Nebraska Supreme Court denies murder defendant's claim for post-conviction relief alleging ineffective trial and appellate counsel where defendant claimed that counsel's failure to object to reports of Crimestoppers calls about the defendant was because of trial and appellate counsels' errors. State v. Duncan, S-08-1308, 278 Neb. 1006. any failure of Duncan’s trial counsel to object to Henthorn’s testimony was not prejudicial. The evidence supports Duncan’s convictions and renders the court’s erroneous admission of Henthorn’s testimony harmless.Duncan has not assigned that the postconviction court erred in failing to find that his appellate counsel provided ineffective assistance. When claims of a trial counsel’s performance are procedurally barred, we examine claims regarding trial counsel’s performance only if the defendant assigns as error that appellate counsel was ineffective for failing to raise trial counsel’s performance.

Nebraska Supreme Court affirms robbery conviction from Gage County; denies defendant's appeal to allow testimony of other inmates that another suspect committed the robberies; denies appeal on prosecutors closing arguments; denies appeal on other crimes evidence; denies appeal on evidence of prior convictions.State v. Epp, S-08-331, 278 Neb. 683Miller-Lerman-J."William A. Epp appeals his convictions and sentences for robbery and possession of a deadly weapon by a felon. Epp was found to be a habitual criminal and was sentenced to imprisonment for 60 to 60 years on each of the two convictions, with the sentences ordered to be served consecutively. We affirm Epp’s convictions and sentences."Whether or not the district court erred in refusing to admit the portions of Mick’s testimony at issue, the guilty verdict rendered against Epp was surely unattributable to such error. The court refused portions of Mick’s testimony in which he denied that he committed the Wymore Casey’s robbery and denied that he told Blessing and Forney that he committed a robbery. Such testimony did not support, and instead refuted, Epp’s defense that it was Mick and not Epp who committed the robbery. Epp presented other evidence raising the possibility that Mick rather than Epp robbed the Wymore Casey’s. The jury apparently rejected such evidence.

Nebraska Supreme Court affirms misdemeanor assault conviction and 100 day sentence when victim did not testify except through the county court's receiving into evidence her 911 recorded call. State v. Thompson, S-08-1134, 278 Neb. 320 District Court on appeal ruled tape was inadmissible hearsay but admitting the tape was harmless error. Defendant did not raise a confrontation objections. an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence in a case tried without a jury. State v. Harms, 264 Neb. 654, 650 N.W.2d 481 (2002) (supplemental opinion). The appellant must show that the trial court made a finding of guilt based exclusively on the erroneously admitted evidence. State v. Lara, 258 996, 607 W.2d 487 (2000). If there is other sufficient evidence to support the finding of guilt, the conviction will not be reversed. Id. The burden rests on the appellant in a bench trial because of the presumption that the trial court, sitting as the fact finder, disregards inadmissible evidence. State v. Harms, supra. We conclude there was other sufficient evidence to support the finding of guilt.

