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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for January 4, 2008

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NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Criminal Law, Appeal and Error, Sufficiency
Criminal Law, Sentencing, Excessive Sentence
Criminal Law, Sentencing, Excessively Lenient Sentence
Insurance, Legal Malpractice, Exclusions
Postconviction, Ineffective Assistance of Counsel, Prejudice

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January 31, 2008 - NCLE LUNCH & LEARN: Exploring the Attitudes of LGBTQ Youth in Foster Care (12 PM - 1 PM, cost is $10)
February 5, 2008 - NCLE Teleseminar: Immigration Law for General and Transactional Counsel, Part 1, Noon CST.
February 6, 2008 - NCLE Teleseminar: Immigration Law for General and Transactional Counsel, Part 2, Noon CST
February 8, 2008 - NCLE Seminar: LB 554 Training in North Platte
Information & Registration Form
February 12, 2008 - NCLE Teleseminar: Family Law: Estate and Tax Guide to Divorce
Noon CST.
February 21, 2008 - NCLE Teleseminar: Prudent Trustees: Duties and Liability
Noon CST.
February 26, 2008 - NCLE Teleseminar: Ethics in Litigation, Part 1, Noon CST.
February 27, 2008 - NCLE Teleseminar: Ethics in Litigation, Part 2, Noon CST.
March 14, 2008 - NCLE Estate Planning and Probate Seminar
Information and Registration Form
Agenda

For more information about LUNCH & LEARN SEMINARS, TELESEMINARS and LIVE WEBCASTS and to register contact Kathryn Bellman.

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Case Summaries

Criminal Law, Appeal and Error, Sufficiency

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In this decision, the Nebraska Supreme Court affirms a conviction and sentence handed out for first degree assault and false imprisonment

State v. Pieper, 274 Neb. 768 (2008)

Supreme Court Headnotes

Criminal Law:

1. Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.

2. Pretrial Procedure. Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or a court rule.

Statutes:

1. Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

Constitutional Law:

1. Statutes: Appeal and Error. The constitutionality of a statute is a question of law, regarding which the Nebraska Supreme court is obligated to reach a conclusion independent of the determination reached by the trial court.

Sentences:

1. Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

Evidence:

1. Waiver: Appeal and Error. A party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.

Appeal and Error.

1. When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.

Motions for New Trial:

1. Effectiveness of Counsel. Ineffective assistance of counsel is not a ground upon which a defendant may move for new trial under Neb. rev. Stat. § 29-2101 (cum. Supp. 2006).

Double Jeopardy:

1. Habitual Criminals: Sentences. Nebraska’s habitual criminal statute, Neb. rev. Stat. § 29-2221 (cum. Supp. 2006), does not violate the Double Jeopardy clause because an enhanced sentence under the provisions of the habitual criminal laws is not a new jeopardy or additional penalty for the same crime. It is simply a stiffened penalty for the latest crime which is considered to be an aggravated offense because it is a repetitive one.

Date Filed and Case No.: January 4, 2008. No. S-07-057.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan4/s07-057.pdf

Court Appealed From: District court for Lancaster county: Karen Flowers, Judge.

Attorneys for the Appeal: Jessica L. Milburn for John Pieper, appellant. Jon Bruning and Kimberly A. Klein for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Miller-Lerman, J.

Summary: John Pieper was convicted of first degree assault and false imprisonment in the first degree. Pieper appealed his convictions and his sentencing as a habitual criminal to the Nebraska Supreme Court.

Did the district court err in overruling Pieper’s motion for new trial because it said the prosecution did not have an obligation to disclose a nonexculpatory pretrial conversation with a witness? Pieper asserted that the State failed to timely disclose to the defense the a police officer’s February 22, 2006, conversation with a codefendant, Jeremiah Croghan. The Court determined that the State had no obligation to disclose the conversation in this case and that therefore, the court did not abuse its discretion when it did not grant a new trial on such basis. Under Brady v. Maryland, 373 U.S. 83, 83 S. ct. 1194, 10 L. ed. 2d 215 (1963), due process requires the State to disclose exculpatory evidence to a defendant. However, the State is not under a constitutional duty to disclose all information that might affect the jury’s verdict and discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or a court rule. At issue here is Croghan’s verbal statement to a police officer that he intended to testify in a manner unfavorable to Pieper. The Court found that such statement was not exculpatory to Pieper and they determined that neither the statute nor the court’s discovery order supported Pieper’s claim. Pieper’s motion for discovery did not specifically request the type of police witness inquiry at issue here. Given the discovery request and the court’s discovery order (which granted discovery to the extent allowed by statute) the State was not obligated to disclose its conversation with a witness in preparation for trial. With respect to the timeliness of the production of the officer’s report, the Court noted that the written report was not prepared until the second day of trial and that the State provided the report to the defense the next day, prior to Croghan’s testimony at trial. Pieper did not move for a continuance. “We determine that given the discovery request, the discovery order, the discovery statutes, and Pieper’s knowledge that Croghan had already given conflicting versions of events, the State was not obligated to provide to the defense its understanding of the officer’s February 22, 2006, conversation with Croghan” said the Court. “We therefore conclude that the court did not abuse its discretion by overruling Pieper’s motion for new trial on this basis”

