Supreme Court Case Summaries

November 6, 7, 8 or 9, 2012

TUESDAY, NOVEMBER 6, 2012, subject to call at 9:00 a.m.

S-11-0023, State v. Juan E. Castaneda (Appellant)

Douglas County, Judge John D. Hartigan

Attorneys: Thomas C. Riley (Public Defender) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Count I, Murder in the First Degree; Count II, Use of deadly weapon to commit a felony; Count III, Murder in the First degree; Count IV, Use of a deadly weapon to commit a felony; Count V Attempted Murder in the Second Degree; Count VI, Attempted Robbery; Count VII, Use of a Deadly Weapon to commit a Felony; and Count VIII, Criminal Conspiracy

Proceedings below: Appellant was found guilty of the above crimes after a jury trial. Appellant was sentenced as follows: Counts I and III: life in prison without possibility of parole; Counts II and IV: 10 to 15 years, to be served consecutively to the life sentences; Count V: concurrent 10 to 20 year sentence; Count VI: a concurrent 10 to 15 year sentence; Count VII, a concurrent 10 to 15 year sentence to be concurrent with all counts but Count VI and a concurrent 10 to 15 years in prison for Count VIII. The matter was argued before the Supreme Court in December 2011. On July 12, 2012, the Court ordered the matter to be reargued November 2012 and ordered supplemental briefing by the parties.

Issues on reargument: (1) Whether, under Miller v. Alabama, 567 U.S. ____, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (a) Nebraska’s sentencing scheme is mandatory, and (b) Castaneda’s two sentences of life imprisonment constitute life without parole sentences; (2) Whether the facts that the crimes were committed in 2008 and Castaneda was sentenced in 2010 are of any consequence to the question of whether the Miller holding applies to this case; and (3) If the Miller holding applies to this case, what is the proper remedy?

S-11-0301, State v. Douglas M. Mantich (Appellant)

Douglas County, Judge J. Patrick Mullen

Attorneys: Adam Sipple (Johnson & Mock) (Appellant) --- J. Kirk Brown (Attorney General’s Office)

Civil: Postconviction, life sentence

Proceedings below: The trial court denied Appellant’s postconviction claims without holding an evidentiary hearing. The matter was submitted in October 2011 to the Nebraska Supreme Court. On July 11, 2012, the Nebraska Supreme Court ordered the case re-argued and placed on the November 2012 Call and ordered the parties to submit supplemental briefing.

Issues on re-argument: Issues on re-argument: (1) Whether, under Miller v. Alabama, 567 U.S. ____, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (a) Nebraska’s sentencing scheme is mandatory, and (b) Mantich’s sentence of life imprisonment constitutes a life without parole sentence; (2) Whether the facts that the crimes were committed in 1993 and Mantich was sentenced in 1994 are of any consequence to the question of whether the Miller holding applies to this case; and (3) If the Miller holding applies to this case, what is the proper remedy?

S-11-0486, State v. Eric A. Ramirez (Appellant)

Douglas County, Judge John D. Hartigan

Attorneys: James Martin Davis (Davis Law Office) and Mark A. Weber (Walentine O’Toole McQuillan & Gordon) for Appellant --- Carrie A. Thober (Attorney General’s Office)

Criminal: First degree murder (2 counts); Use of a firearm to commit a felony (3 counts); attempted 2nd degree murder (one count); attempted robbery (one count); criminal conspiracy (one count)

Proceedings below: A jury found Appellant guilty of all of the above charges. On the first degree murder charges, Appellant was sentenced by the trial court to two terms of life imprisonment without the possibility of parole. On June 25, 2012, the U.S. Supreme Court decided Miller v. Alabama, 567 U.S. ____, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).  On July 11, 2012, the Nebraska Supreme Court entered an Order directing the parties submit supplemental briefing on the applicability of Miller v. Alabama to this case.

Issues: The trial court erred in (1) allowing testimony and an exhibit purportedly showing Appellant’s locations based upon his cell phone records when there was insufficient foundation for the testimony and exhibit; (2) instructing the jury to disregard the exhibit and certain testimony relating to the exhibit after the parties had rested, rather than granting the motion for mistrial; (3) allowing the State to offer and then receiving an exhibit after the parties had rested their evidence and after the jury had already commenced its deliberations, without any motion by the State to reopen the evidence.