Nebraska Supreme Court announces simplified test to determine whether courts should consider parties business associations to be partnerships and holds that the standard would be a preponderance of the evidence whether in a dispute between business associates or between buseinss associates and outside parties. In re Dissolution & Winding Up of KeyTronics, S-06-690, 274 Neb. 936. The parties to the dispute worked together to market and operate automatic payment systems for automatic carwash stations. After the business failed one of the business associates sought an accounting and winding up of the operation claiming they had a partnership under Uniform P artnership A ct. S ection 67-410(1) RRS Neb. The district court denied the putative partners accounting complaint. Nebraska Supreme Court on denovo review of this equity action reverses, finding that the Plaintiff proved by a preponderance of the evidence that a partnership existed. Willson admits he is not pursuing an action for an accounting of a partnership that would be limited to the development of a key dispenser-revalue station. T hat product was never produced and did not independently garner any profits to account for. We are instead asked to determine whether K ing and Willson were partners in an enterprise that involved both the development of the key dispenser-revalue station and the sales and maintenance of the regular QuikPay line. If so, Wilson claims that K ing must account to Willson for any profits relating to all QuikPay business. The elements disputed by the parties are whether there was an “association” formed for QuikPay business, and whether such association, if created, was as “co-owners.” We have never explained, nor is there any reasoning to support, the confusing myriad of standards we have applied to what is, effectively, the same legal issue. T hus, we believe that the tenuous distinction between actions by alleged partners inter sese and actions by a third party against the alleged partnership should be abolished. By eliminating any common-law distinctions as to the burden of proof between actions alleging a partnership inter sese and actions by third parties, we bring greater predictability and consistency to partnership determinations. In our de novo review, we thus determine whether Willson established by a preponderance of the evidence that he and King were partners in a business that entailed both the development of the key dispenser-revalue station and regular QuikPay sales and maintenance We conclude that the objective, as well as subjective, indicia are sufficient to prove co-ownership of the business of selling,maintaining, and developing QuikPay. H aving already concluded that there was an association for the same, we conclude that Willson proved that he and K ing had formed a partnership for the business of selling, maintaining, and developing QuikPay.Because Willson has proved a partnership relationship with King, he is entitled to a winding up and an accounting in accordance with the A ct. T he district court erred in concluding otherwise. A ccordingly, we reverse the decision and remand the cause for further proceedings.

Nebraska Supreme Court reverses the Platte County District Court and allows the Department of Motor Vehicles to seek to enhance a driver's license suspension if the driver had a prior alcohol-related license suspension. Stenger v. Department of Motor Vehicles, S-06-1176, 274 Neb. 819 § 60-498.01 permits the hearing officer at the Administrative License Revocation hearing (ALR) the receive evidence for enhancement at a revocation hearing. A lthough 60-498.01 limits the issues under dispute, it does not prohibit evidence pertinent to the ultimate disposition of a case after those issues have been resolved. Whether a person’s driver’s license has previously been revoked is relevant evidence in determining the length of the revocation under § 60-498.02(1)(b). Therefore, § 60-498.01 allows receiving the driving abstract to enhance a revocation, and we hold that a driving abstract may be admitted in an A LR proceeding for that purpose. A party still may contest the accuracy of the abstract as to whether the party did in fact have a prior revocation. S ection 60-498.02(1)(b) explicitly provides that if a driving abstract shows that the driver had a revocation in the prior 12 years, the revocation can be enhanced to 1 year. T herefore, the Legislature clearly intended for the Department to consider such matter in the ALR proceedings

Juvenile courts may not consider the willingness of prospective parents to adopt the children of parents against whom the State seeks to terminate parental rights (Section 43-292.02). However the court's considering the adoptive parents' willingness to adopt and other testimony was harmless error and did not impair the terminated parent's due process. In re Interest of Destiny A. et al., S-06-1380, 274 Neb. 713

Nebraska Court of Appeals reverses guilty verdict for second degree assault and sexual assault for the Sheridan County District Court's erroneous admission of prior crimes evidence. However the appeals court does not decide whether the District Court's failure to give the "other crimes" limiting instruction when the court allowed the evidence, as State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999) requires. State v. Sutton , A-06-1297, 16 Neb. App. 185 Evidence of prior assault between defendant and victim was not admissible under 27-404(2) RRS Neb. The court admitted the evidence and the appeals court found the error harmful beyond a reasonable doubt. The district court failed to give a Sanchez limiting instruction, but since the admission of evidence was itself reversible error, the appeals court does not determine whether the court's failure to give Sanchez limiting instructions would be reversible error."The trial court failed to state such purpose at the time of the hearing required by rule 404(3)—which was an earlier opportunity for the trial court to “state the purpose or purposes” in order to comply with the procedures mandated in Sanchez. However we need not consider whether the trial court’s failure to abide by the Sanchez requirements constitutes reversible error in the instant case, given that we have concluded that the evidence was inadmissible. We simply point it out to remind trial courts of the requirements set forth in State v. Sanchez."

The Unicameral's boondoggle DNA testing statute's chickens come home to roost. The state convicted five defendants of robbing and murdering a 68 year old woman from Beatrice in 1985. Defendant White was convicted of murder and defendant Winslow plead to second degree murder.

