Supreme Court Case Summaries

December 7, 8 or 9, 2011

WEDNESDAY, DECEMBER 7, 2011, subject to call at 9:00 a.m.

S-11-0100, State v. Benjamin Sprunger (Appellant)

Sarpy County, Judge Max Kelch

Attorneys: Jason E. Troia (Dornan Lustgarten & Troia) (Appellant) --- Erin E. Tangeman (Attorney General’s Office)

Criminal: Possession of child pornography

Proceedings below: After a trial to the court, Appellant was found guilty of possession of child pornography (4 counts) and sentenced to probation.

Issues: The trial court erred in (1) denying Appellant’s motion to suppress relating to the October 29, 2009 search warrant and November 5, 2009 search warrant; (2) finding sufficient evidence to support the conviction.

 
S-11-0303, State v. Timothy D. Jimenez (Appellant)

Cheyenne County, Judge Derek C. Weimer

Attorneys: Donald J.B. Miller (Matzke Mattoon & Miller LLC) (Appellant) – George R. Love (Attorney General’s Office) and Senior Certified Law Clerk Jordan M. Osborne

Criminal: Interstate Agreement on Detainers; motion to produce Inmate Status Certificate; request for sentencing

Proceedings below: The trial court found the IAD did not apply to this case finding there were no untried matters pending in the State of Nebraska. The court denied Appellant’s motion for court order. Appellee, State of Nebraska, filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in (1) finding Appellant was not eligible for protection under the Interstate Agreement on Detainers; (2) finding Appellant’s motion for court order should be denied; (3) failing to order the State to request an Inmate Status Certificate from the Colorado Department of Correctional Services; (4) failing to find that the detainer placed upon Appellant by the State of Nebraska disqualified the Appellant from eligibility from certain correctional programs in the Colorado Department of Corrections and he had no remedy for the imposition of this sanction; (5) falling to order the State of Nebraska to request the State of Colorado release him to the State of Nebraska so he could be sentenced on the criminal matter pending here.

S-11-0254, State v. Servio Diaz (Appellant)

Colfax County, Judge Mary C. Gilbride

Attorneys: Mark Porto (Shamberg Wolf McDermott & Depue) (Appellant) --- James D. Smith (Attorney General’s Office)

Criminal: Plea; writ of error coram nobis, motion to withdraw plea; immigration status issues

Proceedings below: The district court found Appellant was not entitled to a writ of error coram nobis as he failed to provide clear and convincing evidence that the requirements necessary for such writ had been met.

Issues: The district court erred in denying Appellant’s request for relief.

S-11-0421, Anthony, Inc. and Anthony J. Fucinaro, Jr., La Casa Pizzaria, Inc., and Omaha Restaurant Association v. City of Omaha

Douglas County, Hon. Marlon A. Polk

Attorneys: D.C. Bradford, Ryan J. Dougherty, Justin D. Eichmann (for appellants) --- Thomas Mumgaard (for appellee City of Omaha)

Civil: taxation. This case involves a determination of whether a city tax was illegal.

Proceedings Below: The district court concluded that the City's municipal ordinance imposing a 2.5% tax upon the receipts of certain establishments was not an illegal sales tax, illegal occupation tax or unconstitutional special legislation. As such, the court denied the appellants' motion for summary judgment and request for an injunction and granted the City's motion for summary judgment.

Issues on Appeal: Whether the municipal ordinance assessing a 2.5% tax on gross receipts of drinking and dining establishments is an illegal sales or occupation tax, or if it is special legislation.

S-11-0280, State v. Glen E. Riensche; H.M. (alleged victim and Appellant)

Lancaster County, Judge Paul D. Merritt, Jr.

Attorneys: Randall Wertz (Recknor Wertz & Associates) (Appellant H.M.) --- James D. Smith (Attorney General’s Office)

Criminal:  Contempt; exception under Neb. Rev. Stat. § 25-1210 for public ignominy.

