Supreme Court Case Summaries

December 2, 3, 4, or 5, 2008

TUESDAY, DECEMBER 2, 2008, subject to call at 9:00 a.m.

S-08-0192, State v. Jacob Daly (Appellant)

Lancaster County, Judge Steven Burns

Attorneys: John C. Jorgensen (Appellant) --- George R. Love

Criminal: DUI, possession of marijuana and possession of drug paraphernalia

Proceedings below: A jury found Appellant guilty of DUI. The court found him guilty of possession of marijuana and drug paraphernalia. He was sentenced 7 days in jail, a $400 fine and 6 months license suspension. He was fined $100 each for the infractions. The district court affirmed.

Issues: The trial court erred in (1) overruling Appellant’s pretrial motion in limine regarding the admissibility of drug recognition expert (DRE) testimony; (2) allowing the opinion of Thomas Page; (3) receiving exhibits 20-26; (4) allowing the opinion of Zenon Zuk; (5) allowing the opinion of Karl Citek; (6) receiving Exhibit 30; (7) receiving Exhibit 32; (8) allowing Citek to give a legal conclusion; (9) allowing the testimony of Gregory Cody; (10) admitting Exhibit 35; (11) determining Darrell Fisher as an expert; (12) allowing Thomas Schwarten to testify as an expert; (13) not receiving the cross-examination testimony of Gregory Cody and Darrell Fisher; (14) determining Michelle Spirk was an expert; (15) receiving Exhibit 42; (16) receiving Exhibit 41; (17) not ruling on Appellant’s objections to the State’s offer of Exhibits 17 and 18; (18) overruling the motion for further finding of fact; (19) overruling Appellant’s motion to strike a juror for cause; (20) overruling Appellant’s 404 motion; (21) overruling Appellant’s motion for mistrial; (22) determining Jesse Hilger was an expert; (23) overruling Appellant’s motion for mistrial regarding closing argument; (24) overruling Appellant’s motion for new trial.

S-08-0042, State v. Peter M. Sinica, Jr. (Appellant)

Lancaster County, Judge Steven D. Burns

Attorneys: Dennis Keefe, Matthew Graff (Public Defender’s Office) --- James D. Smith (Attorney General’s Office)

Criminal: Child abuse resulting in death

Proceedings below: The jury returned a guilty verdict which was entered by the trial court. The trial court sentenced Appellant 20 to 30 years in prison.

Issues: The district court erred in failing to instruct on the lesser included offense of manslaughter.

S-08-0316, State v. Perry Davis (Appellant)

Sheridan County, Judges Brian Silverman (trial) and Randall L. Lippstreu (sentencing)

Attorneys: P. Stephen Potter, Barbara Brogan (Appellant) --- Nathan A. Liss (Attorney General’s Office)

Criminal: First degree sexual assault; sexual assault on a child

Proceedings below: Appellant was found guilty of both charges. He was sentenced on Count I to 20 to 30 years in prison. On Count II, he was sentenced 4 to 5 years. Terms to be served consecutively.

Issues: The district court erred in (1) finding sufficient evidence to support the convictions; (2) overruling Appellant’s motion for new trial; (3) imposing an excessive sentence.

S-08-0359, State v. James R. Pischel (Appellant)

Lancaster County, Judge Karen B. Flowers

Attorneys: Matthew G. Graff (Public Defender) --- George R. Love (Attorney General)

Criminal: Enticing a Child with a Computer, Neb. Rev. Stat. § 28-320.02

Proceedings below: Appellant’s motion to suppress was overruled. The matter went to a jury who found Appellant guilty of the crime. H was sentenced 1 to 2 years in prison.

Issues: The district court erred in (1) overruling Appellant’s motion to suppress; (2) refusing to instruct the jury on entrapment; (3) allowing the jury to have access to Exhibits 5 and 6 during deliberations; (4) finding sufficient evidence to support the jury’s verdict.