Supplemental briefing assignments of error: 1. By mandating that all children under the age of 18 convicted of homicide receive lifetime incarceration, without any meaningful opportunity for the child to obtain release based on demonstrated maturity and rehabilitation, Nebraska's mandatory sentencing scheme of life imprisonment under Neb. Rev. Stat. $$ 28-105(1) and29-2520(1) violates the Eighth Amendment's ban on cruel and unusual punishment. 2. By mandating that all children under the age of 18 convicted of homicide receive lifetime incarceration, without first requiring a sentencing hearing that takes into account how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison, Nebraska's mandatory sentencing scheme of life imprisonment under Neb. Rev. Stat. §§ 28-105(l) and 29-2520(l) violates the Eighth Amendment's ban on cruel and unusual punishment. 3. By sentencing the Defendant to two terms of life imprisonment without the possibility of parole, the trial court imposed sentences which were not authorized under the existing Nebraska sentencing statutes. Those sentences were erroneous and must be reversed pursuant to State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). In addition, those sentences are void as unconstitutional under Miller v. Alabama, supra.

S-12-0517, Jeremiah J. (Appellant) v. Dakota D.

Hall County, Judge Philip Martin

Attorneys: Mark Porto (Shamberg Wolf McDermott & Depue) (Appellant) --- Rachel A. Daugherty (Myers & Daugherty)

Civil: Adoption; necessity of consent

Proceedings below: The father filed a petition to establish the necessity of his consent to the adoption of the minor child under Neb. Rev. Stat. § 43-104.05. The mother filed a motion for summary judgment which was granted after a hearing. The Appellant’s petition was dismissed. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The county court erred in granting Appellee’s motion for summary judgment because the five-day filing requirement of Neb. Rev. Stat. § 43-104.02 was unconstitutional as applied to Appellant and genuine issues of material fact otherwise remained.

S-12-0069, Ziad L. Zawaideh, M.D. (Appellant) v. Nebraska Department of Health and Human Services Regulation and Licensure, and State of Nebraska ex. rel. Jon Bruning, Attorney General

Lancaster County, Judge John Colborn

Attorneys: William M. Lamson, Jr., Denise M. Destache (Lamson Dugan & Murray LLP) (Appellant) --- Michael J. Rumbaugh (Attorney General’s Office)

Civil: Jurisdiction to preside over matter; Request to rescind Assurance of Compliance (AOC) after investigation.

Proceedings below: This case was previously before the Supreme Court. See Zawaideh v. Health and Human Services Regulation & Licensure, 280 Neb. 997 (2011) (affirmed in part, and in part, reversed and remanded for further proceedings). Upon remand, Appellant filed an amended complaint asserting both fraudulent and negligent misrepresentation claims. The Appellees moved for summary judgment which was granted by the district court.

Issues: The district court erred in (1) finding that it lacked subject matter jurisdiction; (2) finding that Dr. Zawaideh's request for declaration that the AOC be rescinded or voided on the grounds of fraudulent misrepresentation is a claim which may only be maintained under the State Contract Claims Act, Neb. Rev. Stat. §§ 81-8,302 to 81-8,306 (Reissue 2008); (3) finding that Dr. Zawaideh's claim is barred by the State Contract Claims Act.

WEDNESDAY, NOVEMBER 7, 2012, subject to call at 9:00 a.m.

S-11-0912, State v. Jerry Watson (Appellant)

Douglas County, Judge Peter C. Bataillon

Attorneys: Thomas C. Riley (Public Defender) (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: First degree murder; use of a weapon to commit a felony

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced to life in prison for Count I and a consecutive 10 to 20 year sentence on Count II with credit for time served.

Issues: The district court committed reversible error when it denied Appellant’s motion to dismiss the charges due to the 33 year delay in prosecuting the case and proceeding to trial would violate Appellant’s right to confrontation, right to present a complete defense and right to a fair trial with due process of law. Alternatively, this Court should set aside the conviction as there was insufficient evidence to support the verdict. (2) The trial court committed reversible error by denying the motion for mistrial based on misconduct of the prosecutor during Appellant’s examination of one of the witnesses.

S-12-0263, State v. Arlyn P. Ildefonso (Appellant)

Douglas County, Judge W. Russell Bowie

Attorneys: Pro Se Appellant--- Nathan A. Liss (Attorney General’s Office)

Civil: Postconviction (life sentence)

Proceedings below: The trial court denied Appellant’s motion for postconviction relief without holding an evidentiary hearing.

Issues: The district court erred in (1) denying Appellant postconviction relief based on the allegations raised in the motion; (2) failing to grant and conduct an evidentiary hearing based on the factual allegations raised in the verified motion; (3) failing to grant the Appellant relief on the grounds of wrongful conviction and actual innocence.

