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 Nebraska
State Bar Association NE Law Express
for March 3, 2006
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Use
our Short Cuts to link to the area of today's
NE Law Express that interests you.
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Cases affecting
the following practice areas are summarized in today's NE Law Express:
- Actions,
Secured Property, Malpractice
- Appeal
and Error, 1st Degree Murder, Assistance of Counsel
- Appeal
and Error, 1st Degree Murder, Sentencing
- Appeal
and Error, 1st Degree Murder, Sufficiency of Evidence
- Appeal
and Error, Speedy Trial
- Attorney's
Lien
- Child
Support Guidelines, Part D, Depreciation
- Constitutional
Law, Referendum/Initiative, Amount of Signatures
- Guardianship/Conservatorship,
Appeal and Error, Final Order
- Guardianship/Conservatorship,
Discovery Motion
- Intervention,
Statutues
- Jurisdiction,
Final Order, Administrative Procedure Act
- Miranda
Warnings, Right to Counsel, Wavier
- Search
and Seizure, Probable Cause, Inevitable Discovery
Rules of Professional Conduct Adopted June 8,
2005
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These Bar Events
links give you information about upcoming programs and activities:
- Best Practices
Seminar Series - Complete
Schedule & Registration Information
- 3/24/06
- Best Practices Seminar - Using
an Expert in Business Valuation and Economic Loss Cases
- 3/24/06
- Trial Skills Seminar at UNL
- 3/28-31/06
- NMCA Family Mediation Training
- 3/31/06
- Construction Law at Malcolm
- 4/6/06
- Best Practices Seminar - Topic
TBA and Casemaker
- 4/18/06
- Best Practices Seminar -
The Art of Family Law: Because It Ain't No Science and DWI: 5
Things You Need to Know
- 4/21/06
- NATA Seminar at Quarry Oaks, Ashland
- 4/21/06
- NCLE CrewMidwest Commerical Real Estate Workshop at Qwest Center
Omaha
These links
provide you with information on existing Member
Benefits:
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| Case
Summaries |
| Actions,
Secured Property, Malpractice |
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In this legal
malpractice case, based upon an attorney’s not filing a continuation
of a financing statement, the Nebraska Supreme Court affirms the
trial court’s actions over plaintiff’s objections.
Borley
Storage & Transfer Co. v. Whitted, 271 Neb. 84 (2006)
Supreme
Court Headnotes
Rules of
Evidence:
- [Appeal
and Error.] A trial court's decision to admit habit evidence
based on opinion under Neb. Rev. Stat. § 27-406 (Reissue 1995)
is reviewed for an abuse of discretion.
- [Words
and Phrases.] Relevant evidence, as defined by Neb. Rev. Stat.
§ 27-401 (Reissue 1995), is that which tends to make the existence
of any fact of consequence more or less probable than it would be
without the evidence.
Jury Instructions:
- [Appeal
and Error.] In reviewing a claim of prejudice from instructions
given or refused, an appellate court must read the instructions
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by
the pleadings and evidence, there is no prejudicial error. •••
The general rule is that whenever applicable, the Nebraska Jury
Instructions are to be used.
Malpractice:
- [Attorney
and Client:] (Negligence: Proof: Proximate Cause: Damages.)
In civil legal malpractice actions, a plaintiff alleging attorney
negligence must prove three elements: (1) the attorney's employment,
(2) the attorney's neglect of a reasonable duty, and (3) that such
negligence resulted in and was the proximate cause of loss (damages)
to the client.
Pleadings:
- [Appeal
and Error.] As a general rule, an appellate court disposes of
a case on the theory presented in the district court.
Damages.
- Under the
doctrine of avoidable consequences, which is another name for the
failure to mitigate damages, a wronged party will be denied recovery
for such losses as could reasonably have been avoided, although
such party will be allowed to recover any loss, injury, or expense
incurred in reasonable efforts to minimize the injury. •••
A plaintiff's failure to take reasonable steps to mitigate damages
bars recovery, not in toto, but only for the damages which might
have been avoided by reasonable efforts.
Appeal and
Error.
- Errors that
are assigned but not argued will not be addressed by an appellate
court.
Date Filed
and Case No.: March 3, 2006. No. S-04-708.
Internet
Address: http://court.nol.org/opinions/2006/march/mar3/s04-708.htm
Court Appealed
From: District Court for Adams County: Stephen Illingworth,
Judge.
Attorneys
for the Appeal: John H. Marsh for Borley Storage and Transfer
Co., Inc., appellant. Bradley D. Holbrook for Warren R. Whitted,
Jr., appellee.
Justices:
Hendry, C.J., Wright, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Not Participating:
Connolly, J.
Authored
By: Stephan, J.
Summary:
This legal malpractice action is before this court for the second
time. In the first appearance, the Nebraska Supreme Court determined
that the district court erred in entering partial summary judgment
in favor of the plaintiff and therefore reversed and vacated the
judgment and remanded the cause for further proceedings. Borley
Storage & Transfer Co. v. Whitted, 265 Neb. 533, 657 N.W.2d
911 (2003). Following remand, the cause was tried to a jury.
On 12/10/82,
Borley Storage entered into an agreement to sell its business to
Borley Moving and Storage, Inc. (Borley Moving), a new entity formed
by the longtime manager of Borley Storage, Dennis Bauder, and his
wife. William Whitted, Jr. represented Borley Storage in the seller-financed
transaction and prepared all of the documents related to the sale
of the business. Pursuant to the purchase agreement and to provide
security for the transaction, Borley Moving granted Borley Storage
a security interest in the personal property, rolling stock, and
accounts receivable associated with the business. Borley Moving
also granted Borley Storage a first deed of trust in certain real
property. Whitted prepared and filed a mortgage and a financing
statement to perfect the security interests in the personal property
and accounts receivable. The financing statement was filed on 07/12/83.