S-05-0142, State v. Jose Sandoval (Appellant)

Madison County, Judge Patrick G. Rogers

Attorneys: Ronald E. Temple (Fitzgerald, Vetter & Temple) (Appellant) --- J. Kirk Brown (Attorney General’s Office)

Criminal: Five counts of first degree murder; 5 counts of use of a deadly weapon to commit a felony

Proceedings below: After a jury trial, appellant was adjudged guilty of all charges. He was sentenced by a three-judge panel to death for the five murder counts, consecutive sentences. He was sentenced to 48 to 50 years each on the five weapon counts, all to be served consecutive to each other and to the five death sentences as well.

Issues: I. The trial court erred when it impaneled an anonymous jury and when it failed to give a curative instruction or, in the alternative, appellant’s trial counsel provided ineffective assistance of counsel when he failed to object to the trial court impaneling an anonymous jury and failed to request a curative instruction. II. The trial court erred when it failed to give a cautionary instruction to the jury that the reason the jurors were transported from Grand Island to Aurora is for parking and mileage reasons as opposed to the jurors being endangered if allowed to drive themselves. III. The trial court erred in disclosing the existence and/or contents of the notice of aggravation to the jury before the verdict was rendered on the issue of the appellant’s guilt or, in the alternative, appellant’s trial counsel was ineffective in failing to object to the trial courts disclosure of the existence and/or contents of the notice of aggravation to the jury. IV. The trial court erred when it failed to conduct a preliminary examination under §29-1607 as to the aggravating circumstances alleged in the second amended information and/or appellant’s trial counsel was ineffective in failing to demand a preliminary examination. V. The trial court erred when it failed to cure, by a cautionary or curative instruction, the jurors' discussion of the case during voir dire in violation of the trial courts prior admonition and/or appellants’ trial counsel provided ineffective assistance of counsel in failing to request voir dire of the entire jury panel. VI. The trial court erred when it overruled the appellant’s motion to strike inasmuch as LB1 is unconstitutional facially and as applied to the extent that it discourages a capital defendant from exercising his right to a jury trial as to the aggravating circumstances. VII. The trial court erred when it overruled the appellant’s motion to quash inasmuch as LB1 is ex post facto legislation in violation of article I, section 10 of the United States Constitution and article I, section 16 of the Nebraska constitution. VIII. The trial court erred in overruling appellant’s 3/21/03 motion to quash relative to the appellant’s claim that the jury must determine, under a felony murder theory or accomplice liability theory, that the appellant was a major participant in the crime and exhibited reckless disregard for human life. IX. The trial court erred in failing to instruct the jury in the aggravation trial that the jury must determine, under a felony murder theory or accomplice liability theory, that the appellant was a major participant in the crime and exhibited reckless disregard for human life and/or appellant’s trial counsel was ineffective for failing to request such instructions. X. The trial court erred when it overruled the appellant’S motion to quash inasmuch as the penalty of death, however carried out and applied to the appellant, is cruel and unusual punishment under the 8th amendment to the United States Constitution and article 1, section 9 of the Nebraska constitution. XI. The trial court erred when it overruled the appellant’s motion to quash inasmuch as the enactment of LB1 is violative of the due process clause of the fifth and fourteenth amendments to the unites states constitution and article 1, section 3 of the Nebraska constitution. XII. Appellant’s trial counsel provided ineffective assistance of counsel in recommending to the trial court that the appellant be examined by a court-appointed psychiatrist to determine the competency of the appellant to proceed pro se. XIII. The trial court erred in receiving the testimony of Y. Scott Moore at the mitigation phase of the appellant’s trial or, in the alternative, appellants trial counsel provided ineffective assistance of counsel in failing to preserve a proper objection to the testimony of Y. Scott Moore. XIV. Defendant’s trial counsel provided ineffective assistance of counsel by failing to object to the testimony of Y. Scott Moore for the reason that Dr. Moore testified directly about truthfulness of another witness or a defendant