Did the trial court err in admitting tape recordings and transcriptions of tape recordings of police interviews with the victims, Vernon French and A.N.? A tape recording of a police interview with French and the transcription of a tape recording of another police interview with French were admitted into evidence. (The tape recording was not played to the jury, and the transcription was not read to the jury.) There is no indication in the record that the A.N. tape recording was offered or admitted into evidence. Here the Court concluded that because Pieper failed to object to admission of these items, he failed to preserve this issue for appeal.

Did the trial court err in overruling Pieper’s motion for new trial in which, through substitute counsel and that his initial trial counsel had provided ineffective assistance? The State argues that ineffective assistance of counsel is not a proper statutory ground for a motion for new trial. The Court agreed with the State and concluded that the court did not err in overruling the motion for new trial on such basis. The Court spelled out the statute regarding a motion for new trial and said they believed that in addition to the fact that a claim of ineffective counsel is not an enumerated basis for a new trial motion under Neb. Rev. Stat. § 29-2101. Due to the absence of a record relating to issues such as defense counsel’s trial strategy, they said that a separate evidentiary hearing would be required on the ineffectiveness claim, thus postponing entry of judgment. Because ineffective assistance of counsel is not a proper ground for a motion for new trial the Court concluded that the court did not abuse its discretion by overruling the motion for new trial on such basis.

Does Nebraska’s habitual criminal statute violate the Double Jeopardy Clause?

The Court concluded that the trial court did not err in rejecting Pieper’s assertion. In raising the constitutional challenge to the habitual criminal statute at the enhancement hearing, Pieper’s counsel acknowledged that the challenge was made “notwithstanding Nebraska Supreme court precedent stating double jeopardy principles do not apply.” The Court said that Pieper made no new argument that would cause them to reconsider its precedent and the district court therefore did not err in rejecting Pieper’s constitutional challenge to the habitual criminal statute.

Did the district court did not impose excessive sentences? Here, the Court said the sentences were within statutory limits, and they concluded that the court did not abuse its discretion in the sentences it imposed.

Conclusion: Having considered and rejected each of Pieper’s assignments of error, the Nebraska Supreme Court affirmed his convictions and sentences for first degree assault and false imprisonment in the first degree. AFFIRMED.

Criminal Law, Sentencing, Excessive Sentence

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This, a case arising from the same crimes in State v. Reid, post p. 780, 785, ___ N. W.2d ___, ___ (2007), the Nebraska Supreme Court affirms a sentence of two consecutive life sentences for two second degree murders and 10-20 years for use of a firearm to commit a felony, all to be served consecutive, which occurred when a rural home was burglarized at night and the occupants were shot and killed.

State v. Fester, 274 Neb. 786 (2008)

Supreme Court Headnotes

Sentences:

1. When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. ••• In considering a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically applied set of factors. ••• The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all facts and circumstances surrounding the crime and the defendant’s life.

2. Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

Date Filed and Case No.: January 4, 2008. No. S-07-336.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan4/s07-336.pdf

Court Appealed From: District Court for Cass County: Randall L. Rehmeier, Judge.

Attorneys for the Appeal: Alan G. Stoler for Gregory D. Fester II., appellant. Jon Bruning, George R. Love and Andy Maca, Senior certified Law Student, for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Gerrard, J.