S-12-0558, Larry Blaser, Terry McCaw and Patricia McCaw (Appellees) v. County of Madison, Nebraska, a Political Subdivision of the State of Nebraska (Appellant)

Madison County, Judge Robert B. Ensz

Attorneys: Vincent Valentino (Appellant) --- Todd B. Vetter (Fitzgerald Vetter & Temple)

Civil: Political Subdivisions Tort Claims Act for liability against County of Madison

Proceedings below: Trial occurred and the court entered its order finding the county had a duty to maintain the portion of 545th Avenue where the accident occurred and awarded damages to Larry Blaser and Terry and Patricia McCaw. The trial court reduced the award to Blaser, the operator of the vehicle, by 40% for contributory negligence and then determined damages based on Tadros v. City of Omaha, 273 Neb. 935 (2007). The previous appeal at S-11-1048 was dismissed by the Nebraska Supreme Court for lack of jurisdiction pursuant to Neb. Ct. R. App. P. § 2-107(A)(2). Upon remand, the district court entered a supplemental final order dismissing the claims of plaintiff Sharon Blaser.

Issues: The District Court erred as a matter of law in its finding that the County had a duty to maintain the vacated portion of 545th Ave. 2. The District Court erred in finding that, if some duty to maintain the vacated portion of 545th Ave. existed, that such duty was breached by the County. 3. The District Court erred by failing to find Neb. Rev. Stat. § 13-910(9) applicable in this case such that the County would retain sovereign immunity from suit. The District Court erred in failing to address in its findings of fact and conclusions of law the affirmative defenses pled and proved at trial of assumption of the risk and alternative safe route, and in failing to find that these defenses precluded any liability of the County. 5. The District Court erred in its failure to apportion a greater share of negligence to the driver, Larry Blaser. 6. The District Court erred in its failure to apportion any negligence to the passenger, Terry McCaw. 7. Even if the County was somehow negligent, the District Court erred in its apportionment of negligence as compared between Blaser, McCaw, and the County, in that it should have attributed a lesser portion of negligence to the County, and a greater portion to Blaser and McCaw. 8. The District Court erred in allowing a recused Judge to appoint his own successor Judge, creating an ongoing appearance of impropriety.

S-11-0685, State v. David G. Castillas (Appellant)

Douglas County, Judge Gary B. Randall

Attorneys: Beau G. Finley (Finley & Kahler PCLLO) (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: Discharge Firearm at a Dwelling (2 counts); 2nd Degree Assault; and Use of a Deadly Weapon to Commit a Felony (3 counts)

Proceedings below: A jury found Appellant guilty of all the charges. He was sentenced 5 to 20 years for both counts of Discharging a Firearm, 5 to 10 years for 2nd Degree Assault and 5 to 10 years in prison for all 3 counts of Use of a Deadly Weapon. The sentences for all counts were ordered to run consecutively to each other with credit for time served of 397 days. The State filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) allowing testimony concerning whether the Appellant possessed a firearm hours after the second shooting; (2) admitting photographs of Appellant possessing firearms; (3) finding sufficient evidence to support all convictions; (4) not sustaining the motion for directed verdict at the end of the State’s case-in-chief; (5) giving jury instruction No. 11 regarding voluntary flight of Appellant; (6) ordering a sentence that was substantively different than the sentence it had pronounced.

Supplemental Briefing: The district court’s calculation of parole eligibility and mandatory release was incorrect under State v. Kinser, 283 Neb. 560 (2012).

THURSDAY, NOVEMBER 8, 2012, subject to call at 9:00 a.m.

S-12-0191, State v. Thomas Merchant (Appellant)

Lancaster County, Judge Steven D. Burns

Attorneys: John S. Berry (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: Unlawful motor vehicle dealing; habitual criminal

Proceedings below: After a trial to a jury, Appellant was found guilty. He was determined to be a habitual criminal and sentenced 12 to 30 years in prison.

Issues: The District Court erred by (1) not allowing appellant to testify or otherwise put on evidence regarding his knowledge of his requirement to have a dealer's license; (2) by allowing the State's witness William Jackson to testify as to his interpretation of the law regarding the licensing of vehicles in the State of Nebraska; (3) instructing the Jury on instruction number 3; (4) by allowing the prosecution to impeach the defendant with a prior conviction; (5) not granting a mistrial when the prosecutor misstated the law during closing arguments.(6) The evidence was insufficient to convict.(7)VII. The sentence was excessive.