in a criminal case which is not proper. XV. The trial court erred in overruling the motion by appellants trial counsel to withdraw filed on February 20, 2003. XVI. The trial court erred in failing to discharge appellant’s trial counsel after appellant’s trial counsel alerted the trial court to a conflict of interest in continuing to represent appellant. XVII. The trial court erred in overruling the motion by appellant’s trial counsel to withdraw filed on September 8, 2004. XVIII. The trial court erred in overruling the motion for substitute counsel filed by the appellant and the oral motion of appellant’s trial counsel to withdraw from representation of appellant. XIX. The trial court erred when it allowed prosecutorial misconduct, when it overruled the appellant’s objections to prosecutorial misconduct and/or appellant’s trial counsel provided ineffective assistance of counsel by failing to object to or move for a mistrial because of prosecutorial misconduct during closing arguments in both the guilt phase and the aggravation phase of appellant’s trial. XX. The trial court erred when it commented, during closing argument in the guilt and aggravation phase, on the evidence and/or alternatively appellant’s trial counsel was ineffective for failing to object to the trial courts improper comment on the evidence. XXI. The use of the word "apparent" in the "exceptional depravity" instruction during the aggravation phase is vague, imprecise, and incapable of reasoned and rational application in violation of the eighth and fourteenth amendments. XXII. The trial court erred when it instructed the jury at the aggravation phase regarding the 1(f) aggravating circumstance or, in the alternative, appellant’s trial counsel provided ineffective assistance of counsel in failing to request an instruction which correctly set forth the law. XXIII. The trial court erred when it failed to give a limiting instruction concerning the evidence offered by the state of Nebraska as to what constituted "the murder" in four (4) of the five (5) aggravators and/or appellant’s trial counsel provided ineffective assistance of counsel in failing to request said limiting instruction and/or appellants trial counsel failed to object to improper argument by the prosecutor and/or failed to move for mistrial due to prosecutorial misconduct during closing argument. XXIV. The trial court erred when it failed to give a limiting instruction that the "risk of death to at least several other persons" aggravator could not be found by using evidence that the appellant and others created a risk of death to others after the murders occurred and trial counsel was ineffective in failing to request such an instruction and was also ineffective in failing to object to the prosecutor's closing argument that suggested to the jury that the jury could consider such evidence. XXV. The trial court erred in submitting, during the aggravation phase of the trial, jury instructions concerning accessorial liability regarding the "great risk of death" aggravator because the plain language of § 29-2523 indicates that principles of accessorial liability cannot be used and should not use to prove this aggravating circumstance and/or appellant’s trial counsel was ineffective in failing to request such an instruction. XVI. The trial court erred when it overruled trial counsel's objection to the "especially heinous, atrocious or cruel" jury instruction for the reason that said instruction is unconstitutional as applied to appellant. XXVII. The trial court erred when it instructed the jury at the aggravation trial that it could consider evidence that the victims suffered "mental anguish" and/or appellant’s trial counsel was ineffective for failing to object to instruction No. 2a. XXVIII. Appellants trial counsel provided ineffective assistance of counsel by eliciting speculative testimony from Todd Uhlir about the trajectory of the bullet that exited the US Bank building. XXIX. Appellant’s trial counsel provided ineffective assistance of counsel in failing to retain and/or call a forensic pathologist as a witness to rebut the testimony of Jerry Jones, MD. XXX. The trial court erred in overruling the appellant's motion for judgment of acquittal as a matter of law at the close of the state's case as to the five (5) aggravating factors alleged. XXXI. The trial court erred in overruling the appellant's motion for judgment of acquittal as a matter of law at the close of all the evidence as to the five (5) aggravating factors alleged:

1. Murder was committed to conceal identity of perpetrator of crime
2. Murder was especially heinous, atrocious or cruel
3. The murder manifested exceptional depravity
4. Great risk of death to others

