Nebraska Supreme Court, Miller-Lerman, Justice affirms Lancaster County District Court conviction of felony murder and use of a firearm to commit a felony from the shooting death in an armed robbery of a marijuana dealer. State v. Banks, S-07-670, 278 Neb. 342. Defendant broke into the victims home to rob him of cash and a marijuana stash. Defendant shot the victim twice in the chest as he was getting away in his friends car. Nebraska Supreme Court affirms District Court's refusal to allow an alternative premediated first degree murder instruction along with the court's felony murder instruction. The district court's refusal to allow the jury to consider lesser included homicide offenses and acquittal on robbery the Supreme Court also affirms. Defendant also loses his appeal on jury selection, venue, witnesses cross examination and the state's late amendment of the weapons charge from a Class III felony to a firearms Class II felony. We conclude that Banks has not established reversible error from the court’s refusal to instruct on premeditated murder and the lesser-included offenses of second degree murder and manslaughter. In this case, Banks was convicted of first degree murder based on sufficient evidence. Banks has shown no prejudice from the refusal to instruct on premeditated murder, because such instruction would have simply given the jury an additional theory under which to convict Banks of first degree murder. Banks also has not shown that he was prejudiced by the failure to instruct on premeditated murder with its corresponding lesser-included offenses, because the evidence did not produce a rational basis to acquit him of first degree murder under a felony murder theory but convict him of second degree murder or manslaughter. The district court therefore did not violate Banks’ right to due process and did not otherwise prejudicially err when it refused to give the instructions requested by Banks

Nebraska Supreme Court hands down 120 day suspension against Douglas County Court Judge Marcuzzo for steering his nephew's domestic disturbance case away from "stern" Judge White to a judge who gave the nephew probation and also for leaving profane phone messages with prosecutors who were handling cases in his court. In re Complaint Against Marcuzzo, S-35-080001, 278 Neb. 331. Special Master had recommended a 3 month suspension.

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.

Plaintiffs who sued the City of Omaha for injuries children suffered in sledding accident at Memorial Park won partial summary judgment on liability under the Political Subdivision Tort Claim Act. City sought to appeal the liability finding and obtained certification from the trial court that it was a final order. Nebraska Supreme Court dismisses appeal because a partial summary judgment can never be a final order, even if a party tries to certify it under 251315 Connelly v. City of Omaha, S-08-1011, 278 Neb. 31 "no final order was entered (or determination made) regarding damages as required by § 25-1902, and accordingly, the court could not have directed the entry of a final judgment within the meaning of § 25-1315(1). Because the judgment does not dispose of the entirety of any one claim, it cannot be made an appealable judgment by recourse to § 25-1315.21."

Defendant convicted of sex crime who was not in custody, probation or parole could not challenge requirement he register as a sex offender through post-conviction proceedings. State v. York, S-08-884, 278 Neb. 306 Defendant claims that this requirement renders him "in custody under sentence" such that he should be permitted to seek relief under the Nebraska Postconviction Act. See § 29-3001. We conclude that an individual who is subject to the registration requirements under the SORA (Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2008)) is not "in custody under sentence" for purposes of the Nebraska Postconviction Act. See § 29-3001.

Nebraska Supreme court reverses summary judgment in rescuers action against motorist who slid off Interstate 80. Motorist who slid off road could be negligent and injured motorist who suffered amputate foot in accident that occurred while he was trying to help defendant could be a rescuer. Rasmussen v. State Farm Mut. Auto. Ins. Co., S-08-747, 278 Neb. 289 "We conclude that the district court should have applied the rescue doctrine to the facts of this case. Here, we find no reason to make a distinction between the negligence of the person being rescued which is a proximate cause of injury to the rescuer and the negligence of a third party which placed the person to be rescued in peril and caused injury to another who attempted the rescue."

"The case is over and done." Nebraska Supreme Court overrules most recent iteration of family dispute over assets of local Omaha business and refuses to reinstate lawsuit against company that some relatives brought. Ferer v. Aaron Ferer & Sons, S-08-534, 278 Neb. 282 "Appellants also claim the district court erred in denying their motion for an order nunc pro tunc reinstating their ...cause of action for involuntary liquidation.The (trial court in its order) expressly stated that it intended to dismiss the sixth cause of action and that the dismissal was "no mistake." We find that the court has been extremely patient in dealing with appellants’ repeated attempts to retry issues that have previously been decided. The court did not abuse its discretion in denying appellants’ motion for an order nunc pro tunc. we conclude that the district court did not abuse its discretion in refusing to allow appellants to resurrect causes of action that have merely been repackaged and rewrapped. The (plaintiffs' case of Aaron versus defendants) is over and done.

Nebraska Supreme Court overrules claim of ineffectiveness of trial counsel for allegedly not pointing out errors to pro se defendant previous trial counsel had committed. Further no ineffectiveness of appellate counsel for raising trial counsel ineffectiveness on appeal because appellate counsel if different from trial counsel must raise it on direct appeal if issues are apparent on record. State v. Dunster, S-08-227, 278 Neb. 268 Dunster argues that direct appeal counsel was ineffective in raising, on direct appeal, the issue of ineffective assistance of trial counsel. But direct appeal counsel’s performance was not deficient in that regard.

