Internet enticement law and rejects defendant's challenge to Section § 28-320.02 RRS Neb. on equal protection, free speech, over breadth and vagueness grounds. State v. Rung, S-08-878, 278 Neb. 855 "Defendant appeals his conviction for use of a computer to entice a child or a peace officer believed to be a child for sexual purposes, a violation of Neb. Rev. Stat. § 28-320.02 (Reissue 2008). Defendant challenges the constitutionality of § 28-320.02 and asserts that his sentence is excessive. We reject Defendant’s constitutional challenges, and we affirm his conviction and sentence. Defendant asserts no suspect classification and because the statute does not jeopardize a fundamental right, the classification in § 28-320.02 is subject to a rational basis review for equal protection purposes. When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.§ 28-320.02, is geared toward enticement of minors to engage in sexual conduct that would violate specified statutes, and as such, § 28-320.02 does not jeopardize the fundamental right recognized in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). Defendant argued that § 28-320.02 is over broad because it targets speech regarding acts that would not otherwise be illegal. This argument, similar to his other arguments, is based on his misreading of the statute. Defendant lacks standing to challenge § 28-320.02 for vagueness

Saturday, November 07, 2009

Case overruled: Nebraska Supreme Court allows Defendant facing retrial after a trial court ordered a deadlocked jury mistrial to file a plea in bar motion to contest whether double jeopardy would bar the retrial. Although the court should have had counsel and the defendant present while declaring the mistrial, the error was harmless. State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001) is overruled to the extent it suggests the plea in bar procedure is not available to challenge a mistrial. State v. Williams, S-08-1220, 278 Neb. 841 A mistrial entered without manifest necessity is the equivalent of an acquittal for purposes of double jeopardy analysis in that each terminates jeopardy without a finding of guilt. Abney v. United States, 431 U.S. 651, 660, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). a plea in bar pursuant to § 29-1817 may be filed to assert any nonfrivolous double jeopardy claim arising from a prior prosecution, including a claim that jeopardy was terminated by entry of a mistrial without manifest necessity. To the extent that language in State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001). is inconsistent with this holding, it is disapproved. We conclude that although the judge erred in not having the parties and counsel present during his colloquy with the jury regarding its inability to reach a verdict, the court did not abuse its discretion in ordering the mistrial. Accordingly, jeopardy did not terminate and retrial is not barred by principles of double jeopardy.
Used car dealers now must inspect even "as-is" cars for sale for "patent" safety defects. Wilke v. Woodhouse Ford, S-08-807, 278 Neb. 800 The Nebraska Supreme Court holds "patent" defects the responsibility of the dealer, such as steering and brakes, but in this case the defect was the loose play in the gearshift that allowed a child to take the parked car out of park. "Applying our risk-utility test for the existence of a legal duty to use reasonable care, we conclude that there is a relatively great magnitude of risk of injury in the circumstance where an unknowing buyer drives off the dealer’s lot in a used vehicle which has a patent safety defect, such as defective brakes or steering. " "a commercial dealer of used vehicles intended for use on public streets and highways has a duty to conduct a reasonable inspection of the vehicle prior to sale in order to determine whether there are any patent defects existing at the time of sale which would make the vehicle unsafe for ordinary operation and, upon discovery of such a defect, to either repair it or warn a prospective purchaser of its existence. The dealer has no duty to disassemble the vehicle to discover latent defects or to anticipate the future development of safety defects which do not exist at the time of sale. The tort duty we recognize today is not affected by a valid disclaimer or exclusion of U.C.C. warranties, because such contractual provisions do not absolve a seller from exercising reasonable care to prevent foreseeable harm."

Sunday, November 01, 2009

Laid off Pamida worker drops her WARN act suit. A woman who sued an Omaha-based regional retailer arguing she and others weren't properly notified before being laid off has dropped her legal fight. Cynthia Zych sued Pamida Stores Operating Co. in April. Her lawsuit alleged the company violated a federal law aimed at protecting workers during certain mass layoffs and plant closings. She said she was one of 54 people laid off in January. The law can be triggered in several ways, including when more than 50 employees are cut and they make up at least 33 percent of the employer's active workforce. Zych's attorney, Bob O'Connor Jr., said Friday he asked the court to dismiss the suit earlier this month because Pamida's layoffs didn't meet that requirement and therefore didn't violate the law.
Bankruptcy sale of former Husker lineman's trophies nets $28,500. Journal "A court-ordered auction of former Nebraska football player Aaron Taylor's championship hardware has brought in $28,500. It took about 30 minutes to sell Taylor's seven championship rings and his Outland Trophy on Saturday morning in Scottsbluff. Bids were taken in person and online. The trophy netted the highest bids, selling for $6,800. The rings sold for $2,000 to $5,900. The auction was forced by the failure of the Husker-themed Scarlet and Cream Letter Club restaurant Taylor started in Omaha with other former NU players and his resulting bankruptcy."
Nebraska Supreme Court allows award for loss of earning power to injured truck driver who had previously received Social Security Disability Income benefits but returned to work under the Social Security Administration "Ticket to Work" program. Manchester v. Drivers Mgmt., S-09-062, 278 Neb. 776 Because Plaintiff had an earning power to lose, her receipt of Social Security benefits based on an earlier determination of total disability did not prevent her from recovering workers’ compensation benefits. ..the existence of the Social Security rehabilitative programs indicates that an individual once assessed by the Social Security Administration to be totally disabled is not expected to be forever unable to work. See 42 U.S.C. § 422 (2006).. Plaintiff participated in the "Ticket to Work" program and was working her way off Social Security disability. Because Plaintiff was able to resume gainful employment and had worked for Drivers Management for 13 months before the accident, the Social Security Administration’s determination that at one point in time she was totally disabled does not logically prevent her from later recovering workers’ compensation benefits for her loss of earning capacity due to a disability incurred in the course of her employment