XXXII. The trial court erred in denying the appellant the opportunity to adduce evidence and to testify in rebuttal at the time of the mitigation trial and/or appellant's trial counsel provided ineffective assistance of counsel by failing to make an offer of proof relative to the evidence and testimony to be offered in rebuttal. XXXIII. The trial court erred when it failed to consider evidence of sentencing orders from all Nebraska first degree murder cases for purposes of sentence excessiveness and proportionality review. XXXIV. The trial court erred when it received and reviewed the presentence investigation relative to the five (5) counts of murder in the first degree for the reason that the sentencing panel considered prejudicial victim impact evidence and also was afforded the opportunity to consider evidence of non-statutory aggravating circumstances in violation of the appellant’s right to a jury trial. XXXV. The trial court erred when it overruled the appellant’s motions regarding electrocution by death inasmuch as Nebraska's death penalty scheme is unconstitutional facially and as applied to the extent that it permits the state to use electrocution as the sole method of execution. XXXVI. The trial court erred when it overruled the appellant’s motions regarding electrocution by death inasmuch as death by electrocution is cruel and unusual punishment under the amendment to the United States Constitution and article 1, section 9 of the Nebraska constitution. XXXVII. The trial court erred when it denied appellant’s motion for jury at mitigation hearing and sentencing. XXXVIII. The sentencing panel committed error and violated appellant’s federal and state constitutional right to a fair trial and to due process when the panel ordered and received the transcript from the aggravation trial and/or appellant’s trial counsel was ineffective in failing to object to the sentencing panel's receipt and use of the transcript. XXXIX. The trial court erred in permitting the jury to believe that the responsibility for determining the appropriateness of a death sentence lies with the three-judge sentencing panel inasmuch it violates the appellants right to a fair trial, due process and to be free from cruel and unusual punishment and/or appellants trial counsel was ineffective, during voir dire and argument, in encouraging the jury to believe that the responsibility for determining the appropriateness of a death sentence lies with the three-judge panel and passing those jurors for cause. XL. The trial court erred when it permitted the state to endorse over 500 witnesses on the second amended information as the endorsement of over 500 witnesses deprives appellant of his fourteenth amendment right to due process and a fair trial and/or appellants trial counsel was ineffective in failing to object to the endorsement of over 500 witnesses on the second amendment information. XLI. The death penalty in this case and the state's decision to seek it are based upon invidious discrimination, are unguided by rational, relevant and consistent standards, and are based on irrational and illegal criteria and/or appellant’s trial counsel was ineffective in failing to raise this issue at the trial level. XLII. Appellant’s trial counsel provided ineffective assistance of counsel when he failed to adduce evidence of a prior consistent statement of the appellant relative to appellant’s claims that he used LSD on the date of the murders.

WEDNESDAY, DECEMBER 3, 2008, subject to call at 9:00 a.m.

S-08-0491, Mehruz Kamal v. Sohel Mohammed Imroz (Appellant)

Douglas County, Judge Sandra L. Dougherty

Attorneys: Adam E. Astley, Virginia Albers (Lieben Whitted) (Appellant) --- Kathleen Schmidt

Civil: Dissolution action with custody issues

Proceedings below: The marriage was dissolved. Appellee was granted sole legal and physical custody of the minor child. Appellant was ordered to pay $815 a month in child support. Appellant was given parenting time with the minor child. Both parties were prohibited from leaving the U.S. with the minor child without prior approval of the other parent.

Issues: The district court erred in (1) failing to award joint legal custody of the minor child; (2) failing to allocate adequate parenting time to Appellant; (3) its award of child support; (4) prohibiting Appellant from traveling with the child to Bangladesh.

S-08-475, Kathryn A. Schleuter (Appellant) v. CBM Americas Food Service Part, Inc. and Midwest Family Mutual Workers’ Compensation Insurance Company, Inc.

Nebraska Workers’ Compensation Court

Attorneys: Rolf Edward Shasteen (Appellant) --- (Abigail A. Wenninghoff, Jason Kidd (Engles Ketcham Olson & Keith)

Civil: Determination of causation

Proceedings below: The trial court found that Appellant’s bilateral hand injuries were not caused by her employment. The review panel affirmed.

