Nebraska Criminal Law Case Summaries
State v. Piper, 289 Neb. 364, Oct. 31, 2014
Issues on Appeal:
The issues on appeal were whether the trial court erred in (1) holding that the rules of evidence do not apply at suppression hearings and (2) denying Piper’s motion to suppress based upon the legality of a DUI checkpoint.
In 2012, Piper was stopped at a vehicle checkpoint near Scottsbluff. Trooper Peterson alleged that Piper had bloodshot, watery eyes and that he could smell alcohol emanating from the vehicle. He then subjected Piper to a battery of field sobriety tests and a preliminary breath test. Based upon the results of those tests, Piper was arrested for suspicion of DUI and transported for further testing of her BAC, which resulted in a .134.
Piper moved to suppress all evidence as the fruits of an illegal search and seizure. During the hearing, the trial court held that the rules of evidence did not apply. The court then suppressed the HGN test and the nonstandardized field sobriety tests but held that Trooper Peterson had sufficient probable cause to arrest Piper for DUI.
Piper renewed her objections at trial but was overruled and a jury found her guilty of DUI. During the trial, the state offered evidence that the checkpoint was governed by State Patrol policy and that all vehicles were stopped rather than leaving the decision as to which vehicles would stopped up to the discretion of the troopers.
The Court first examined Piper’s assertion that the rules of evidence should apply during a suppression hearing. Piper argued that Neb. Rev. Stat. § 27-104 is to be interpreted differently than Fed. R. Evid. 104(a), which states that when determining preliminary admissibility, a court is not bound by the rules of evidence, except those regarding privileges. The Court disagreed, saying that under State v. Pullens, 281 Neb. 828 (2011), § 27-104 is to be interpreted in a similar fashion as Fed. R. Evid. 104(a). Thus, the Court states, Nebraska state courts are not bound by the rules of evidence when determining preliminary questions of admissibility. The Court then stated that a motion to suppress hearing is a preliminary hearing for the purposes of § 27-1101(4)(b), despite Piper’s assertion that, pursuant to that section, a “preliminary examination” refers only to a hearing that is required before the filing of an information pursuant to a felony charge.
Next, the Court stated that in order for the checkpoint to pass Fourth Amendment muster, the checkpoint must have (1) involved a permissible purpose, (2) involve minimal intrusion, and (3) not been operated at the mere “unfettered discretion” of law enforcement. In holding that the checkpoint was constitutional, the Court stated that the purpose, alcohol-related enforcement, was permissible, the brief investigation of each vehicle and driver were minimally intrusive, and that the checkpoint was administered pursuant to Nebraska State Patrol policy.
On the issue of whether the rules of evidence apply to suppression hearings, the Court held that they do not. On the issue of whether the DUI check point was constitutionally valid, the Court held that the checkpoint did not violate Piper’s Fourth Amendment rights because the purpose was permissible, minimally intrusive, and operated pursuant to a state agency policy. Conviction affirmed.
State v. Castillo-Zamora, 289 Neb. 382, October 31, 2014
Issues on Appeal:
Castillo-Zamora was found guilty of first degree sexual assault. He alleges that the district court erred by (1) failing to allow him to inquire on redirect as to his witness’ felony conviction after that witness was impeached by the state; (2) not granting a mistrial despite both parties moving therefor; and (3) admitting hearsay statements. Castillo-Zamora also alleged various claims of ineffective assistance of counsel where were disposed of due to an insufficient record.
Castillo-Zamora’s first assignment of error was that the district court erred by not allowing him to inquire on redirect as to his own witnesses’ felony conviction after that witness was properly impeached by the State. The Court first examined Neb. Rev. Stat. § 27-609(1), which provides that on cross-examination, a witness may be impeached with a felony or crime of dishonesty. Once a conviction is established, however, no further questions pertaining to the nature of the crime or punishment may be asked. The Court noted that it had yet to determine the applicability of § 27-609(1) during redirect and held that the section applies. Thus, Castillo-Zamora’s inquiry as to his witnesses’ conviction following impeachment was improper and the trial court did not err in sustaining the State’s objection.