Summary: Gregory D. Fester II and his girlfriend, Jessica Reid left their apartment in Wisconsin on April 15, 2006, and arrived in Nebraska on April 17. Along the way, Fester and Reid participated in a crime spree that involved, among other things, stealing two cars and burning another, breaking into several homes, and stealing a 12 gauge shotgun and ammunition. On the night of April 17, 2006, Fester and Reid arrived in Murdock, Nebraska, and, armed with a 12 gauge shotgun and a .410 shotgun, broke into the home of the Wayne and Sharmon Stock with the intent to burglarize the home. The Stocks’ home had been randomly selected. After entering the house, Fester heard snoring coming from upstairs. Fester and Reid went up the stairs and Wayne attempted to confront Fester and Reid, and Fester fired a shot that hit Wayne in the knee. While Fester and Wayne fought over the weapon, Fester told Reid to “do something,” and Reid fired her .410 shotgun at Wayne. Fester then shot Wayne in the back of the head with his shotgun, killing him. Then, Fester entered the bedroom and shot Sharmon Stock in the face, killing her. Pursuant to a plea agreement, Fester pled guilty to two counts of second degree murder and one count of use of a firearm in the commission of a felony. The presentence investigation report revealed that Fester was 19 years of age at the time the Stocks were killed and that at the time of sentencing, he had a 2-year-old child. Fester had a lengthy history of substance abuse, including the use of alcohol, marijuana, cocaine, heroin, and dextromethorphan. Fester also had an extensive history of criminal activity which included, among other things, trespass to land, shoplifting, disorderly conduct, theft from a motor vehicle, criminal damage to property, and sexual assault. The presentence investigation report also revealed that during Fester’s life, he had been under various degrees of psychiatric care and had taken a variety of psychotropic medications. Fester was sentenced to a term of not less than life imprisonment nor more than life imprisonment for each count of murder in the second degree, and a term of 10 to 20 years’ imprisonment for use of a firearm to commit a felony. The sentences were to be served consecutively. Fester appealed claiming the sentences were excessive.

Did the district court err in imposing excessive sentences? Fester was convicted of two counts of second degree murder and one count of use of a firearm to commit a felony and the Nebraska Supreme Court ruled that the sentences imposed on Fester were within the statutory limits. Fester nonetheless argued that his sentences were excessive claiming that the district court failed to properly consider, as a mitigating factor, his acceptance of responsibility for the crime and his admission of guilt. Fester also claims that the court erred in failing to adequately weigh certain mitigating circumstances including his age, his history of mental illness, his use of drugs before the commission of the crime, and the fact that he has a 2-year-old child. The Court said the presentence investigation report revealed that Fester has an extensive criminal record, a significant history of drug use and distribution, and a history of violence. The record also plainly established that the killing of the Stocks was depraved, violent, and senseless. In discussing the killings, Fester admitted to the presentence investigative probation officer that he and Reid “really didn’t need any money, we were just there for the thrill I guess.” At sentencing, the district court considered both the mitigating and aggravating factors and explained that Fester’s “possibility of rehabilitation is remote and is far outweighed in this case by the necessity and need for the protection of society.” The Nebraska Supreme Court agreed writing in the opinion that “[w]ithout provocation or justification, two innocent people were callously murdered in the solitude and sanctity of their own home. Any lesser sentence under these circumstances, even when considering the mitigating factors urged by Fester, would diminish the seriousness of this crime and promote disrespect for the law.”

Conclusion: Having reviewed the record and considering Fester’s arguments the Court said that based on its review of the record, and the reasoning set out in the opinion, they concluded that the district court did not abuse its discretion in sentencing Fester. AFFIRMED.

In this decision, the Nebraska Supreme Court affirms a conviction and sentence handed out for first degree assault and false imprisonment

State v. Pieper, 274 Neb. 768 (2008)

Supreme Court Headnotes

Criminal Law:

2. Pretrial Procedure. Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or a court rule.

Statutes:

Constitutional Law:

Sentences:

1. Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

Evidence:

1. Waiver: Appeal and Error. A party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.

Appeal and Error.

Motions for New Trial:

1. Effectiveness of Counsel. Ineffective assistance of counsel is not a ground upon which a defendant may move for new trial under Neb. rev. Stat. § 29-2101 (cum. Supp. 2006).

Double Jeopardy:

Date Filed and Case No.: January 4, 2008. No. S-07-057.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan4/s07-057.pdf

Court Appealed From: District court for Lancaster county: Karen Flowers, Judge.

Attorneys for the Appeal: Jessica L. Milburn for John Pieper, appellant. Jon Bruning and Kimberly A. Klein for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Miller-Lerman, J.