S-12-0206, State v. Tyler Reinpold (Appellant)

Scotts Bluff County, Judge Randall Lippstreu

Attorneys: John S. Berry (Berry Law Firm) (Appellant) --- George R. Love (Attorney General’s Office)

Criminal: 10 counts of possession of child pornography

Proceedings below: The trial court overruled the motion to suppress evidence. A jury found Appellant guilty of all 10 counts. He was sentenced 30 to 60 months on all counts with the sentences on counts I, II, III, IV, V, VI, IX and X to be served concurrently to each other. The sentences on counts VII and VIII were ordered to be served concurrently to each other but consecutive to the other 8 counts for a combined total not less than 60 months but not more than 120 months with credit for time served. The State filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues The district court erred in (1) determining Michael Wakely and Janice Wakely had shared authority to consent to the search of the northeast basement storage room; (2) determining the seizure of the hard drives was justified under the plain view doctrine; (3) finding trooper Lundgren had a reasonable concern that evidence would disappear if not immediately seized; (4) failing to find that trooper Lundgren made a deliberate falsehood or acted with reckless disregard for the truth in attesting that property seized from the residence was Appellant’s abandoned property; (5) finding sufficient evidence to support the verdicts.  (6) Jury instruction no. 3 is fatally defective under a plain error analysis.

S-11-1072, State v. Autumn R. Eagle Bull (Appellant)

Sheridan County, Judge Travis O’Gorman

Attorneys: Michael T. Varn (Appellant) --- Carrie Thober (Attorney General’s Office)

Criminal: Child neglect--Misdemeanor

Proceedings below: Appellant was found guilty after a jury trial in county court. She appealed to the district court which affirmed her conviction and sentence.

Issues: The district court erred in (1) failing to find error in the county court’s denial of a directed verdict; (2) finding sufficient evidence to support the jury’s verdict.

S-11-0060, James Henderson and Jaime Henderson, husband and wife (Appellants) v. City of Columbus, Nebraska, a Municipal Corporation

Platte County, Judge Robert R. Steinke

Attorneys: George H. Moyer, Jr. (Moyer & Moyer) (Appellants) --- Erik C. Klutman, Mark M. Sipple (Sipple Hansen Emerson Schumacher & Klutman) (City of Columbus) ---Renee Eveland (Wolfe Snowden for Amicus Curiae Jesus Santos, Anna Santos, Beatrice EdenDwayne Groteluschen, Cindy Groteluschen, Martin Weber, Karen Weber, Marlin G. Delimont, Dennis W. Kappenman) --- William F. Austin (Erickson Sederstrom PCLLO for Amicus Curiae League of Nebraska Municipalities and League Association of Risk Management)

Civil: Property damage; liability and damages on theories of nuisance, trespass, negligence and inverse condemnation

Proceedings below: The trial court entered a judgment finding general for the City of Columbus and dismissing the plaintiffs’ amended complaint with prejudice. The Court of Appeals affirmed in part, and in part reversed and remanded for further proceedings. See Henderson v. City of Columbus, 19 Neb. App. 668 (2012). Appellee/City of Columbus filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in (1) reversing the district court by disregarding the explicit factual finding of the trial court that proximate cause of the sewer backup had not been proven; (2) reversing the district court by not properly distinguishing Steuben v. City of Lincoln, 249 Neb. 270 (1996) from the instant case and thus, effecting overruling Steuben, supra; (3) creating a new definition and standard as to proximate cause in an inverse condemnation cause of action; (4) reversing the district court by relying on the California case of CSAA v. City of Palo Alto, 138 Cal. App. 4th, 474 (2006).

S-11-0888, State v. Kimberly Wiedman (Appellant)

Scotts Bluff County, Judge Leo Dobrovolny

Attorneys: Bell Island (Island & Huff PCLLO) (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: 10 counts of acquiring a controlled substance by fraud

Proceedings below: A jury found Appellant guilty on all 10 counts. She was sentenced to a term of 3 years’ probation. The State filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The court erred in (1) failing to direct a verdict when the State failed to prove the elements of the crime; (2) failing to sustain the motion to suppress the pharmacy records as they were seized without a warrant; (3) failing to sustain the motion to suppress when the state failed to offer subpoenas which were used to obtain Appellant’s pharmacy records; (4) finding the affidavit for the warrant set forth sufficient facts establishing probable cause.

FRIDAY, NOVEMBER 9, 2012, subject to call at 9:00 a.m.