Issues: The trial court erred in finding (1) determining a causation opinion rendered prior to the date Appellant first had to miss work in order to seek treatment was insufficient to prove causation; (2) dismissing her petition.

S-08-0582, Julie Lagemann (Appellant) v. Nebraska Methodist Hospital

Nebraska Workers’ Compensation Court

Attorneys: James E. Harris (Harris Kuhn) (Appellant) --- Lindsay K. Lundholm (Baird Holm)

Civil: Penalties, interest and attorney fees in workers’ compensation action

Proceedings below: The trial court denied plaintiff’s motion for penalties, interest and attorney fees.

Issues: The court erred in (1) finding defendant’s payment was timely and it had no liability for waiting time payments, attorney’s fees and interest; (2) failing to apply long-standing case law that holds the employer responsible to pay for at least the amount for which liability is undisputed and that a penalty is warranted for non-payment.

S-07-0903, Regency Homes Association, a Not for Profit Nebraska Corporation v. Jeffrey L. Schrier (Appellant)

Douglas County, Judge Thomas A. Otepka

Attorneys: Robert W. Mullin, (Lieben Whitted Houghton Slowiaczek & Cavanagh PC LLO) (Appellant) --- Bruce H. Brodkey, Jason C. Demman (Brodkey Cuddigan Peebles & Belmont LLP) and Steven G. Olson II (Engles Ketcham Olson & Keith PC)

Civil: Declaratory judgment action to enforce restrictive covenants

Proceedings below: The trial court found against Appellant and for the Association. On appeal, the Court of Appeals affirmed the district court in a memorandum opinion. See Regency homes Association v. Schrier, A-07-0903 (July 7, 2008). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in determining (1) a minority of the members of a homeowners association can modify, extend or terminate declared restrictive covenants; (2) an amended restrictive covenant that limits roof construction to wood shingles and prohibits asphalt products is not a “new” covenant where the parties have stipulated tha the prior original “Declarations did not limit or restrict roof construction or materials”; (3) the proper interpretation of the By-Laws of Regency Homes Association is that the Declaration containing Restrictive Covenants can be modified, extended or terminated by a minority of the members or lot owners.

S-08-0581, Angus Garey, Tom Kiplinger, Claude Cappel, Robert Ambrosek, Robert Anderson, Larry Durner, Kenny Frasier, Dan Funk and Steven Whipple v. Nebraska Department of Natural Resources; Brian Dunnigan, in his official capacity as Acting Director of the Nebraska Department of Natural Resources; Upper Republican Natural Resources District; Middle Republican Natural Resources District; Lower Republican Natural Resources District et al. (Appellants)

Lancaster County, Judge Paul D. Merritt

Attorneys: Justin D. Lavene, Katherine J. Spohn (Attorney General’s Office) (for State of Nebraska) (Appellant) --- Donald G. Blankenau, Thomas R. Wilmoth (Husch Blackwell Sanders LLP) (for the Natural Resource Districts) (Appellants) --- Jeanelle R. Lust, Rodney M. Confer, LeRoy W. Sievers, Jocelyn W. Golden (Knudsen Berkheimer Richardson & Endacott LLP)(Appellees)

Civil: Declaratory Judgment Action; LB 701 constitutionality determination of LB 701

Proceedings below: The district court found (1) the property tax levy authorized by LB 701 is not unconstitutional and was to meet local purposes and not in violation of Article VIII, § 1A; (2) the property taxes did not violate the Nebraska Constitution in that the levy did not divert taxes raised in one district for the sole benefit of another district; (3) the property tax levy authorized by LB 701 violated Neb. Const. art. III, § 18 finding the language creased a permanently closed class but due to a “savings clause” found in § 34 of LB 701, the court severed the unconstitutional language and left the remaining portions of LB 701 intact. The trial court struck a portion of Neb. Rev. Stat. § 2-3225(1)(d) as unconstitutional special legislation.