Does Nebraska’s habitual criminal statute violate the Double Jeopardy Clause?

In this, a case arising from the same crimes in State v. Fester, post p. 786, 789, ___ N. W.2d ___, ___ (2007), the Nebraska Supreme Court affirms a sentence of two consecutive life sentences for two second degree murders which occurred when a rural home was burglarized at night and the occupants were shot and killed.

State v. Reid, 274 Neb. 780 (2008)

Supreme Court Headnotes

Sentences.

1. When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime. ••• In imposing a sentence, the sentencing court is not limited to any mathematically applied set of factors. ••• The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.

2. Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

Judgments:

1. Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

Date Filed and Case No.: January 4, 2008. No. S-07-303.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan4/s07-303.pdf

Court Appealed From: District Court for Cass County: Randall L. Rehmeier, Judge.

Attorneys for the Appeal: Thomas J. Olsen for Jessica M. Reid , appellant. Jon Bruning, George R. Love and Andy Maca, Senior certified Law Student, for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Connolly, J.

Summary: Jessica Reid and her codefendant and boyfriend, Gregory D. Fester II, left Wisconsin. on April 15, 2006. After stealing and abandoning two vehicles, they stole money, a 12 gauge shotgun, ammunition, and another vehicle from a Wisconsin home. They then drove to Iowa, planning to rob a few houses on their way to Arizona. They broke into two more houses in Iowa, vandalizing, stealing a .410 shotgun and ammunition and $300. Later that night, they decided to burglarize the rural home of Wayne and Sharmon Stock in Cass county, Nebraska. The two broke into the Stock’s home in the evening, awoke them, shot Wayne in the leg while he was getting out of bed and while Wayne and Fester struggled over the 12 gauge shotgun, Reid shot Wayne with the .410 shotgun. Jessica stated that Wayne looked her directly in the eyes and that she then pulled the trigger. After Wayne fell, Fester jumped over his body and shot him in the back of the head with the 12 gauge shotgun and then shot Sharmon Stock in the face. After the two were arrested, during the investigation, law enforcement officers recovered evidence from Reid’s home. Five days after the murders, Reid wrote in her journal: “I killed someone. he was older. I loved it. I wish I could do it all the time. If [Fester] doesn’t watch it I am going to just leave one day and go do it myself.” Also, at some point while Fester was in jail, Reid wrote a letter to him in a cigarette box, which also contained a spent 12 gauge shell casing from the murders. In the letter, she wrote: “And this bullet well bunny it’s the only thing left. And I loved it, but that’s something we will talk about one day. but it’s here also bcuz [sic] that was something I did for you, me and for you to love me as much as I love you.” Under a plea agreement, Reid pled guilty to two counts of second degree murder. The district court sentenced Reid to not less than life imprisonment nor more than life imprisonment for each murder. The court ordered Reid to serve the sentences consecutively. Reid appeals, assigning that her sentences are excessive.

Was the sentence imposed, excessive? The Nebraska Supreme Court found that the district court’s sentences were within the statutory limits. Reid contended that the district court abused its discretion because she did not have a history of serious criminal conduct and because Fester committed the two murders. She argues that her culpability for the murders was much less than Fester’s, yet she was not given any credit for cooperating with law enforcement or for making statements that exonerated two other suspects. Finally, she argued that although the district court emphasized her letter to Fester and journal entry, she argued that she has since changed and shown great remorse over her involvement in the murders. The Court said that the presentence report revealed that Reid was 17 years old at the time the Stocks were murdered and had dropped out of school in the 10th grade. She had been an honor roll student before her mother and stepfather separated when she was about 13. Over the next 2 years, she attended several new schools. She began using drugs and staying away from home for extended periods and missing a substantial amount of school. In 2004, she was placed on juvenile probation for theft. The Wisconsin Department of Social Services placed her in detention twice and because of the violations she was placed in the juvenile intensive sanctions program. Between June 2005 and February 2006, authorities placed her in custody six times for violations of the program, including theft, criminal damage to property, and possession of drug paraphernalia. She did not comply with drug and alcohol treatment services or pay restitution. Her juvenile caseworker described her as “extremely dishonest when dealing with anybody in authority” and intent on disregarding restrictions and sanctions. A probation officer assessed she was a high risk for rearrest. In Cass county, the sentencing court recognized Reid’s age, that she was of “normal to above average intelligence” but had dropped out of school because of drug use and her involvement with “the wrong crowd.” The sentencing court further found that her history of drug use was a contributing factor in the crime. While the court recognized that her trouble with the law began around the time that her mother and stepfather divorced, the court concluded that her role in the Stocks’ deaths was significant. The court stated that if Reid had not intervened when Wayne was struggling with Fester over the gun, it was possible neither death would have occurred. Reid’s journal and letter troubled the court. The Nebraska Supreme Court included in its opinion, the trial court’s comments from the bench about the callousness of the crime and Jennifer’s journal and letter to Fester which were found afterwards. The district court concluded by stating “Any lesser sentence under these circumstances, even when considering the mitigating factors. . . would diminish the seriousness of this crime and promote disrespect for the law.”