Proceedings below: The trial court found H.M. in contempt of court for failing to comply with the order compelling H.M. to testify at Riensche’s trial for first degree sexual assault of H.M. The court committed H.M. to jail for 90 days or until such time as she testified as ordered, whichever occurs first.

Issues: The trial court erred in (1) not giving the statutory language in Neb. Rev. Stat. § 25-1210 its plain and ordinary meaning which would have allowed H.M. to assert a privilege against testifying; and (2) erring in its interpretation of § 25-1210 as it violates public policy.

THURSDAY, DECEMBER 8, 2011, 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) (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: Count I: First degree murder; Count II: Use of a weapon to commit a felony; Count III: First degree murder; Count IV: Use of a 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 all charges by a jury. He was sentenced on Counts I and III: Life imprisonment without parole; Counts II and IV: 10 to 15 years to be served consecutive to the life sentences; Count V: 10 to 20 years concurrent; and Count VI: 10 to 15 years concurrent; Count VII: 10 to 15 years to be concurrent with all count except Count VI and on Count VIII, a concurrent 10 to 15 year sentence.

Issues: The trial court erred in (1) allowing the jury to observe a surveillance video which included a witness’s markings; (2) precluding Appellant from presenting evidence that a State’s witness failed a polygraph test; (3) allowing telephone records over Appellant’s objection; (4) imposing life sentences without parole which constitute cruel and unusual punishment as Appellant was 15 years old at the time of the offenses; (5) allowing the State to present, over objection, testimony concerning fingerprint identification through the use of automated fingerprint identification system; (6) sustaining the State’s hearsay objection to an internet news report proffered by Appellant to prove that news of his arrest and fingerprint evidence was public knowledge. Appellant also argues that the aggregation of errors in this case requires reversal and remand for a new trial.

S-11-0450, In re Interest of Charlicia H.
S-11-0451, In re Interest of Jauvier P.

Consolidated Appeals

Separate Juvenile Court for Douglas County, Judge Vernon J. Daniels

Attorneys: John M. Baker (Special Assistant Attorney General for Nebraska Department of Health and Human Services) (Appellant) --- Cody Miltenberger (Douglas County Attorney’s Office) --- no briefs filed by either juvenile.

Criminal: Discharge of OJS; placement of juvenile under supervision of probation

Proceedings below: The juvenile court discharged the juveniles from the Office of Juvenile Services (OJS) and placed the juveniles under the supervision of a juvenile probation officer pursuant to an Interagency Agreement between the Department of Health and Human Services and the Administrative Office of Probation.

Issues: The separate juvenile court erred in discharging the juveniles from OJS and placing them on probation subject to the supervision of a probation officer. The separate juvenile court erred by confusing the functions of OJS with probation and determining it had the authority to discharge the juveniles from OJS and still maintain jurisdiction over the case.

S-10-1217, State v. Patrick B. Bauldwin (Appellant)

Douglas County, Judge Patrick J. Mullen

Attorneys: Kelly M. Steenbock (Public Defender’s Office) (Appellant) --- Erin E. Tangeman (Attorney General’s Office)

Criminal: Second degree murder

Proceedings below: Appellant was charged with first degree murder. After a jury trial, the jury returned a verdict of guilty to the offense of second degree murder. Appellant was sentenced to a term of life imprisonment to life imprisonment with no credit for days served.

Issues: The district court erred in (1) denying his motion to exclude statements made to law enforcement; (2) overruling his motion in limine regarding the reliability of DNA evidence and allowing testimony regarding DNA evidence over objection; (3) admitting Exhibit 154, a photo that was not relevant and was prejudicial; (4) accepting a guilty verdict without sufficient evidence; (5) imposing an excessive sentence.