• State v. White, S-06-919, 274 Neb. 419
• State v. Winslow, S-06-983, 274 Neb. 427

Three co-defendants testified against White. Nebraska Supreme Court orders DNA testing for both the defendant who went to trial (White) and the defendant who plead (Winslow). The Supreme Court orders testing because no matter how far fetched the claim, this evidence if available could produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced. See § 29-4120(5). Senator Chambers comments back in 2001 tell it all, the senators agreed that cost was no object.

Nebraska Supreme Court in two cases arising from the Amwest liquidation that started six years ago rules against landlord who sought satisfaction from defaulted tenants performance bond, but rules in favor of Florida general contractor who said it never received notice of the Amwest liquidation proceedings.

• State ex rel. Wagner v. Amwest Security Ins. Co., S-05-1267, 274 Neb. 110 (Strategic Capital Resources, Inc.)
• State ex rel. Wagner v. Amwest Security Ins. Co., S-06-049, 274 Neb. 121(Sunhouse International)

The Supreme Court affirms denying the claims of Strategic Capital Resources against its tenants performance bond to satisfy rental payments. Turns out the tenant-principal defaulted three days after the Insurance Department's notice that it would cancel the Amwest bond. "Each of the four lease bonds contained explicit conditions that must be complied with before A mwest’s liability under the agreements would arise. All four lease bonds required Strategic to provide A mwest written notice of (principal’s) default as a condition precedent to S trategic’s right to payment under the lease bonds. Amwest however did not receive notice of defaults until after cancellation. Strategic may not analogize these cases to cases arising form claims-based insurance policies as bond claims require strict compliance with preconditions for them. In the Sunhouse international case, the Supreme Court rules in favor of the claimant against a defaulted construction performance bond. The evidence showed that Amwest liquidators sent notice to the claimant's former attorneys offices. The claimant disputed that it received notice. Only later did Amwest liquidators produce an affidavit with out supporting documents stating the it did give proper notice. On denovo review Supreme Court discounts the affidavit. "we find the affidavit insufficient proof that, in accordance with § 44-4822, notice was sent to S unhouse’s last known address as reflected in A mwest’s records."

Some jurors used a slide rule and looked up the inflation rate to help them determine how much to award in wrongful death case.Nebraska Supreme Court affirms verdict of only $46k for wrongful death of a woman in her late teens. Poppe v. Siefker, S-05-670, 274 Neb. 1 Family members of woman killed in head-on collision on Interstate 80 with suicidal driver sued and the Lancaster County district court jury awarded them $46k. Plaintiffs appealed arguing the verdict was too low and the result of jurors' improper reliance on outside aids to help them calculate the present value of their award. Nebraska Supreme Court agrees that the plaintiffs failed to present clear and convincing evidence that some jurors' use of a financial slide rule and inflation rate on a post-it note presented a reasonable likelihood that the extraneous materials prejudiced the plaintiff. Although Nebraska jury instructions ask jurors to reduce their damage awards to present value, the instructions don't tell jurors how to do it. In this case, neither side offered evidence on how to do this either. The Nebraska Supreme Court affirms the verdict because although the slide rule and inflation rate were not in evidence, the court cant determine whether the jurors' use of the aids hurt or even helped the Plaintiffs. "Given that the jury was not provided any evidence on present value, nor instructed as to how present value was to be calculated, the personal financial slide calculator and the handwritten inflation rate could not have contradicted any of the evidence presented at trial. Nor could the jury have given undue weight to these items, while disregarding other evidence adduced at trial, because there simply was no evidence presented on this issue."