Conclusion: The Nebraska Supreme Court ruled that the district court did not err in sentencing Reid to two consecutive life sentences. AFFIRMED.

Criminal Law, Sentencing, Excessively Lenient Sentence

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Here, the Nebraska Supreme Court finds that a sentence imposed for two second degree murders and two counts of use of a firearm to commit a felony were excessively lenient and the sentences were vacated with directions to impose greater punishment under a different judge.

State v. Moore, 274 Neb. 790 (2007)

Supreme Court Headnotes

Sentences.

1. A sentencing court is not limited in its discretion to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. but there also must be some reasonable factual basis for imposing a particular sentence.

2. Appeal and Error. Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court’s discretion. ••• When the State challenges a sentence as excessively lenient, the appellate court should consider (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed (a) to afford adequate deterrence to criminal conduct, (b) to protect the public from further crimes of the defendant, (c) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (4) any other matters appearing in the record which the appellate court deems pertinent.

Judges:

1. Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.

Date Filed and Case No.: January 4, 2008. No. S-07-370.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan4/s07-370.pdf

Court Appealed From: District Court for Douglas County: Joseph S. Toia, Judge.

Attorneys for the Appeal: Donald W. Keine and Jennifer Meckna for State of Nebraska, appellant. Thomas C. Riley and Scott C. Sladek for Terrence D . Moore, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Miller-Lerman, J.

Summary: In the early morning hours of February 25, 2005, Terrence D. Moore, angry over events that had occurred the previous day went to the apartment of Terry Jasper and Diane Caveye. According to Moore, Jasper had “punked” him by failing to pay approximately $30 that he owed Moore for drugs. Moore was armed with a 9mm-handgun. An argument ensued Moore shot Jasper twice as Jasper was sitting in a chair and a third shot was fired into Jasper’s back after he fell to the ground. Caveye who was lying on a couch with a blanket over herself was shot three times after Jasper was shot. Jasper’s nephew, Jackie Payne, was present at the apartment and witnessed the shootings. Jasper and Caveye died from the gunshot wounds. Moore claimed he fired the third shot as Japer and the three shots at Cavey because he feared they would tell someone that he had shot Jasper. Moore was originally charged with two counts of first degree murder and two counts of use of a firearm to commit a felony however pursuant to a plea agreement, Moore pled guilty to two counts of second degree murder and two counts of use of a firearm to commit a felony. Moore was originally sentenced on May 23, 2006. Moore appealed to the Nebraska Supreme Court on the basis that the written order of commitment contained sentencing terms inconsistent with the sentence imposed by the court’s oral pronouncement. In a memorandum opinion the Court vacated the sentences and remanded the cause for resentencing as the district court erred when it ordered that the sentence for at least one of the firearm counts be served concurrently to one of the sentences for second degree murder. Upon remand, Moore was resentenced to imprisonment for 30 to 45 years on each count of second degree murder and for 10 to 10 years on each firearm count. The two sentences for second degree murder were ordered to be served concurrently to one another, and the two sentences for the firearm counts were ordered to be served consecutively to one another and to each of the sentences for second degree murder. The State appealed the sentences as excessively lenient.