Issues: The district court erred in (1) finding the language of Neb. Rev. Stat. § 2-3225(1)(d) (Supp. 2007) constituted special legislation which created a permanently closed class in violation of Neb. Const. art. III, § 18; (2) applying the probability analysis from Haman v. Marsh, 237 Neb. 699(1991) instead of applying the bright line standard from State v. Kelso, 92 Neb. 628 (1912); (3) relying on two opinions given in the legislative history of LB 701 as the sole justification for its conclusion that it is highly improbably that additional Natural resource Districts could enter the classification found in Neb. Rev. Stat. § 2-3225(1)(d) (Supp. 2007); (4) finding it was highly improbable that Nebraska would enter into an interstate compact with three or more states involving a river and that the natural resource district with jurisdiction over the river would also include one or more irrigation districts in the river basin.

Cross Appeal issues: The trial court erred in (1) finding LB 701’s property tax is not for statue purposes in violation of Article VIII, § 1A of the Nebraska Constitution; (2) deciding LB 701 does not commute taxes on all real property outside the Appellant NRDs in violation of Art. VIII, § 4 of the Nebraska Constitution.

S-07-0325, David Kline and Patricia L. Kline (Appellants) v. Donald C. MInard, Farmers Insurance Exchange, and American Family Insurance Company

Douglas County, Judge W. Russell Bowie

Attorneys: John C. Wieland, Kevin J. McCoy (Dwyer Smith Gardner Lazer Pohren & Rogers LLP) (Appellants) --- Daniel P. Chesire (Lamson Dugan & Murray LLP) and Raymond E. Walden (for Appellee Farmers Insurance Exchange)

Civil: Underinsured motorist benefits

Proceedings below: Farmers moved for summary judgment which was denied by the original judge hearing the case. After the judge’s retirement and reassignment of the case to the current judge, Farmers filed a second motion for summary judgment. This time, the court granted the motion for summary judgment. On appeal, the Court of Appeals reversed and remanded for further proceedings in a memorandum opinion. See Kline v. Minard, A-07-325 (June 10, 2008). Farmers filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: The Court of Appeals erred in finding that Exclusion No. 4 in the Farmers policy is void as against public policy under the Nebraska Uninsured and Underinsured Motorist Insurance Coverage Act, Neb. Rev. Stat. §§ 44-6401 to 44-6414 (Reissue 2004) and in failing to follow Jones v. America Family Mutual Insurance Co., 274 Neb. 186 (2007) and by giving effect to long-repudiated “reasonable expectations” principles.

THURSDAY, DECEMBER 4, 2008, subject to call at 9:00 a.m.

S-08-0417, State v. Terrence Moore (Appellant)

Douglas County, Judge Joseph S. Troia

Attorneys: Scott C. Sladek, Joseph J. Kehm (Public Defender’s Office)(Appellant) --- George R. Love (Attorney General’s Office)

Criminal: Two counts: second degree murder; two counts: use of a weapon to commit a felony

Proceedings below: Appellant entered a plea of guilty to all counts. His sentences were vacated after appeal and the matter remanded for resentencing. See State v. Moore, 274 Neb. 790 (2008). Appellant was re-sentenced as follows: Count I, second degree murder: life imprisonment to life imprisonment; Count II, use of a weapon to commit a felony: 50 years to 50 years; Count III, second degree murder: 30 to 45 years; Count IV, use of a weapon to commit a felony: 20 to 30 years. All sentences were ordered to be served consecutively to one another and credit for 1,015 days served was given.

Issues: (1) The sentence imposed by the district court on Count I, life imprisonment to life imprisonment, is erroneous because it is not an authorized penalty for a Class IB felony, contrary to State v. Marrs, 272 Neb. 573 (2006). (2) The sentences imposed were excessive.