Did Pamir Safi's defense counsel get the idea to persuade Lancaster County District Court Judge Cheuvront to bar the prosecution and its witnesses from using the word "rape" from an earlier case he lost (before Cheuvront bailed out altogether)? Back in 1991 attorney Clarence Mock thought defendants should be able to draw conclusions for the jury deciding a drunk driving case. Attorney Mock represented defendant Thomas Wordekemper in Cuming County Court against a drunk driving charge. The defendant tested at .135, then well over the legal limit but contended that he was veering across the driving lane to avoid puddles of water. Attorney Mock allowed the defendant to testify and his money question was: "are you guilty of the accusations that have been made against you by this prosecutor?" Defendant: No. The state objected and the court sustained the states objections. Mock appealed arguing the defendant had a constitutional right to claim his innocence including his legal conclusion that he was "not guilty." The Nebraska Court of Appeals affirmed the conviction and rejected Mock's argument: "In answering his attorney's question, the defendant could be giving an opinion concerning the existence of any or all of the elements of the crime with which he was charged..However.. the defendant should have been asked questions which either required him to testify regarding the facts or to give a lay opinion based upon his perception."04/13/93 STATE NEBRASKA v. THOMAS H. WORDEKEMPER 3 NCA 256 (1993)

Nebraska Supreme Court affirms Worker Compensation award for asbestos induced mesothelioma that plaintiff's doctors diagnosed more than 20 years after his retirment from the employer but orders no disability payments to plaintiff's widow. No nod to Daubert in this opinion with shaky evidence for the plaintiff. Olivotto v. DeMarco Bros. Co., S-05-1526The plaintiff was a concrete and terrazzo installer for the defendant until his retirement in 1980Although he did not work with asbestos, former co workers testified that asbestos was around their work areas. He did not claim any occupational injury or disease. He died in 2004 from mesothelioma. His widow sought worker compensation benefits from the employer. The worker compensation court awarded disability and medical costs for the asbestos exposure. The review panel affirmed the award but reversed the disability benefits. Supreme Court affirms the award, but reverses the extra award for out of pocket expenses to the widow and agrees that the widow should not get any disability payments. Without mentioning Daubert or Nebraska cases following its rule, the Supreme Court restates its relaxed rule for admitting expert testimony on medical causation in worker compensation cases. Basically if the doctor can say anything to justify his conclusions, the court may let it in. In a workers’ compensation case, a witness must qualify as an expert and the testimony must assist the trier of fact to understand the evidence or determine a fact in issue. T he witness must have a factual basis for the opinion, and the testimony must be relevant. Veatch v. American Tool, 267 N eb. 711, 676 N .W.2d 730 (2004). A determination concerning the sufficiency of the foundation for an expert’s opinion is left to the discretion of the trial court. We conclude there was sufficient evidence to support the medical opinions of Drs. Connor and Deschamps, and the trial court did not abuse its discretion in admitting such evidence."

Eighth Circuit (Retired Justice O’Connor) upholds probation revocation based on defendant’s positive “sweat patch” tests for narcotics use. Decision of the Day Blog. Drug Testing: Eighth Concludes That Sweat Patches Are Generally Reliable U.S. v. Meyer, 06-2961 (8th Cir. Apr. 25, 2007) The Eighth sides with the government, joining the Tenth Circuit in concluding that the patches are generally reliable. See United States v. Gatewood, 370 F.3d 1055, 1060-62 (10th Cir. 2004), vacated on other grounds, 543 U.S. 1109 (2005). However the court explains that district courts need to scrutinize this evidence on a case-by-case basis. The defendant had eight negatives before receiving a bad test. His explanation was that his job duties changed from hauling away nice cars to moving the beaters, and we all know beater drivers are dopers. Wait I thought coke users rode around in nice rigs, at least in the TV shows. Justice Sandra Day O’Connor authors the opinion.