Did the district court abuse its discretion by imposing excessively lenient sentences? The Nebraska Supreme Court wrote that although Moore’s sentences were within statutory limits, they determined that the trial court abused its discretion by imposing excessively lenient sentences. Here, Moore killed one person because he was angry over an unpaid drug debt of approximately $30 and killed a second person in order to prevent her from being a witness to the first killing. The Court noted that Moore’s guilty plea resulted from an agreement which reduced the homicide charges to second degree murder from the original charges of first degree murder, a class IA felony punishable by imprisonment for life without parole, or a class I felony punishable by death. Moore admitted that he killed both Jasper and Caveye in the same incident and that he shot Caveye in order to prevent her from telling anyone that he had shot Jasper. “Were this a first degree murder case, we note that under Neb. Rev. Stat. § 29-2523 (cum. Supp. 2006), among the aggravating circumstances that would make a defendant eligible for the death penalty” the Court wrote “were that ‘[a]t the time the murder was committed, the offender also committed another murder’ and that the ‘murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of such crime.’” Here, because two circumstances were present in this case which are comparable to first degree aggravators, the Court said it was clear that Moore’s crimes were of the type that the Legislature has deemed to be the most serious in this state. While Moore pointed to a number of factors indicating that his sentences were not excessively lenient the Court did not agree. They concluded that considering the facts and the nature of the offenses committed by Moore, the sentences given in this case did not adequately reflect the seriousness of the offenses, did not promote respect for the law, and did not provide just punishment.

Conclusion: Considering the very serious nature of the offenses committed by Moore, the Court concluded that the district court abused its discretion by imposing excessively lenient sentences. Following Neb. Rev. Stat. § 29-2323 (reissue 1995) they vacated the sentences and remanded the cause to the district court with instructions to impose greater sentences. The sentences were to be imposed by a different district court judge rather than the original sentencing judge. SENTENCES VACATED, AND CAUSE REMANDED WITH DIRECTIONS.

Insurance, Legal Malpractice, Exclusions

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The Nebraska Supreme Court here determines that a legal malpractice insurance policy had certain, unambiguous exclusions from coverage for criminal, dishonest, fraudulent or malicious acts, errors or omissions committed by the insured. Thus, two clients having a judgement for legal malpractice against a lawyer who had engaged in such acts were not allowed to garnish their judgments from the insurance company.

Fokken v. Steichen, 274 Neb. 743 (2008)

Supreme Court Headnotes

Summary Judgment.

1. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Insurance:

1. Contracts. The interpretation of an insurance policy is a question of law. ••• An insurance policy is a contract between an insurance company and an insured, and as such, the insurance company has the right to limit its liability by including limitations in the policy definitions. If the definitions in the policy are clearly stated and unambiguous, the insurance company is entitled to have such terms enforced. ••• Insurance contracts, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used. If the terms of the contract are clear and unambiguous, they are to be taken and understood in their plain, ordinary, and popular sense. ••• An ambiguity exists in an insurance contract only when the policy can be interpreted to have two or more reasonable meanings. ••• The language of an insurance policy should be read to avoid ambiguities, if possible, and the language should not be tortured to create them.

a. Proof. The burden to prove that an exclusionary clause in a policy applies rests on the insurer.

Judgments:

1. Appeal and Error. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

2. Debtors and Creditors: Garnishment. The claim of a judgment creditor garnishor against a garnishee can rise no higher than the claim of the garnishor’s judgment debtor against the garnishee.

Appeal and Error.

1. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.

Date Filed and Case No.: January 4, 2008. Nos. S-06-614, S-06-615.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan4/s06-614.pdf

Court Appealed From: District court for Douglas county: Marlon a. Polk, Judge.

Attorneys for the Appeal: Gerald L. Friedrichsen, Joshua W. Weir, Jeffrey A. Goldwater, Michelle M. Bracke, and Robert A. Chaney for Coregi S Insurance Company, Inc., garnishee-appellant. James E. Harris, Britany S. Shotkoski, and Michaela Skogerboe for Maurice Fokken and John P. Steichen, appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: McCormack, J.