Lincoln chiropractor who had earlier career as a mortician loses another attempt to reduce alimony award. Metcalf v. Metcalf, S-07-1346, 278 Neb. 258 Nebraska Supreme Court modifies rule on changed circumstances when to allow modification of a divorce decree. "a judgment for alimony may be modified only upon a showing of facts or circumstances that have changed since the last order granting or denying modification was entered. But once some change has been established since the last request, the analysis focuses on the change in circumstances since alimony was originally awarded or last modified. We adopt this rule because it recognizes the force of res judicata; modification will be considered only when there has been a change in circumstances since the last request for modification. But if there has been no change, modification is not justified, because the request is essentially the same as the last request."

Thank you Senator Nelson for voting FOR Sonia Sotomayor to the Supremes: Thank you Senator Nelson for voting for Judge Sotomayor to the Supreme Court. You showed great courage in resisting the hypocritical call of Republicans to disqualify any minority candidate who failed to meet the strict tests we must apply to white politicians when those white public figures try to discuss race. Puerto Ricans have been historically disadvantaged since we occupy their territory give their residents social security and subsidize their industries. Judge Sotomayor early on showed herself to be a fine example of the wise Latina woman in her Yale Law Journal Note that advocated massive reparations from the United States to Puerto Rico when it entered the Union.

Thanks Licensing Board: From Dan Ullman, President of Nebraska Psychological Association his letter to the editor in the Journalstar on August 5, 2009:

The Nebraska Psychological Association expresses its appreciation on the part of the licensing boards for psychology and mental health practice in resisting an attempt to discriminate against vulnerable clients in providing mental health services or referrals for services. The focus of this attempt to prevent clinical services includes sexual orientation, religion, gender identity or other reasons based on any provider's claim of a "moral and religious conviction."

Most disturbing is the continuing attempt by the Department of Health and Human Services to coerce licensing boards to establish this discrimination regulation by placing on hold for 18 months needed changes approved by the boards ("Agency urges compromise," July 19, LJS).

Newspaper articles have emphasized Health and Human Services' attempt to discriminate against services to homosexuals. Not mentioned is the proposed discrimination policy against other clients on the basis of a provider's claim of a "moral or religious conviction."

The Nebraska Psychological Association's Code of Ethics protects the rights, welfare and safety of all clients, not just those who belong to any particular personal orientation. The code mandate is "Do No Harm;" it is not to protect the prejudices of providers.

Under the current Code of Ethics, if a mental health provider is unable to provide services, the provider must refer services in the terms of behavioral health needs of clients, not the needs or prejudices of a provider.

Dan Ullman, president, Nebraska Psychological Association

I couldnt agree more but I dont think Dr Ullman goes far enough so I sent the NPA my suggestions to elminate all homophobia from the psychological profession: How commendable of Dr Ullman for putting homosexual patients ahead of the "conscience" of those psychological professionals who would refuse to treat them. As you know "conscience" for these fanatic religious practitioners really means their freedom to be fearful, ignorant and hateful. However I am afraid that merely removing "conscience" rules from professional licensing standards does not go far enough to ensure the highest professional standards in your field. No, you have to also eliminate the hate from the profession. After all how to do ensure that some psychologists who harbor bigoted thoughts about homosexuality would not take on homosexuals' cases with the intention of harming them, or horrors trying to convert them to heterosexuality? I urge the Nebraska Psychological Association if you have not already, to recommend the following rules: 1. licensed psychologists must sign affidavits when applying for a license or renewing one that they fully embrace homosexuality as a healthy and in some respects a superior lifestyle to traditional marriage. They should encourage youngsters to discover their sexuality as early as possible. 2. psychologists must register which churches they attend and allow licensing boards to review the teachings of those churches to identify any latent or obvious homophobic messages. 3. In cases when homosexuals allege , they could discover from the professionals computers, diaries, notes and writings anything that questions homosexuality. 4. Psychologists who might harbor bigoted and outdated views on homosexuality or traditional marriage would have to undergo graduated probationary educational programs to purge themselves of these views. In case when the professional refuses to distance himself from actual homophobic views or churches that preach this hate, they should face discipline. Again thank you for your efforts to eliminate hate from our society. After all we can learn a lot from brave leaders like Hitler and Mao. They knew you had to go after the educated professions first before enslaving the masses

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.