Eighth Circuit overrules evidence spoliation claim against plaintiff who after an accident on Interstate 80 removed monitoring device from its bus. Greyhound Lines v. Robert Wade U.S. Court of Appeals Case No: 061875P.pdf 04/24/2007 District of Nebraska - Omaha Greyhound sued Archway Cookies for a rear end collision between Greyhound’s disabled bus and the following Archway Cookie truck. The district court apportioned fault 85% to the following Archway vehicle and 15% to Greyhound. Eighth Circuit affirms, denies defendant’s spoliation claim and refuses to overturn district court’s finding allocating fault between the parties. The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation. Richter v.City of Omaha, __ N.W.2d __, 2007WL865842 at *4 (Neb. March 23, 2007) (unfavorable inference where "spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth" Morris v. Union Pac. R.R., 373 F.3d 896, 902 (8th Cir.2004).. Thus, the district court did not err in finding spoliation had not occurred. Additionally, although some material was not preserved, the ECM data identified the specific mechanical defect that slowed the bus, and several bus passengers testified how the bus acted before the collision. See Stevenson, 354 F.3d at 748 ("There must be a finding of prejudice to the opposing party before imposing a sanction for destruction of evidence"). Defendant loses his challenge to the District Court’s fault allocation the fact finder assesses and apportions negligence among the parties, and its apportionment will be reversed only upon a showing of clear error. Baldwin v. City of Omaha, 607 N.W.2d 841, 853 (Neb. 2000) ("apportionment is solely a matter for the fact finder") The district court's assessment of fault was not a clear error

Nebraska Supreme Court says cigarettes can be salary for undercover agents, but in this case the informant was just giving information. State Patrol investigator gave a cooperating witness $20 for cigarettes after she gave information Harold Kuenning's murder. The Defendant in a murder case argued this was improper because the witness was in prison or on probation, parole. Nebraska Supreme Court holds that merely giving information to the Police does not make a witness an undercover agent. See 29-2262.01 State v. McKinney, S-05-591, 273 Neb. 346. The prosecution must also comply with the fourth amendment when collecting DNA samples from suspects even while they are incarcerated. under§29-3304,lawenforcementpersonnel must have probable cause to believe that the person whose Dnais sought—whether he or she has been arrested or may otherwise be subject to Dna testing—committed the crime for which the Dna is sought.

Nebraska Supreme Court signals it will protect attorney client communications more than work product in discovery proceedings. State ex rel. Stivrins v. Flowers, S-06-1044, 273 Neb. 336 Plaintiff sued Lincoln physician Timothy Stivrins for failure to diagnose lung cancer. Plaintiff's counsel notices the doctor's partner physician for a deposition and prior to the deposition the partner physician sought legal advice from the same lawyer who represented the defendant. Plaintiff counsel questioned the witness about attorney client communications he had with the defendant's counsel. The district court upheld the plaintiff's motion to compel. Defendant filed this mandamus action in the Supreme Court against the district court and affirms the writ. While the Supreme Court in its Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997) decision applied a balancing test for work product claims after a party established a prima facie case for protection, the court here appears to shut off any discovery of attorney client communications as long as the party makes a prima facie case for the privilege. Although the court in Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006) denied an interlocutory appeal from an adverse ruling against a party's privilege claim, the supreme court distinguishes the result against the privilege in that case because the party seeking protection did not file their claim as a mandamus action. "Once pace established the attorney-client relationship, the plaintiff had the burden to establish that the inquiry related to or was an exception to this rule or that the communications wereoutside the scope of the privilege and further an appeal after the disclosure of the privileged communications at issue would be an inadequate remedy in this case."

Nebraska Supreme Court refuses to require wholesale disruption of criminal prosecutions although the some courts have suggested that the cases Crawford v Washington and Davis v Washington required the in court testimony of technical witnesses to give the necessary foundation testimony for breath tests and speed detecting radar guns. State v. Jacobson, S-06-195, 273 Neb. 289, and State v. Fischer, 272 Neb. 963 (2007) In two traffic related appeals this year the Nebraska Supreme Court overruled defendants' objections that the technicians who certified the intoxication and speed detection devices should have appeared to testify that the devices were working properly. Fisher lost when the Supreme Court ruled that the technician's certification of the intoxication devices were not testimonial because the certifications were routine administrative tasks and too attenuated from the prosecution of the charges against Fischer for the statements to be ‘testimonial’ in the sense required under Crawford (Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), Davis (Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)), The Defendant Jacobsen lost when the Supreme Court agreed with the District Court that the technicians report authenticating the tuning forks and workings of the radar gun were also not testimonial. Fischer is analogous to the Jacobsen's case. Applying the reasoning of statements in the document certifying the accuracy of the tuning forks were nontestimonial. The “Certificate of Calibration and Accuracy” was prepared in the course of the State patrol technician’s routine duties to ensure that the tuning forks used to calibrate and test the radar unit oscillated at the proper speeds. Certification was required annually, whether or not the certification document would eventually be used in a criminal prosecution. The statements contained in the certification document did not pertain to any particular defendant. They were made over 6 months before Jacobson was cited for speeding. Thus, the statements “were too attenuated from the prosecution of the [speedingcharge] against [Jacobson] for the statements to be ‘testimonial.’” Fischer, 272 Neb. at 972, 726 N.W.2d at 183