Summary: In June 1989, Deanna Wright Miller was involved in a motor vehicle accident ultimately represented by John P. Steichen in litigation related to that accident. In January 1999, Miller filed a professional liability action against Steichen. After a trial, the district court entered a judgment in favor of Miller in the amount of $325,000, which the court concluded was the fair and reasonable settlement value or jury verdict of Miller's claim had it been prosecuted in the absence of professional negligence. The court explained that Miller alleged that the following acts by Steichen constituted legal malpractice: (1) his failure to communicate to Miller all settlement offers, (2) his acceptance of a settlement offer on Miller's behalf without Miller's approval or consent, (3) his placement of Miller's signature on a release and his endorsement of the settlement check without Miller's consent, (4) his allowance of the dismissal of Miller's lawsuit with prejudice after the statute of limitations had expired, and (5) his breach of professional and fiduciary duties to act in the best interests of his client. Maurice Fokken was involved in a motor vehicle accident in December 1991 Steichen was retained to represent him in the litigation pertaining to that accident. In December 1997, Fokken filed a professional liability action against Steichen. The district court granted summary judgment in favor of Fokken on the issue of liability and on the issue of damages against Steichen. The court entered judgment against Steichen in the amount of $50,000 (which amount included $10,000 in attorney fees.) The court explained that Fokken alleged that the following acts by Steichen constituted legal malpractice: (1) his failure to communicate with Fokken all settlement offers, (2) his acceptance of a settlement offer on Fokken’s behalf without approval or consent by Fokken, (3) his allowance of Fokken’s lawsuit to be dismissed with prejudice after the statute of limitations had expired, and (4) his breach of his professional fiduciary duty to act in Fokken’s best interest. Fokken and Miller (collectively the appellees) then instituted separate garnishment proceedings against Coregis Insurance Company, Inc. (Coregis). Coregis had issued Steichen’s law firm a lawyers professional liability insurance policy (the policy) which the appellees alleged provided coverage for their claims against Steichen. After consolidating the appellees’ cases, the district court entered summary judgment in favor of the appellees and against Coregis. In an amended final order, the court awarded postjudgment interest in favor of the appellees from the date judgment was entered against Steichen in the appellees’ separate legal malpractice claims. In this appeal to the Nebraska Supreme Court, Coregis contended that it is not obligated to indemnify Steichen. Coregis further contended that postjudgment interest should not have been entered as of the date judgments were entered against Steichen and that additional attorney fees should not have been awarded to the appellees.

Did the district court err in denying Caregis’ motion for summary judgment and in granting the appellees’ motion for summary judgment? Coregis asserted that summary judgment should have been entered in its favor because exclusions A and L of the policy precluded coverage for the appellees’ claims. Exclusion A of the policy provides that the policy does not apply to “any claim that results in a final adjudication against any insured that an insured has committed any criminal, dishonest, fraudulent or malicious acts, errors, omissions or personal injuries.” Exclusion L of the policy provides that the policy does not apply to “any claim arising out of conversion, misappropriation or improper commingling of funds.” The Supreme Court wrote that the question presented here is whether the appellees’ claims arise out of conversion, misappropriation, or the improper commingling of funds. The appellees argued that although Steichen may have committed acts of conversion, misappropriation, and/or the commingling of funds, these acts were not the proximate cause of the appellees’ damages. Looking to prior case law, the Court said that proximate cause does not require more than the existence of a causal connection between the claim and any alleged conversion, misappropriation, or improper commingling of funds by Steichen. Here, there was such a causal connection and the Court found that the exclusion under exclusion L prevented the policy from covering a portion of the judgments. Further, because the district court in both Fokken’s and Miller’s cases adjudicated Steichen of committing those dishonest acts, coverage was also precluded under exclusion A of the policy for the remaining balance of the appellees’ judgments against Steichen.

Conclusion: The Court determined that the district court erred in granting the appellees’ motion for summary judgment and in denying Coregis’ motion for summary judgment. Accordingly, they reversed, and remanded with directions to the district court to grant Coregis’ motion for summary judgment. REVERSED AND REMANDED WITH DIRECTIONS.

Postconviction, Ineffective Assistance of Counsel, Prejudice

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This postconviction case, based upon effectiveness of counsel, where the district court denied the claim was affirmed by the Nebraska Supreme Court. Here, while the Court found that counsel had been ineffective in two respects (conveying a plea offer and not objecting to a Doyle violation) it also found that defendant did not show that she was prejudiced by counsel’s ineffectiveness.

State v. Lopez, 274 Neb. 756 (2008)

Supreme Court Headnotes

Effectiveness of Counsel:

1. Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two- pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. ct. 2052, 80 L. ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court’s decision. ••• When reviewing a claim of ineffective assistance of counsel, an appellate court will not second- guess reasonable strategic decisions by counsel.

2. Pleas: Plea Bargains. The standard established under Strickland v. Washington, 466 U.S. 668, 104 S. ct. 2052, 80 L. ed. 2d 674 (1984), applies to guilty pleas based on ineffective assistance of counsel and in cases involving the alleged failure to communicate the offer of a plea agreement.

3. Presumptions. In determining whether a trial counsel’s performance was deficient, there is a strong presumption that such counsel acted reasonably.