S-07-0991, Don Incontro v. Liane Jacobs (Appellant)

Douglas County, Judge Gregory M. Schatz

Attorneys: Karen Bates-Crouch, Christen Carns (Senior Certified Law Clerk) (Bates-Crouch Law Office PC LLO) and Erik M. Rees (Blinn Reees & Loveland PC LLO) (Appellant) --- Joseph S. Daly, Mary M. Schott (Sodoro Daly & Sodoro PC)

Civil: Paternity and custody

Proceedings below: The trial court entered an order modifying the decree, decreasing Plaintiff’s child support obligation and decreasing the percentage of unreimbursed medical expenses. The Court of Appeals reversed finding that Plaintiff’s 2006 application to change custody was res judicata as to the 2007 request for child support modification. See, Incontro v. Jacobs, No. A-07-0991 (May 27, 2008). Plaintiff filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: (1) Res judicata should not have been applied by the Court of Appeals as Appellant did not meet her burden of proof. (2) The trial court correctly determined there had been a material change of circumstances. (3) The Court of Appeals incorrectly found that an application to change custody bars a later application to modify child support.

S-08-0502, In re Conservatorship of Carol A. Gibilisco, a Protected Person

Douglas County Court, Judge Lyn V. White

Attorneys: James Polack (for Appellant Tommy Stutzka, Conservator) --- Donald J. Pavelka, Matthew E. Eck (Locher Pavelka Dostal Braddy & Hammes LLC) (for Popular Financial Services, LLC, a Delaware Limited Liability Company)

Civil: Petition for Allowance Claim

Proceedings below: The trial court held approved the Appellee lender’s claim based on the finding of the U.S. District Court’s order to remit $85,000 to Popular Bank.

Issues: The probate court erred by ordering the Conservator to pay $85,000 to Popular Bank because the U.S. District Court exceeded its subject matter jurisdiction in the underlying Amended Judgment stating that “Carol Gibilisco shall remit the sum of $85,000 to Popular Bank.”

S-08-0151, State v. Elmore Hudson (Appellant)

Douglas County, Judge Peter C. Batallion

Attorneys: Brian S. Munnelly (Appellant) --- James D. Smith (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The district court granted Appellant relief based on the trial court’s awarding of credit for time served at sentencing and in failing to preserve and raise the issue on direct appeal but denied relief as to all other grounds in the motion.

Issues: The district court erred in determining that the trial court’s communication to the jury was not prejudicial to the extent that the defendant was denied a fair trial and therefore, trial counsel was ineffective in failing to file the appropriate motion so as to preserve the issue for appeal.

S-08-0527, Karen A. Bishop (Appellant) v. Specialty Fabricating Co.

Nebraska Workers’ Compensation Court

Attorneys: James F. Fenlon (Appellant) --- Bradley D. Shidler (Hotz Weaver Flood Breitkreutz & Grant)

Civil: Workers’ Compensation claim; award of benefits for injured employee

Proceedings below: The trial court entered an award finding Appellant suffered an injury to her left arm and elbow as a result of a work-related accident on April 29, 2003. The court further found Appellant developed post traumatic stress disorder (PTSD) and depression as a result and found a total loss of earning power.

Issues: The court erred in (1) failing to state why the court found the scheduled member injury adversely affected the plaintiff such that her permanent loss of earning power based on PTSD and depression could not be fairly and accurately assessed without considering the impact of the schedule member injury upon her employability; (2) finding Zavala v. ConAgra Beef Co., 265 Neb. 188 (2003) prevented the court from awarding additional disability benefits; (3) failing to consider the holding in Madlock v. Square D Co., 269 Neb. 675 (2005).

FRIDAY, DECEMBER 5, 2008, subject to call at 9:00 a.m.

S-08-0476, William E. Fleeman (Appellant) v. Nebraska Pork Partners, a Nebraska general partnership and Commissioner of Labor of the Nebraska Workforce Development, Department of Labor

Platte County, Judge Robert R. Steinke

Attorneys: William E. Fleeman (Pro Se) --- John H. Albin (Dept of Labor)

Civil: Claim for unemployment benefits

Proceedings below: The employment tribunal found Appellant was an independent contractor. The district court affirmed.

Issues: The district court erred in finding that the services performed by Appellant fell within the scope of Neb. Rev. Stat. § 48-604(5).

S-08-0397, Jeffrey L. Stueve v. Valmont Industries, Inc.

