A-15-0230, State of Nebraska v. Bobby J. Moss (Appellant)
Douglas County, District Court Judge Marlon A. Polk
Attorney for Appellant: Brian S. Munnelly
Attorney for Appellee: Douglas J. Peterson, Kimberly A. Klein (Attorney General's Office)
Civil Action: Postconviction Relief
Action Taken by Trial Court: The trial court denied appellant's motion for postconviction relief following an evidentiary hearing.
Assignments of Error on Appeal: Did the trial court err in failing to find that his counsel was ineffective in failing to properly raise and preserve the constitutional challenge to ' 28-392? Did the trial court err in failing to find his trial counsel was ineffective in failing to file a motion for new trial based upon allegations of prosecutorial misconduct? Did the trial court err in failing to find that the prosecutor committed misconduct which deprived appellant of a fair trial?
Extended Case Summary (for Educational Purposes):
A-15-0230, State of Nebraska v. Bobby J. Moss (Appellant)
Douglas County, District Court Judge Marlon A. Polk
Attorney for Appellant: Brian S. Munnelly
Attorney for Appellee: Douglas J. Peterson, Kimberly A. Klein (Attorney General's Office)
Civil Action: Postconviction Relief
Following a trial, Moss was convicted of second degree murder, use of a deadly weapon to commit a felony, and manslaughter of an unborn child. The charges arose after Omaha Police Officers responded to a call near Carter Lake in Douglas County regarding a dead female body lying in the water. It was determined that the female was 7 ' months pregnant and that the fetus' death was caused by the female's death.
Following his conviction and sentence, Moss filed a motion for new trial alleging that the actions of the prosecuting attorney prevented him from having a fair trial and that the verdict was not sustained by sufficient evidence or was contrary to law. The trial court overruled the motion.
Moss filed an appeal in which he challenged the constitutionality of Neb. Rev. Stat. ' 28-392 (the fetal homicide statute), and alleged that the trial court erred in overruling his motion for new trial based on prosecutorial misconduct. The Court of Appeals held that Moss' constitutional challenge had not been properly raised and could not be considered on appeal. In regard to the motion for new trial, the Court of Appeals determined that the motion was untimely filed and did not consider the motion on appeal.
Moss subsequently filed a motion for postconviction relief arguing that his counsel provided ineffective assistance in failing to properly raise the constitutional challenge to ' 28-392, failing to file his motion for new trial in a timely manner, and failing to impeach and challenge a witness' statement and affidavit. Moss also argued that the prosecutor committed misconduct such that it deprived Moss of a fair trial.
An evidentiary hearing was held on Moss' postconviction motion and following the hearing, the court denied Moss' motion.
In the appeal before us now, Moss assigns that the trial court erred in failing to find that his counsel was ineffective in failing to properly raise and preserve the constitutional challenge to ' 28-392 and erred in failing to find his trial counsel was ineffective in failing to file a motion for new trial based upon allegations of prosecutorial misconduct. He also argues that the trial court erred in failing to find that the prosecutor committed misconduct which deprived appellant of a fair trial.