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Supreme Court Call - Case Summaries

Tuesday, October 4, 2016

S-15-0909) In re Interest of L.S.

S-15-0910) In re Interest of L.S.

Separate Juvenile Court for Douglas County, Judge Elizabeth G. Crnkovich

Attorneys: Regina T. Makaitis (Appellant – Patricia B.) --- Karen C. Hicks (Hicks Law, P.C., LLO) (Appellee on Cross-Appeal– Calvin S.) --- Jennifer C. Clark (County Attorney’s Office)

Civil: Guardianship

Proceedings below: The trial court changed the permanency goal from reunification to guardianship.

Issues: 1) The trial court lacked the authority to enter a permanency goal of guardianship in a case where the juvenile was adjudicated under § 43-247(3)(c), 2) the trial court violated Appellant’s constitutional right to due process, and 3) the trial court erred by denying Appellant’s motion for a continuance and an evidentiary hearing.

Issues on Cross Appeal: The trial court 1) lacked authority to enter a permanency goal of guardianship where the juvenile was adjudicated under § 43-247(3)(c), and 2) violated Appellee’s constitutional right to due process.

 

     

 

S-15-0881 State v. Larry G. Martinez (Appellant)

Cheyenne County District Court, Judge Derek C. Weimer

Attorneys: Erin E. Tangeman (Attorney General’s Office) --- Sarah P. Newell (Nebraska Commission on Public Advocacy) (Appellant)

Criminal: Motion to suppress; 1st degree murder; using firearm to commit a felony

Proceedings below: Appellant was convicted following a jury trial and sentenced to life imprisonment consecutive to 10-50 years.

Issues: 1) The district court erred in overruling Appellant's motion to suppress his statements under Neb. Rev. Stat. § 20-152, 2) the district court’s interpretation of Neb. Rev. Stat. §§ 20-151 et. seq. Violates Art. II § 1 of the Nebraska Constitution, the Separation of Powers Clause, 3) the trial court erred by considering lay opinion testimony when interpreting Neb. Rev. Stat.  20-151 et. seq., 4) the trial court erred in finding Appellant competent to stand trial; doing so violates his substantive due process rights under the 5th and 14th Amendments of the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, 5) the trial court erred in admitting lay opinion testimony when considering Appellant's competency, 6) the trial court erred when instructing the jury on the definition of deliberation; doing so violated his right to a due process under the 5th and 14th Amendments to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution, and 7) the trial court violated Appellant's due process under the 5th and 14th Amendment to the United States Constitution and Article I, §§ 3 and 11 of the Nebraska Constitution by not instructing the jury that the State must disprove Appellant acted on a sudden quarrel.

 

S-16-0241 In re Interest of Nettie F.

Separate Juvenile Court for Douglas County, Judge Patricia A. Lamberty

Attorneys: Karen S. Nelson (Carlson & Burnett, LLP (Appellants) --- Ryan M. Hoffman & Mark F. Jacobs (Anderson, Bressman & Hoffman, P.C., L.L.O.) (GAL)

Civil: Placement

Proceedings below: The trial court denied joint placement under the Nebraska Fostering Connections Act

Issues: l) The October 15, 2015, November 17, 2015, January 14, 2016, decisions from the Separate Juvenile Court for Douglas County, Nebraska were not final, appealable decisions until after the February 11, 2016 decision from the trial court, under In re Interest of R.G., 238 Neb. 405,470 N.W.2d 780 (1991), 2) the trial court erred in vacating Appellant's status as an intervener under the Fostering Connections Act pursuant to Neb. Rev. Stat. 543-1311.01, 3) the trial court erred in not allowing the Appellants to make an offer of proof at the February 11, 2016, evidentiary hearing, 4) the trial court erred in quashing the subpoenas issued by the Appellants, and 5) the trial court violated Appellant’s due process rights by not allowing her to have a fair hearing as contemplated by the November 17, 2015, Order or the Nebraska Fostering Connections Act, by not allowing her to confront and cross-examine witnesses, by not allowing her to subpoena witnesses; consequently a fair hearing did not occur in which sufficient evidence was elicited prove that joint-sibling placement was contrary to the law and the safety or well-being of either child.

S-16-0077 State v. Arizola (Appellant)

Lancaster County District Court, Judge Susan I. Strong

Attorneys: Austin N. Relph (Attorney General’s Office) --- Nathan Sohriakoff (Public Defender’s Office)(Appellant)

Criminal: Refusal of a chemical test, two prior convictions; motion to suppress; plea in bar; motion to quash

Proceedings below: The district court overruled Appellant’s motion to suppress.  Following a bench trial, Appellant was found guilty of refusal of a chemical test.  The district court overruled Appellant’s motion to quash and plea in bar. 