Nebraska Workers’ Compensation Court

Attorneys: Robert G. Krafka (Representing himself as plaintiff’s former attorney) --- Robert D. Mullin, Jr. (McGrath North) (for Valmont Industries)

Civil: attorney fees/attorney’s lien

Proceedings below: The trial court denied the Appellant/former attorney an attorney’s lien upon the award of the plaintiff under Neb. Rev. Stat. § 48-108.

Issues: The trial court erred in (1) not placing a one-third attorney’s lien upon the permanent indemnity award of $47,602.49; (2) determining the Appellant was not entitled to attorney fees for his work on behalf of plaintiff; (3) allowing plaintiff to be unjustly enriched be receiving permanent indemnity payments without paying his former attorney who had worked on his behalf for 3 years.

S-07-0923, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. William R. Boose, III (Respondent)

Original Action

Attorneys: John W. Steele (Counsel for Discipline) --- Kevin P. Tynan (Pro Hac Vice) (Richardson & Tynana PLC) and Richard Halbert (Halbert Dunn & Halbert LLC) (for Respondent

Civil: Attorney Discipline

Proceedings below: The District One Committee on Inquiry filed an Application for Temporary Suspension along with Respondent’s consent to the suspension. A temporary suspension was entered by the Nebraska Supreme Court. Respondent was found guilty in the case of U.S. v. William R. Boose, Case No. 07-CR-08107. On May 15, 2008, the Florida Supreme Court suspended the Respondent for 3 years. The Relator filed its motion for reciprocal discipline.

Issues: Should the motion for reciprocal discipline be granted?

S-07-0517 and S-07-0960, (consolidated) State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. William C. Peters, Jr. (Respondent)

Original Action

Attorneys: Kent L. Frobish (Assistant Counsel for Discipline) (Relator) --- Maren Lynn Chaloupka, Robert Paul Chaloupka (Chaloupka Holyoke Hofmeister Snyder & Chaloupka) (for Respondent)

Civil: Attorney discipline

Proceedings below: Formal charges were filed against Respondent and the cases were consolidated for hearing before the Referee. The Referee found Respondent violated certain provisions of the code of Professional Responsibility and the Rules of Professional Conduct. The Referee recommended the Respondent’s license be suspended for 60 days and upon reinstatement, Respondent should be ordered to work with a practice monitor for one year at his own cost. The Relator filed exceptions to the Referee’s recommended sanction as being too lenient.

Issues: Whether the sanction recommended by the Referee is too lenient?  Whether the Referee applied the “clear and convincing evidence” standard of review regarding findings that ethical violations were committed? Whether the Referee correctly determined which party bears the burden of proof, regarding findings that ethical violations were committed? Whether the Referee’s apparent determination that the testimony of the complainants constituted credible evidence on which to base findings that ethical violations were committed?

S-07-0911, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. Jeffrey L. Orr (Resondent)

Original Proceeding

Attorneys: Kent L. Frobish (Counsel for Discipline) --- Mark A. Christensen, Brandon K. Dickerson (Cline Williams Wright Johnson & Oldfather LLP) (Respondent)

Civil: Attorney Discipline

Proceedings below: The Referee found by clear and convincing evidence that Respondent violated certain provisions of the Nebraska Code of Professional Conduct and his oath of office as an attorney. The referee recommended a public reprimand.

Issues: No exceptions were filed as to the Referee’s report.

S-08-0142, State v. Luis O. Barranco (Appellant)

Lancaster County, Judge Jeffre P. Cheuvront

Attorneys: Robert G. Hays (Public Defender’s Office) --- Erin E. Leuenberger (Attorney General’s Office)

Criminal: Strangulation; third degree domestic assault

Proceedings below: A jury found Appellant not guilty of strangulation but guilty of third degree domestic assault. He was sentenced to a period of 180 days in jail. Appellant filed a petition to bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The trial court erred in refusing to sequester the jury during deliberations as required by Neb. Rev. Stat. § 29-2022 (Reissue 1995).