S-11-0214, John Doe (Appellant) v. Board of Regents of the University of Nebraska , University of Nebraska Medical Center, John Gollan, M.D., Ph.D., Robert Binhammer Ph. D., Jeffrey Hill, M.D., Gerald Moore, M.D., David O’Dell, M.D., Wendy Grant, M.D., Sharon Stoolman, M.D., Michael Spann, M.D., in those individuals’ official and individual capacity (Appellees)

Lancaster County, Judge Jodi L. Nelson

Attorneys: John Doe (Pro Se) --- Amy L. Longo, George T. Blazek (Ellick Jones Buelt Blazek & Longo LLP) (for Appellees)

Civil: Breach of contract. Determination of continued academic enrollment.

Proceedings below: The trial court granted the Appellees’ motion for summary judgment.

Issues: The district court erred in (1) not determining the treatment of plaintiff by defendants was arbitrary, capricious and in bad faith; (2) not determining that principal relationship between a college and its students is contractual; (3) not concluding that a contract existed between the plaintiff and defendants; (4) not viewing the evidence in a light most favorable to Appellant; (5) not finding that the “Professionalism Checklist” was not completed as part of Appellant’s surgery clerkship, was not in existence at the SEC meeting on November 7, 2006 and was not used by the SEC in the determination to terminate Appellant for violation of the contract; (6) relying on improper evidence; (7) not determining that a contract was breached by Appellees.

S-11-0434 State v. Jorge Vigil (Appellant)

Madison County, Judge Robert B. Ensz

Attorneys: Jennifer A. Birmingham (Public Defender’s Office) --- George R. Love (Attorney General’s Office)

Criminal: Sexual Assault of a Child, First Degree (2 counts)

Proceedings below: Appellant was found guilty by a jury of the 2 counts, both Class IB felonies. He was sentenced to consecutive terms of 20 to 30 years in prison.

Issues: The lower court erred in overruling Appellant’s motion in limine and allowing testimony of Kelli Lowe and evidence of the Child Advocacy Center (CAC) interview as inadmissible hearsay.

FRIDAY, DECEMBER 9, 2011, subject to call at 9:00 a.m.

S-11-0243, State v. Rufus B. Freemont (Appellant)

Douglas County, Judge W. Mark Ashford

Attorneys: Peder Bartling (Appellant) --- Kimberly A. Klein (Attorney General’s Office)

Criminal: Count I: Second degree murder; Count II: Use of a deadly weapon to commit a felony and Count III: Possession of a deadly weapon by a felon

Proceedings below: A jury found Appellant guilty of all three counts and he was sentenced 55 to 60 years on Count I; 20 to 20 years on Count II and 5 to 10 years on Count III. Each was ordered to be conserved consecutively.

Issues: The trial court erred in (1) allowing the State to introduce evidence that Appellant possessed a firearm prior to the homicide; (2) allowing the State to introduce evidence of Appellant’s “consciousness of guilt”; (3) allowing the ballistics expert to testify after failing to comply with Neb. Rev. Stat. § 29-1912; (4) allowing the State to introduce evidence of prejudicial photos; (5) failing to give the jury an instruction regarding eyewitness identification and in giving a step instruction; (6) finding sufficient evidence to support the verdict. Appellant also argues he received ineffective assistance of trial counsel.

 
S-10-1207, State v. Francis L. Seberger (Appellant)

Sarpy County, Judge William B. Zastera

Attorneys: Pro Se Appellant --- James D. Smith (Attorney General’s Office)

Civil: Postconviction

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

Issues: The district court erred in (1) failing to consider and rule on the pending motion to amend; (2) not granting a prompt evidentiary hearing; (3) finding that Appellant did not receive ineffective assistance of counsel at trial; (4) finding that Appellant did not receive ineffective assistance of counsel on direct appeal.

S-11-0620, Christy Spitz, as surviving spouse of Roger McCannon and as next friend of Danielle E. Spitz-McCannon (Appellant) v. T.O. Haas Tire Co. and Cincinnati Casualty Co.