Issues: The Lancaster County District Court erred by 1) overruling Appellant's Motion to Suppress the traffic stop, 2) overruling Appellant's Plea in Bar, 3) overruling Appellant's Motion to Quash, 4) failing to find that Neb. Rev. Stat. § 60-6, 1 97.09 was unconstitutional, and 5) failing to grant Appellant appropriate due process under Neb. Rev. Stat. § 60-6,197.09.

S-16-0065 State v. Rohde (Appellant)

Lancaster County District Court, Judge Steven D. Burns

Attorneys: Austin N. Relph (Attorney General’s Office) --- Nathan Sohriakoff (Public Defender’s Office) (Appellant)

Criminal: Refusal of a chemical test, three prior convictions; enhancement; plea in bar; motion to quash

Proceedings below: Appellant pled no contest to refusal of a chemical test.  The district court overruled Appellant’s motion to quash and plea in bar. 

Issues: The district court erred by 1) overruling Appellant's Plea in Bar, and 2) overruling Appellant's Motion to Quash.

S-15-0788 State v. Todd A. Wagner (Appellant)

Lancaster County District Court, Judge Stephanie Stacy

Attorneys: Austin N. Relph (Attorney General’s Office) --- Mark E. Rappl (Appellant)

Criminal: Refusal of chemical test, fourth offense; motion to quash; plea in bar

Proceedings below: Appellant was convicted based on a plea of no contest.

Issues: The district court erred in 1) overruling Appellant’s motion to quash, and 2) overruling Appellant’s plea in bar.

 

 

Wednesday, October 5, 2016

S-15-1222 State v. Peter Draper (Appellant)

Franklin County District Court, Judge Stephen R. Illingworth

Attorneys: Stacy M. Foust (Attorney General’s Office) --- Charles D. Brewster (Anderson, Klein, Brewster & Brandt) (Appellant)

Criminal: Child abuse resulting in death; child abuse resulting in serious bodily injury

Proceedings below: Appellant was convicted following a jury trial and sentenced to consecutive sentences of 60 years to life imprisonment and 49-50 years.

Issues: The district court erred by 1) finding sufficient evidence to convict Appellant of child abuse resulting in death beyond a reasonable doubt, 2) finding sufficient evidence to convict Appellant of child abuse resulting in serious bodily injury beyond a reasonable doubt, 3) by overruling Appellant's objection on the basis of speculation and foundation about lay testimony concerning the cause of an injury to the victim's ear, 4) by allowing improper 404 evidence to be adduced concerning the Appellant' s character, 5) by allowing testimony concerning the emotional reaction of witnesses without proper foundation, and over Appellant's relevancy objection, and 6) by giving the Appellant an excessive sentence.

S-15-0932 State v. David L. Rice (Appellant)

Douglas County District Court, Judge James T. Gleason

Attorneys: Katie L. Benson (County Attorney’s Office) --- Timothy L. Ashford (Appellant)

Civil: Reimbursement of costs and fees

Proceedings below: Appellant’s counsel, Timothy Ashford, was appointed to represent him in his post-conviction action.  The district court denied payment of attorney’s fees.  Appellee waived its right to file a brief.

Issues: The district court erred in 1) denying the request by Attorney Timothy Ashford for payment of fees in the Amended Application of Appointed Counsel for Reimbursement of Costs and Fees in the Nebraska Supreme Court because an application for attorney fees and expenses pursuant to Neb. Rev. St. § 29-3905 states the court, upon hearing the application, shall fix reasonable expenses and fees, 2) denying the request for payment of fees in the Amended Application of Appointed Counsel for Reimbursement of Costs and Fees in the Nebraska Supreme Court because an application for attorney fees and expenses must be granted where the record demonstrates that the amount requested was reasonable and there is no evidence or indication otherwise that the amount is unreasonable, 3) denying the request for payment of fees because the law clearly states statute governing compensation for court-appointed attorneys in criminal cases requires that those attorneys be paid reasonable fees and reasonably necessary expenses for services performed pursuant to their appointment, and 4) denying the request for payment of fees because it is inappropriate for a trial court in a criminal case to make dispositive rulings on appointed counsel's fee applications given trial court's participation in hearing.

S-15-0975 In re Interest of Nizigiyimana R.

Hall County Court Sitting as a Juvenile Court, Judge Phillip M. Martin, Jr.

Attorneys: Bruce E. Stephens (Appellants) --- Stacie A. Goding (Myers & Goding, P.C., L.L.O.) (GAL) --- Megan Alexander (County Attorney’s Office)

Civil: Intervention

Proceedings below: The trial court denied Appellants’ motion for leave to intervene.

Issues: The trial court erred in 1) denying Appellants’ motion for leave to intervene, and 2) no allowing certain evidence proposed by Appellants.

 

S-16-0024 Mental Health Board of the Fourth Judicial District (Appellant) v. L.T.