Castillo-Zamora’s second assignment of error is that the district court erred when it denied the parties’ joint motion for mistrial. During trial, Castillo-Zamora’s counsel attempted to impeach a State witness by asking whether the witness had been convicted of forgery. This further inquire into a crime of dishonesty is the type of question prohibited by § 27-609(1) and State v. Johnson, 226 Neb. 618, 621 (1987). The State objected but promptly withdrew its objection. Following the witnesses’ testimony, the State moved for a mistrial, which Castillo-Zamora joined. Despite the improper question, the court denied the parties’ motion because the State failed to properly object to the question.
Without deciding whether the improper question rose to the level necessary for a mistrial, the Court held that the State did not properly object thus the trial court did not err in denying a mistrial. The Court also held that although Castillo-Zamora joined in the motion for mistrial, a party claiming mistrial cannot have created that prejudice himself. Castillo-Zamora’s counsel was wholly responsible for the improper question and thus cannot claim that any prejudice rising therefrom should result in a mistrial.
Castillo-Zamora’s third assignment of error was that the district court erred in allowing certain hearsay statements to be admitted. During trial, one of the State’s witnesses testified regarding statements made by the victim after the sexual assault. These statements were deemed hearsay but allowed in under the “excited utterance” exception. Castillo-Zamora argued that the conversation allegedly inciting the excited utterances was not sufficiently startling and that enough time passed for the shock to have dissipated by the time the victim made the statements to the witness. The Court found no merit in this argument, holding that given the circumstances, an unwanted sexual advance in an isolated area, the emotion state of the declarant, and that the declarant was still in an emotionally-charged state, the statements made were excited utterances for the purposes of § 27-803(1).
On the issue of whether the trial court should have allowed Castillo-Zamora to inquire as to an impeached witnesses’ prior conviction, the Court held that a party may not, on re-direct, inquire as to an impeached witnesses’ prior conviction once that conviction has been established. As to whether the trial court’s denial of the joint motion for mistrial was in error, the Court held that it was not because the State did not timely object to the questioning and because Castillo-Zamora created the alleged prejudice and cannot move for a mistrial based upon prejudice he created. Finally, The Court held that hearsay otherwise prohibited was properly admitted as an excited utterance exception to the hearsay rule. Conviction affirmed .
State v. Hansen, 289 Neb. 478, November 14, 2014
Issues on Appeal:
The State alleged that the Court of Appeals erred in holding that the evidence presented at trial was insufficient to find the defendant guilty of aiding the consummation of a felony.
Daphne Hansen was found guilty of second degree arson, conspiracy to commit arson, and aiding in the consummation of a felony for her role in burning down a friend’s house. Hansen’s co-conspirator, Jerry Torres, testified that Hansen took him on a shopping spree as payment for setting the fire. The Court of Appeals reversed Hansen’s conviction for aiding in the consummation of a felony, holding that under Neb. Rev. Stat. § 28-205, the person Hansen aided in secreting, disguising, or converting the proceeds of a felony must have been “involved…in committing the underlying felony” and because neither Hansen nor Torres received any of the insurance proceeds, there was insufficient proof to convict Hansen of aiding in the consummation of a felony.
The Court first held that § 28-201(1) does not require the language “…or otherwise profit from a felony” to apply to both the person who aids and the person who is aided. Thus, because Torres profited from the felony through the shopping spree provided by Hansen, there was sufficient evidence to find Hansen guilty of aiding Torres.
The Court next addressed Hansen’s claim that her conviction for aiding the consummation of a felony is incompatible with her conviction for the underlying arson arguing that under the State’s interpretation, “[c]onsummation of the felony makes that crime one and the same as aiding and abetting a felony” and thus, consummation would be unneeded. The Court disagreed, holding that § 28-205 involves activity conducted after the felony is committed and requires distinct proof separate from that required for aiding and abetting.
The Court held that the Court of Appeals misinterpreted Neb. Rev. Stat § 28-205 as requiring both the person who aids and person who is aided in the consummation of a felony to profit from the felony. Instead, § 28-205 requires that one party receive benefits from the felony and that another person intentionally assist the one who receives benefits. As to whether a defendant can be charged with both aiding in the consummation of the felony and the underlying felony itself, the Court held that the elements for each are distinct, thus both crimes can be charged.