4. Plea Bargains. In order to establish prejudice in a case in which a plea agreement was not communicated to the defendant, the defendant must demonstrate a reasonable probability that, but for counsel’s deficiency, he or she would have accepted the plea.

Postconviction:

1. Effectiveness of Counsel: Proof: Appeal and Error. In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel at trial or on direct appeal, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S. ct. 2052, 80 L. ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is, counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case. In order to show prejudice, a defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. The two prongs of this test, deficient performance and prejudice, may be addressed in either order.

Date Filed and Case No.: January 4, 2008. No. S-06-1251.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/january/jan4/s06-1251.pdf

Court Appealed From: District Court for Hall county: James Livingston, Judge.

Attorneys for the Appeal: James R. Mowbray and Robert W. Kortus for Norma E. Lopez, appellant. Jon Bruning and Erin E. Leuenberger for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Heavican, C.J.

Summary: Norma E. Lopez was convicted of first degree murder and use of a weapon to commit a felony and her convictions were affirmed in State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). Lopez filed a verified motion for postconviction relief which was denied after an evidentiary hearing. Lopez appealed to the Nebraska Supreme Court.

Did Lopez received ineffective assistance of trial counsel with respect to plea negotiations because a plea agreement for second degree murder was not communicated to her? At the postconviction evidentiary hearing, the parties stipulated that an offer of second degree murder and use of a weapon had been communicated to defense counsel prior to trial. In overruling Lopez’ motion with respect to the allegation that the offer had not been communicated to her, the district court, in keeping with this stipulation, found that Lopez’ trial counsel failed to convey that agreement to Lopez. However, the district court concluded that Lopez was not prejudiced by this failure, as Lopez had not demonstrated that she would have accepted the offer. As an initial matter, the Court concluded that the district court’s finding that Lopez’ counsel failed to communicate the plea agreement in question to Lopez was not clearly erroneous. They further concluded that such failure was deficient as a matter of law. However, they also agreed with the district court that Lopez had not demonstrated that she would have accepted the plea agreement for second degree murder. As such, Lopez could not show she was prejudiced by counsel’s failure to communicate the plea agreement. The Court wrote that the prejudice inquiry in cases involving plea agreements focused upon whether counsel’s ineffective performance affected the outcome of the plea process and various standards exist for determining whether a defendant has made a showing of prejudice. The Seventh Circuit, citing Strickland, requires a defendant to “establish through objective evidence that there is a reasonable probability that, but for counsel’s advice, he would have accepted the plea.” The Sixth Circuit largely concurs with the Seventh Circuit’s standard, except it notes that “Strickland . . . only requires that a defendant demonstrate that there is a ‘reasonable probability’ that the result of the proceeding would have been different.” The Nebraska Supreme Court concurred with the Sixth Circuit’s reading of Strickland and held that the defendant must demonstrate a “reasonable probability” that, but for counsel’s deficiency, he or she would have accepted the plea. They concluded, however, that Lopez cannot meet this standard. The district court found Lopez’ contention that she would have pled guilty to be not credible and the Court concluded that this finding of fact was not clearly erroneous. “Lopez did not meet her burden—she has not shown there was a reasonable probability that she would have accepted the second degree murder plea agreement offered by the State.”

Did the State improperly rely upon Lopez invocation of her right to remain silent and that her counsel was ineffective for failing to object accordingly? Lopez argued that the State’s actions violated Doyle v. Ohio, 426 U.S. 610, 96 S. ct. 2240, 49 L. ed. 2d 91 (1976) (the State may not “seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest.”) As an initial matter, the Nebraska Supreme Court disagreed that the State’s statements in closing were simply a proper comment on the evidence, the statement could be read as inviting the jury to speculate as to the reasons behind Lopez’ silence. The Court also disagreed with the State that the prosecutor’s comment in closing was not a Doyle violation, concluding that the State’s comments in closing were a violation of Doyle. However, assuming that Lopez’ counsel was deficient in failing to object to the State’s violation of Doyle, the Court ruled that Lopez still could not show a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. Here, evidence beyond a reasonable doubt was presented at trial showing that Lopez was guilty of first degree murder. Lopez had not shown that she was prejudiced by any deficiency by counsel in failing to object to any Doyle violation made by the State.

Conclusion: For the reasons set out in the opinion, the Court concluded that Lopez’ counsel was not ineffective and, accordingly, affirmed the district court’s denial of postconviction relief. AFFIRMED.