Nebraska Workers’ Compensation Court

Attorneys: William J. Erickson and Lori A. Zeilinger (Appellant) --- John W. Iliff (Gross & Welch PCLLO)

Civil: Nebraska Workers’ Compensation Act; determination of surviving spouse benefits. 

Proceedings below: The trial court dismissed Appellant’s petition in part and the review panel affirmed.

Issues: The trial court erred in (1) finding Appellant was not the surviving spouse of decedent; (2) finding the burden of proof was clear and convincing evidence; (3) failing to find that sufficient prima facie evidence of the existence of a marriage had been presented; (4) failing to find an inference of validity of the marriage between the two existed; (5) failing to find the burden of proof to disprove the existence of the marriage rested with defendants.

 
S-11-0314, In re Interest of S.J., Mental Health Board of the Fourth Judicial District v. S.J. (Appellant)

Douglas County, Judge Gary B. Randall

Attorneys: Zoe R. Wade (Assistant Public Defender for Appellant) --- Jeffrey J. Lux (County Attorney’s Office)

Civil: Determination of dangerous sex offender and appropriate level of treatment; Sex Offender Commitment Act (SOCA)

Proceedings below: The Board determined that Appellant suffered from pedophilia and met the statutory definition of dangerous sex offender. The Board held that outpatient treatment was the appropriate treatment alternative imposing the least possible restraint upon Appellant’s liberty. However, the Board later reversed itself and committed Appellant to inpatient treatment finding it was the only treatment available. The district court affirmed. 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) finding Appellant was not deprived of his fundamental right to liberty when he was committed to inpatient treatment after the Board’s finding that outpatient treatment was appropriate; (2) finding the SOCA’s provisions did not violate Appellant’ right to procedural due process; (3) finding Appellant’s commitment by a three-member administrative board consisting of only one legally trained member does not violate Appellant’s right to procedural due process; (4) finding clear and convincing evidence that Appellant is substantially unable to control his criminal behavior; (5) finding inpatient treatment to be the least restrictive alternative.

S-11-0805, Sarpy County Farm Bureau, A Nebraska nonprofit Corporation; John Knapp and Ron Woodle (Appellees) v. Learning Community of Douglas and Sarpy Counties; School District No. 1 of Douglas County (Omaha School District); and School District No. 1 of Sarpy County (Bellevue) (Appellants) et al.

Sarpy County, Judge William B. Zastera

Attorneys: Elizabeth Eynon-Kokrda; Kelly R. Dahl, Kenneth W. Hartman (Baird Holm LLP) (for Appellant Omaha Public Schools) --- Scott E. Daniel, Kurth A. Brashear (Brashear LLP) (for Appellant, Learning Community of Douglas and Sarpy Counties) --- Patrick J. Sullivan, Benjamin E. Maxell (Adams & Sullivan PC) (for Appellant School District No. 1 of Sarpy County) ---Jeff C. Miller, Duncan A. Young, Keith I. Kosaki (Young & White) (for Appellee Douglas County School District No. 17 a/k/a Millard School District)

Civil: Declaratory judgment; determination of constitutionality of taxing authority of the Learning Community of Douglas and Sarpy Counties as enacted by the Nebraska Legislature.

Proceedings below: The trial court granted the Appellees’ motion for summary judgment and held that Neb. Rev. Stat. §§ 77-344(2)(b) and (g); 79-1073 and 70-1073.01 violated Neb. Const. art. VIII, § 1A and as such, were unconstitutional. The trial court denied the motions for summary judgment filed by OPS, Bellevue and the Learning Community.

Issues: The three Appellants assign the following errors: The tiral court erred in (1) finding Neb. Rev. Stat. §§ 77-344(2)(b) and 79-1073 violate Neb. Const. Art. VIII, § 1A; (2) finding Neb. Rev. Stat. §§ 77-344(2)(g) and 79-1073.01 violate Neb. Const. art. VIII § 1A; (3) granting the Appellees’ motion for summary judgment; (4) denying the motions for summary judgment filed by OPS, Bellevue and the Learning Community.