S-11-0407, State v. Travis T. Mitchell (Appellant)

Lancaster County, Judge Steven Burns

Attorneys: Robert G. Hays (Public Defender’s Office) --- George R. Love (Attorney General’s Office)

Criminal: DUI 4th offense

Proceedings below: A jury found Appellant guilty of DUI. After an enhancement hearing, the district court found Appellant had 3 prior convictions for DUI and enhanced the current offense to a 4th offense. Appellant appealed. The Court of Appeals affirmed. See State v. Mitchell, 19 Neb. App. 801 (2012). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in affirming the district court’s finding that Appellant’s prior Colorado conviction for driving while ability impaired could be used to enhance the penalty for driving under the influence.

S-12-0294, Klaus P. Linder (Appellant) v. Douglas Kindig, Mayor of the City of La Vista, Brenda Carlisle, Ron Sheehan, Alan Ronan, Anthony Gowan, Kelly Sell, Mike Crawford, Mark Ellerbeck, Terrilyn Quick, as members of the City Council of and for the City of La Vista and the City of La Vista, a Nebraska City of the First Class

Sarpy County, Judge William B. Zastera

Attorneys: K.C. Engdahl (Appellant) --- Gerald L. Friedrichsen, William M. Bradshaw (Fitzgerald Schorr Barmettler & Brennan PCLLO)

Civil: Constitutionality of a municipal ordinance

Proceedings below: The trial court dismissed Appellant’s petition finding the petition was barred by a 4 year statute of limitations.

Issues: The trial court erred in (1) concluding Appellant’s complaint failed to state a claim upon which relief could be granted; (2) entering its order of dismissal with prejudice; (3) determining Appellant’s complaint is barred by a 4-year statute of limitations.

S-12-0242, Timothy Lee Peterson (Appellant) v. Robert Houston, Director, Nebraska Department of Correctional Services (Appellee)

Lancaster County, Judge Andrew R. Jacobsen

Attorneys:       Appellant, pro se --- George Love, AG’s office

Civil:               Habeas Corpus, In Forma Pauperis

Proceedings Below:    The district court denied Peterson’s petition for a writ of habeas corpus and motion to proceed in forma pauperis, finding Peterson’s petition to be frivolous.

Issues on Appeal:        Peterson argues the district court erred in finding his petition for a writ of habeas corpus frivolous and then denying his petition and accompanying motion to proceed in forma pauperis for that reason.

S-12-0173, Butler County Dairy, L.L.C. (Appellant) v. Township of Read, Butler County, Nebraska and Butler County, Nebraska v. Township of Summit, Butler County, Nebraska (Intervenor)

Butler County, Judge Mary C. Gilbride

Attorneys: Stephen D. Mossman (Mattson Ricketts Davies Steward & Calkins) (Appellant) --- Jarrod S. Boitnott (Baylor Evnen Curtiss Grimit & Witt LLP) (for Township of Read) --- Gregory D. Barton (Harding & Schultz PCLLO) (for Township of Summit)

Civil: Complaint for declaratory and injunctive relief: livestock confinement facilities regulation

Proceedings below: The trial court, after hearing, granted the Appellees’ motions for summary judgment. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) failing to find the zoning and environmental regulations adopted by Read Township exceed Read Township’s statutory authority; (2) failing to find the pipeline ban adopted by Read Township exceeds Read Township’s statutory authority; (3) finding Neb. Rev. Stat. § 23-224 (Reissue 2007) provides a statutory basis for Read Township’s enactment of the pipeline ban; (4) finding Neb. Rev. Stat. § 23-224 provides a statutory basis for Read Township’s enactment of the environmental regulations; (5) failing to find the environmental regulations adopted by Read Township are preempted by the Nebraska LWMA and Title 130; (6) failing to find the pipeline ban adopted by Read Township  is preempted by the Nebraska LWMA and Title 130; (7) failing to find the zoning regulations adopted by Read Township are not preempted by county zoning statutes; (8) finding that Butler County properly deferred to Read Township’s invalid township authority over the permitting of the waste pipeline; (9) finding that Butler County was a necessary party to the action.

S-11-1095, Richard Molczyk (Appellant) v. Kerrie K. Molczyk

Douglas County, Judge James T. Gleason

Attorneys: Phillip G. Wright (Appellant) --- Amy Sherman

Civil: Dissolution with custody

Proceedings below: The trial court found it had jurisdiction to proceed as the motion to reinstate the complaint was pending before Appellee filed her complaint for dissolution in Lancaster County. The trial court dissolved the marriage and awarded Appellee custody of the minor children.

Issues: (1) The trial court did not have jurisdiction. (2) The trial court erred in its custody award. (3) The trial court erred in awarding alimony. (4) The trial court failed to equitably divide assets. (5) The trial court erred in awarding attorney fees to Appellee.