Douglas County District Court, Judge Marlon A. Polk

Attorneys: Eric W. Wells (County Attorney’s Office) (Appellant) ---

Civil: Sex Offender Commitment Act; petition in error

Proceedings below: The Mental Health Board of the Fourth Judicial District determined L.T. to be a dangerous sex offender with inpatient sex offender treatment as the least restrictive alternative.  The district court granted L.T.’s petition in error and ordered the unconditional discharge of L.T. finding there was not clear and convincing evidence that L.T. was a dangerous sex offender.

Issues: 1) The Supreme Court has jurisdiction to hear this case under Neb. Rev. Stat. §§ 29-2315.01 to 29-2316 following the district court appeal under Neb. Rev. Stat. § 71-1214, 2) the district court erred because the State proved by clear and convincing evidence that L.T. was a dangerous sex offender pursuant to SOCA and that inpatient treatment was the least restrictive alternative, 3) the district court erred in determining outpatient treatment was the least restrictive alternative, and 4) the district court erred in granting the petition in error, dismissing the petition before the board, and unconditionally discharging L.T.

 

S-15-1084 In re Interest of Sandrino T.

S-15-1087 In re Interest of Remus M.

Separate Juvenile Court for Lancaster County, Judge Reggie Ryder

Attorneys: George Dungan (Public Defender’s Office) (Appellant - Trifu) --- Steffanie Garner Kotik (Kotik & McClure Law) (Appellant – Marchidon) --- Christopher Reid (County Attorney’s Office)

Civil: Transfer; jurisdiction; standard of review; ATM skimmer

Proceedings below: The trial court transferred both cases to county court following a consolidated transfer hearing for the co-defendants.

Issues: There was insufficient evidence for the trial court to find Appellant’s case should be transferred to the county court of Lancaster County.

Thursday, October 6, 2016

S-16-0031 In re Interest of Noah B. et al.

Douglas County Separate Juvenile Court, Judge Wadie Thomas Jr.

Attorneys: Patrick McGee (County Attorney’s Office) --- Matthias J. Kraemer (Public Defender’s Office for Appellee Griel B.) --- Liam K. Mechan (Schirber & Wagner LLP for Appellee Michaela B.)

Civil: jurisdiction; res judicata; collateral estoppel

Proceedings below: The trial court adjudicated the children under Neb. Rev. Stat. § 43-247(3)(a) with regard to both parents and later dismissed the State’s supplemental petition on the basis of res judicata and collateral estoppel.  The parties were asked to specifically brief jurisdiction and whether the dismissal of the supplemental petition affected the State’s substantial rights.

Issues: The trial court erred in determining that 1) dismissing the State’s supplemental petition on the basis of res judicata, 2) dismissing the State’s supplemental petition on the basis of collateral estoppel, and 3) dismissing the State’s supplemental petition on the basis of res judicata and collateral estoppel without a presentation of evidence.

 

 

S-16-0004 State (Appellant) v. Sydney L. Thieszen

York County, Judge James C. Stecker

Attorneys: Erin E. Tangeman, Corey M. O’Brien (Attorney General’s Office) (Appellant) --- Jeffery A. Pickens (Nebraska Commission on Public Advocacy)

Civil: Postconviction

Proceedings below: The court determined Appellee was entitled to postconviction relief finding that he was sentenced to a sentence of life imprisonment without parole for a first degree murder when he was 14 years of age. The court vacated the sentence of life imprisonment and ordered a new sentence.

Issues: The district court erred by granting postconviction relief and vacating Appellee’s sentence of life imprisonment for first degree murder.

S-15-1194, Annie J. Windham v. Lakisha Griffin and Lemar Mictizic aka Robert M. Tizic aka Robert M. McTizic

District Court for Douglas County, Hon. Thomas A. Otepka

Attorneys: Mark F. Jacobs (for Windham)—case in default, no appellee

Civil: child custody

Proceedings Below: The district court granted custody of the minor child to Griffin, and awarded Windham visitation.

Issues on Appeal: whether the court erred in (1) awarding Griffin custody; (2) not finding that Griffin forfeited her parental rights.

S-15-1148 In re Interest of Imelda H.

Douglas County Separate Juvenile Court, Judge Wadie Thomas Jr.

Attorneys: Charles Swift (In propria personam Appellant - father) --- Paulette Merrell (County Attorney’s Office)

Civil: Adjudication

Proceedings below: The trial court adjudicated the minor children.  There is very little information about Appellant in the transcript and the brief does not contain useful information.

Issues: The trial court erred in finding 1) not allowing Appellant to proceed in propria personam, and 2) not allowing Appellant to proceed on the merits of his kidnapping claim.