Nebraska Supreme Court rules for property owners who lost condemnation action against Douglas County finding their failure to serve notice on the County and to file affidavits of notice in the same manner that a plaintiff would serve a defendant with a new lawsuit were directory and not jurisdictional. Wooden v. County of Douglas, S-06-1163, 275 Neb. 971 "we conclude the district court did not lack jurisdiction as a result of the Woodens’ failure to timely file an affidavit of proof of service.when §§ 76-715, 76-715.01, and 76-717 are considered in light of each other, it is clear that the act which confers jurisdiction on the district court, and which is therefore mandatory, is the filing of the notice of appeal and, by extension, service of this notice. Moreover, we note that two distinct acts occurring days apart cannot both be jurisdictional. And because the act which is mandatory and jurisdictional is the filing of the notice of appeal, we conclude that the Woodens’ failure to timely file an affidavit of proof of service could not and did not divest the district court of jurisdiction. Instead, the timely filing of such an affidavit is directory. We find persuasive the reasoning of the Neumeyer court, which held that the filing of an appeal bond was directory rather than mandatory and that “to hold [that such was mandatory] would convert clear, brief language into a jurisdictional maze.”12 The Court of Appeals erred in concluding that the district court lacked jurisdiction due to the Woodens’ failure to file a timely affidavit of proof of service.the petition on appeal filed by the Woodens was not the commencement of a new action, but simply a continuation of the condemnation action filed by the County. The continuation of this action, and of the petition on appeal itself required by § 76-717, is therefore governed by the statutory scheme relating to condemnation actions.

Legal malpractice lawsuit against estate of deceased patent attorney returns to the Nebraska Supreme Court after the Court had rejected the estate's District Court ruling that the plaintiff would not have won a patent infringement suit if the attorney had timely renewed its patent for a tilling device. The Douglas County District Court on remand again ruled for the attorney's estate, this time finding the plaintiff could not win a patent infringement suit because its limited patent claims would estop a patent suit. Nebraska Supreme Court this time affirms summary judgment finding that the US Supreme Court's Festo decision applied and the plaintiff's hypothetical patent lawsuit would not win because the plaintiff would not be able to overcome a patent defendant's prosecution estoppel defense. New Tek Mfg. v. Beehner, S-06-783, 275 Neb. 951 "In this case, the single two-way hydraulic cylinder claim originally asserted as claim 3 was canceled, but the two-cylinder lever-pivoting means originally asserted as claim 4 was retained in the amended application. The drawings incorporated in the ’365 patent and the ’080 patent reflect only the two-cylinder means. Element 4, claim 22, of the ’080 patent, as construed by the district court in its Markman order, describes only a device utilizing two hydraulic cylinders as lever-pivoting means. We conclude that the rejected claim 3 of the original application was replaced by a narrowing claim which may trigger prosecution history estoppel as a legal limitation on the doctrine of equivalents. We conclude as a matter of law that none of the rebuttal criteria identified in Festo II and explained further in Festo III are met in this case. The first criterion is not met because it cannot be said that the claimed equivalent was unforeseeable at the time of the narrowing amendment. The claimed means consisting of a single two-way hydraulic cylinder was canceled in response to a prior art objection. As we noted in New Tek I, there is no evidence that the alleged equivalent is “after-arising technology.”56 The second criterion is not met because the amendment to claim 3 was made to avoid prior art that contained the equivalent in question, and thus it is not tangential, but is central to the allowance of the claim.57 The third criterion is not met because the =claim for the single two-way hydraulic cylinder was rejected on the basis of prior art; there can be no other reason that Schmidt could not have described the accused equivalent

Mr Davis' attorney has advice for those trophy wives worried about the longevity of their meal tickets: get the insurance policy before your divorce is final. Omaha.com Mary Kay Davis, the former wife, sought the policy as security for more than $1.5 million in alimony and child-support obligations should her ex-husband die prematurely. She lost her case in the Nebraska Supreme Court on June 20, 2008 Davis v. Davis, S-07-529, 275 Neb. 944 " Henry Davis, chief executive of Greater Omaha Packing Co., refused to get a physical examination to allow her to purchase the insurance policy. When the couple divorced after three years of litigation in 2006, Henry Davis was ordered to pay $5,000 a month in child support on behalf of two children and $12,500 per month alimony for 106 months, unless either party died or Mary Kay Davis remarried. The alimony would equal $1.325 million over nearly nine years. Mary Kay Davis returned to court seeking the life insurance policy as security for the divorce decree. Henry Davis had already purchased a $1 million life insurance policy on behalf of a trust that would provide for the children should he die before they reach 19, the age of majority, according to court records. John Slowiaczek of Omaha, the attorney for Henry Davis, said the ruling will not prevent courts from requiring divorcing couples to obtain life insurance as part of their divorce settlements. However, once the divorce is final, former spouses can't get life insurance policies on each other without consent. "Once it's over, I don't have any more right to insure your life than you have to insure mine," Slowiaczek said. The Supreme Court held that although an ex-wife might have an insurable interest in the ex-husband, she still could not force the husband to become her insured life for her own policy. "an insurable interest does not give her the right to own a policy on Henry’s life without his consent. Section 44-704 specifically requires adult insureds to consent to insurance policies on their lives unless they or their spouses are the owners of the policies. Mary Kay is not Henry’s spouse, and Henry would not be the owner of the policy."