State v. Planck, 289 Neb. 510, November 14, 2014
Issues on Appeal:
On appeal, Planck argued that the district court erred in failing to give a jury instruction on the defense of entrapment by estoppel
In 2012, Planck was convicted of reckless driving, the court impounded her license for sixty days, and she was given a “work permit”. Following the impoundment period, her license was returned in the mail. The conviction put her over the twelve point limit and, two days following her conviction, the DMV mailed a letter to Planck’s last-known address stating that her license was revoked for a period of six months. With approximately two months remaining in the six month revocation period, Planck was stopped for a traffic violation during which the officer learned that her license had been revoked. She was arrested and charged with driving under revocation.
At trial, Planck argued that when her license was returned to her following the impoundment period, she believed that her license was valid and that she had no notice of the DMV revocation. She offered a jury instruction on the defense of entrapment by estoppel but the trial court refused, holding that she did not put forth sufficient evidence to find that she relied upon “affirmative conduct or actual statement” that she was free to drive. The jury found her guilty and her conviction was upheld on appeal to the district court.
First, the Court laid out the four elements needed in order to prove entrapment by estoppel: (1) The defendant acted in good faith before taking action; (2) an authorized government official, acting with actual or apparent authority and who had been made aware of all relevant historical facts, affirmatively told the defendant that his or her conduct was legal; (3) the defendant actually relied on the statements of the government official; and (4) such reliance was reasonable. State v. Edwards, 286 Neb. 404 (2013).
Planck alleged that the court issuing her a work permit, and returning her license following the impoundment period was a sufficient affirmative act on behalf of an authorized state agency. The Court disagreed saying that the work permit and return of her license was not an affirmative statement from a government official allowing her to drive and thus, the county court did not err by refusing to give an instruction on entrapment by estoppel.
On the issue of whether a defendant can assert a defense of entrapment by estoppel when a county court issues a work driving permit and returns an impounded operator’s license, but the license is still under DMV revocation, the Court held that those two events alone are not affirmative statements for the purposes of asserting the defense. Conviction affirmed.
State v. Payne, 289 Neb. 467, November 14, 2014
Issues on Appeal:
That the trial court erred by (1) Denying Payne’s motion for post-conviction relief; and (2) Failing to find merit in Payne’s allegations using plain error review.
Payne pled no contest to first degree sexual assault on a child and was sentenced to 40 to 50 years in prison. He did not file a direct appeal but did file a motion for post-conviction relief alleging several instances of ineffective assistance of counsel. His motion was denied by the District Court as procedurally barred.
The Court first noted that the motion was procedurally barred because a defendant cannot seek post-conviction review of issues that should have been brought on direct appeal. Trial counsel is not expected to raise ineffective assistance of counsel on himself, however, so if trial counsel has not been granted leave to withdraw prior to the appeal period, post-conviction relief may be first opportunity for the defendant to claim ineffective assistance of counsel. In this case, trial counsel had not withdrawn and was still engaged during the appeal period. Thus, Payne’s claims were not procedurally barred.
The Court held that if trial counsel also handles the defendant’s appeal, counsel is not expected to assert ineffective assistance of counsel against himself. In such a case, a claim of ineffective assistance of counsel brought for the first time in a motion for post-conviction relief is not procedurally barred. Reversed and remanded.
City of Beatrice v. Meints, 289 Neb. 558, December 5, 2014
Issues on Appeal:
Meints alleges that the Court of Appeals erred in holding that probable cause alone is a sufficient exception to the warrant requirement.
Meints owned an uninhabited, unfenced lot in Beatrice on which, he kept several unregistered motorcycles and automobiles, a violation of Beatrice City Code § 16-623. In 2011, a Beatrice police officer, citing probable cause to believe that Meints was violating § 16-623, entered Meints’ property and recorded vehicle VIN numbers. Meints was eventually convicted of twelve violations of § 16-623. The Court of Appeals held that Nebraska’s exceptions to the warrant requirement include searches made with probable cause.
The Court first holds that while probable cause alone can be sufficient for a warrantless search in some circumstances, such as plain view, plain feel, or when an automobile is suspected to contain contraband, it is not sufficient for a warrantless search of real property.