S-14-0685, S-16-0130 State ex rel. Counsel for Discipline of the Nebraska Supreme Court v. David W. Tighe (consolidated cases)

Original Action: Attorney discipline

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) --- no brief filed by Respondent

Proceedings: The Supreme Court issued an order in S-14-0685 suspending Respondent’s license to practice law in Nebraska until further order of the Court. Formal charges were filed in S-16-0130. In his Answer, Respondent admitted all the factual allegations and admitted he violated his oath of office and the Rules of Professional Conduct. Relator Counsel for Discipline filed a motion for judgment on the pleadings which was granted. The cases were consolidated and parties ordered to address the issue of appropriate discipline in the briefs.

Issues: What is the appropriate discipline?

S-16-0098 State v. Roger Beitel (Appellant)

Scotts Bluff County, Judge Leo Dobrovolny and Judge Randall Lippstreu

Attorneys: Robert O. Hippe, Kyle J. Long (Robert Pahlke Law Group PCLLO for Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Conspiracy to commit theft; speedy trial

Proceedings below: Appellant and a co-defendant were charged with theft and conspiracy. A joint trial was set for February 1, 2016, over objection of Appellant. Appellant then filed a motion for discharge on statutory speedy trial grounds alleging the speedy trial clock would expire for him on January 24, 2016, which was overruled. The district court based the decision on Neb. Rev. Stat. § 29-1207(4)(e), the co-defendant clause of the Nebraska speedy trial statute, and held that the co-defendant’s speedy trial would not expire until March 11, 2016. Therefore, the court excluded the time between January 24 and start of trial on February 1, 2016. The State filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: A. Both the trial court and prosecutor mistakenly construed Neb. Rev. Stat. §29-1207(4)(e) in a way that requires a defendant to file a motion to sever a joint trial in order to preserve his or her right to speedy trial and thereby shift the State's responsibility to bring an accused person to trial within the time limits provided by Nebraska speedy trial rules; by misconstruing the statute to mean the longer of two persons' speedy trial calculation is to be used when the statute says the shorter of the two is to be used; and by misconstruing the statute to mean that a failure to file a motion to sever is a valid waiver of rights secured by Nebraska speedy trial rules. B. It was clear error to apply the exclusion period by finding the period of delay occasioned by the joinder of the two cases was reasonable when January 21 and 25, 2016 were both available to bring the defendant to trial and they were within his deadline and when the joinder of the two cases occasioned no delay at all in beginning trial within speedy trial limits. C. It was clear error to find no good cause would exist for severance when severance was unnecessary to hold a speedy trial, when defendant specifically objected to the late trial and asked the court to consider a separate January date, when the uncontradicted evidence shows there was no reason to bring defendant to trial after his deadline expired, and without any explanation of the reasons for applying the exclusion.

Friday, October 7, 2016

A-15-1001 State v. Rosario Betancourt-Garcia (Appellant)

Madison County, Judge Mark A. Johnson

Attorneys: Mark D. Albin (Appellant) --- Austin N. Relph (Attorney General’s Office)

Criminal: Kidnapping, Use of a Deadly Weapon (Firearm) to Commit a Felony; and Conspiracy to Commit Kidnapping

Proceedings below: After a jury trial, Appellant was found guilty of all charges. He was sentenced to life imprisonment on the kidnapping charge, 10 to 30 years’ for Use of a Weapon, and 30 to 50 years’ imprisonment on the Conspiracy charge. The Use of a Weapon sentence was ordered to be served consecutively while the Conspiracy sentence was ordered to be served concurrently.

Issues: The lower court erred in (1) failing to quash the amended information filed on May 21, 2013 as it showed on its face that the 3 year statute of limitations under Neb. Rev. Stat. 29-110 barred the State’s prosecution; (2) failing to direct a verdict of acquittal as the State failed to adduce sufficient evidence to sustain the jury’s verdict that Appellant was fleeing from justice to toll the statute of limitations. (3) Appellant received ineffective assistance of trial counsel based on the dismissal of his appeal of the lower court’s ruling on his motion for absolute discharge, thereby waiving his right to challenge Counts I and II of the Complaint on Speedy Trial grounds. 4. The lower court erred in failing to take into account any mitigating factors in sentencing Appellant to life in prison for Kidnapping, rather than a term of years.

 

 

A-15-1080 In re Adoption of Micah H., a minor child. Daniel H. and Linda H. (Appellants) v. Tyler R.

Saunders County Court, Judge Patrick R. McDermott

Attorneys: John H. Sohl (Appellants)— Jennifer D. Joakim (for Tyler R.)

Civil: Adoption – applicability of the Indian Child Welfare Act

Proceedings Below: The county court found that ICWA applied and denied the complaint for adoption.

Issues: Appellants assign that the county court erred in finding that ICWA applied at the request of the non-Indian father, who had abandoned the family, where neither the Indian tribe nor the Indian mother requested its application. Appellants claim that as a result of erroneously applying ICWA, the court erred in applying a higher burden of proof and in finding that appellants failed to show abandonment by the father.