Nebraska Supreme Court nixes requirement that medical experts invoke "magic words" when stating their opinions, affirms child abuse case from Madison county. Blog 702. From Daubert on the Web: do physician experts really "balk" at stating their opinions under oath as "with a reasonable degree of medical certainty?" Perhaps they shouldnt since most experts are used to testifying. Supreme Court affirms child abuse conviction against day care provider when an 18 month old child in her care suffers severe head injury, and according to the physician from shaken baby syndrome. "some experts have been known to balk, despite a high level of confidence in their opinions, because to their understanding, "certainty" connotes indubitability and does not come in "degrees." See State v. Kuehn, No. S-05-888 (Neb. Mar. 16, 2007).

Omaha attorney loses his appeal from a one year license revocation for refusing an alcohol test even though the Douglas county court eventually acquitted him of refusing to take a breath test. Betterman v. Department of Motor Vehicles, S-05-638, S-06-823 , 273 Neb. 178 . the appellant is pro se and an attorney who brings many issues up on this license appeal, all of which he loses. Still someone liked him because he was acquitted of the same charges in county court; only the administrative revocation stuck. Appellant wanted to challenge on appeal the partiality of the administrative hearing officer who would be an employee of the DMV. Attorney failed to challenge this at the hearing but sought to offer judicial notice of the hearing officer's status at the District Court. Supreme Court agrees that even with notice of adjudicative facts, the appellant may not supplement the record at District court if he did not offer it at the administrative hearing. Further the appellants acquittal, even if this would be newly discovered evidence against his revocation does not affect the administrative license revocation for refusing to test. "Assuming that the court could take judicial notice of the hearing officer's employment as an adjudicative fact, (the supreme court) would not take judicial notice of it. See Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997): in a contested case under the APA, a court may not take judicial notice of an adjudicative fact that was not presented to the agency, because the taking of such evidence would impermissibly expand the court’s statutory scope of review de novo on the record of the agency. The APA does not authorize a district court reviewing the decision of an administrative agency to receive additional evidence, whether by judicial notice or other mean. To the extent Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423, 437, 571 N.W.2d 53, 62 (1997). See, also, Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995) suggested otherwise, the court disapproves of them. In the present case, even if evidence of Betterman’s acquittal in the criminal case were to be admitted in a new ALR hearing, its admission would not affect the outcome. Therefore, the district court did not err in refusing to reverse the director’s order.

Eighth Circuit Court of Appeals affirms conviction from the District of Nebraska against Defendant for illegally entering the USA after deportation. ICE Department records were not "testimonial" business records, and therefore admissible even under Crawford v Washington; Judge Camp also cured her "prejudicial" comments about coming from Canada. USA v. Urqhart U.S. Court of Appeals Case No. 06-1242 District of Nebraska 061242P.pdf 11/22/06 . State Patrol officers arrested the defendant, a Canadian citizen whom immigration officials had earlier deported on Interstate 80 near Sidney. What do illegal immigrants from Canada like so much about Sidney? Federal prosecutors offered a "Certificate of Nonexistence of a Record" from the defendant's alien-file. Defendant objected that offering this records evidence violated his 6th Amendment rights to confront witnesses, per Crawford v. Washington, 541 U.S. 36 (2004). Eighth Circuit affirms conviction for violating 8 U.S.C. § 1326(a). The "nonexistence certificate" is nontestimonial evidence and its admission in prosecution for illegal reentry after deportation did not violate defendant's confrontation clause rights; further trial judge's statement that defendant was "from Canada" did not require a mistrial in light of the court's curative instruction.