Whether or not a warrantless search falls under a recognized exception becomes a moot point, however, if no search occurred. The Court then examined whether Meints’ lot was an “open field” in which he had a reasonable expectation of privacy. Holding that Meints did not have such an expectation, the Court noted that there was no house, enclosed building, or fencing on the property and that all sorts of vehicles and other odd objects were strewn about the lot. Anybody standing on adjacent properties or on the road near the proper could clearly see what was on the lot, including the unregistered vehicles. Moreover, the Court noted that Meints could not reasonably expect a “no trespassing” sign on the property to prevent intrusions onto the lot nor did he take any further steps to prevent access to the lot. Finally, the Court stated that observing the vehicles was not a “search” and that recording VIN numbers was not a “seizure”. Conclusion:
On the issue of whether probable cause alone is an exception to the warrant requirement, the Court held that as it pertains to real property, probable cause alone is not an exception. On the issue of whether there was a search, the Court held that there was not a search because the unenclosed, open urban lot fell under the open fields doctrine. Conviction affirmed.
State v. Draper, 289 Neb. 777, January 9, 2015
Issues on Appeal:
Draper made several assignments of error, the majority of which centered around the defendant’s wife invoking her Fifth Amendment privilege against self-incrimination, the State’s questioning of her, and the trial court refusing to admonish or give an instruction to the jury telling them to disregard her testimony.
Draper was convicted of intentional child abuse resulting in death and intentional child abuse resulting in serious bodily injury and sentenced to sixty years to life on the child abuse resulting in death and forty-nine to fifty years on the child abuse resulting in serious bodily injury. During trial, the State intended to call Nancy, Draper’s wife, despite having been made aware that Nancy intended to exercise her right against self-incrimination. Immediately prior to Nancy’s testimony, Draper’s counsel reiterated to the court that Nancy would be invoking her Fifth Amendment privilege and argued that due to the potential prejudice that could result, the jury should be not allowed to hear her invoke the privilege. The State then informed the court that it would offer Nancy immunity but in order to accept it, she would have to invoke the privilege in the presence of the jury. Draper’s objection was overruled and the State was allowed to call Nancy. She then invoked her privilege and was offered immunity but still refused to testify. The court granted the State permission to treat her as a hostile witness and during the subsequent leading questioning, the State read basically the entire inculpatory statements made by Draper to Nancy. In response, Draper asked the court to admonish the jury to disregard what the prosecutor asked Nancy during questioning; a request that was not granted.
At the close of evidence, Draper asked the court to instruct the jury to disregard testimony given by Nancy. This request was denied and the jury found Draper guilty on both counts.
The Court first examined Draper’s claim that the trial court erred when it permitted Nancy to assert her privilege against self-incrimination in front of the jury. The Court disagreed, holding that Neb. Rev. Stat. § 27-513(2) requires an invocation of the privilege be made outside the jury, unless “extraordinary circumstances” dictate otherwise
Next, the court examined Draper’s second assignment of error: the trial court violated Draper’s right to confront Nancy when it failed to allow Draper to cross-examine her. Nancy refused to testify and as such, there was no basis for any cross-examination. That, coupled with the fact that the inculpatory statements were read aloud by the prosecutor during direct examination, led the Court to hold that the trial court erred in allowing the State to use leading questions in its direct examination of Nancy.
Finally, the Court addressed Draper’s claim that the trial court erred by not instructing the jury to not draw any inferences from Nancy’s invocation of her privilege against self-incrimination. The Court noted that the trial court could have minimized any prejudice to Draper by either admonishing the jury or giving the jury a curative instruction pursuant to § 27-513(3), which states that “upon a request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.” In failing to do so, the trial court erred.
After finding that the Nancy’s testimony, and the trial court’s failure to admonish or instruct the jury to disregard Nancy’s invocation of the privilege against self-incrimination was in error, the Court then determined that because the statements read during Nancy’s direct-examination were directly linked to Draper’s culpability, the inferences stemming from these errors added “critical weight” to the State’s case against Draper. The errors in combination were enough for the Court to hold that it could not say the errors were harmless beyond a reasonable doubt.
On the issue of whether a trial court should allow a witness to invoke his or her privilege against self-incrimination, the Court held that absent “extraordinary circumstances”, such invocation should be done outside the presence of the jury. On the issue of whether a defendant’s right to cross-examine witnesses is violated when the witness does not provide any testimony on direct, and the prosecutor asks leading questions, the Court held that the right to cross-examine is violated. On the issue of whether a trial court should either admonish or instruct the jury to disregard a witnesses’ invocation of the right against self-incrimination, the Court held that the trial court should do so. In order for a new trial to be warranted, however, errors on behalf of the trial court must not be harmless. In this case, the errors were not. Reversed and remanded.