By operation of law, this security interest lapsed on 07/12/88 and
no continuation statement was filed.
Borley Moving
defaulted on the purchase agreement in 1991, and Borley Storage
thereafter attempted to recover by foreclosing on the real estate
and recovering the collateral. Borley Moving filed bankruptcy in
1993. The bankruptcy court approved a reorganization plan in 1995,
and Borley Storage's claim was valued at $308,000. Approximately
$140,000 was secured by the real estate and rolling stock. However,
because a second creditor had filed a financing statement with respect
to the personal property on which Borley Storage failed to file
a continuation statement. As a result, Borley Storage lost its priority
with respect to the personal property and accounts receivable. Instead,
the second creditor received approximately $64,000 based on its
secured interest. Borley Storage never sought recovery from the
Bauders on the promissory note.
In this legal
malpractice action, Borley Storage and Transfer Co., Inc. (Borley
Storage) alleged that Warren R. Whitted, Jr., negligently failed
to file or advise its officers of the need to file the continuation
statement necessary to preserve the priority of its security interest
in the personal property and accounts receivable associated with
the business, thus depriving Borley Storage of security valued at
$106,000. Whitted denied that he was negligent, and he alleged as
an affirmative defense that Borley Storage failed to mitigate its
claimed damages. After trial, a jury entered a verdict in favor
of Whitted. Following entry of judgment on the jury verdict and
denial of its motion seeking alternative forms of postjudgment relief,
Borley Storage appealed and the case was moved to the docket of
the Nebraska Supreme Court.
Over the objection
of Borley Storage, gave an instruction to the jury that the failure
to file the continuation statement, did not relieve the Bauders
of their obligation to pay the indebtedness created by the promissory
note. The Court said that the only reasonable inference which could
be drawn from the record was that the Bauders were principal obligors
of the promissory note, not accommodation parties, and thus could
not have asserted an impairment of collateral defense to a claim
on the note. “Accordingly, the district court did not err in
determining as a matter of law that the Bauders were personally
liable on the note notwithstanding the failure to file a continuation
statement, and in so instructing the jury” said the Court.
Borley Storage
contended that the district court erred in receiving certain evidence
on, and instructing the jury with respect to, the affirmative defense
of mitigation of damages. Borley Storage argued that as a secured
creditor, it had a right to choose whether to sue on the promissory
note or proceed against the collateral and they contended that it
"clearly elected to recover its collateral, and did not then,
nor has it since, ever sought a dollar judgment against any maker
of the note." It characterized the instant action for attorney
malpractice as "merely an extension" of its efforts to
recover the value of its collateral and argued that Whitted, who
is alleged to have caused the loss of collateral, should not be
permitted "to dictate the manner in which the secured creditor
seeks to recover its losses upon default." The Court reminded
that this is not a proceeding to enforce a creditor's remedy under
the Uniform Commercial Code but rather, a legal malpractice action
governed by principles of tort law. Examining prior Nebraska law,
the Court found it was clear that the lapse of the security interest
in 1988 did not automatically result in any damage to Borley Storage.
“Had the Bauders, as comakers, made timely payments on the
note, the lapse of the security interest would have been of no consequence.”
The loss of the security interest deprived Borley Storage of one
of its remedies in the event of default by Borley Moving, but it
did not extinguish the alternative remedy of enforcing the Bauders'
personal liability on the note.
With that background,
the Court turned to the specific assignments of error pertaining
to mitigation of damages. Read together, the Court found that the
instructions complained of clearly inform the jury that it could
find Whitted liable only for those damages which could not have
been avoided by reasonable steps to mitigate.
Here, Whitted
testified that he did not have a specific recollection of informing
either Harry Borley or Maxine Borley of the need to file a continuation
statement within 5 years of filing the original financing statement.
Over an objection that he lacked personal knowledge, Whitted was
permitted to testify as to his habit and custom in advising parties
in seller-financed transactions.
Borley Storage
contends that the district court erred in receiving this testimony
over its objection. The Court said this error grew from § 27-406
(habit of a person or of the routine practice of an organization).
Here, Whitted testified that he has practiced law in Nebraska since
1974, focusing his practice on real estate and corporate transactional
law, including the sale of businesses of all sizes. Although Borley
Storage argued that Whitted did not provide a specific number of
transactions in which he had been professionally involved or the
details of any specific transaction, the Court concluded that this
goes to the weight to be given to his testimony and not to its admissibility.
There was no error in the admission of the testimony. AFFIRMED.
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Appeal and Error, 1st Degree Murder, Assistance of
Counsel
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In this appeal
of a jury conviction for first degree murder and the subsequent
sentencing, appellant assigned the following errors: (1) He was
denied effective assistance of counsel, (2) His conviction is not
supported by the evidence, (3) the trial court erred in imposing
excessive sentences, and (4) the trial court erred in overruling
his motion to discharge on speedy trial grounds. The Nebraska Supreme
Court found no error and affirmed.
State
v. Aldaco, 271 Neb. 160 (2006)
Supreme
Court Headnotes
Effectiveness
of Counsel:
- [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.
- [Proof.]
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must show that counsel's
performance was deficient and that this deficient performance actually
prejudiced his or her defense.
Right to
Counsel:
- [Conflict
of Interest:] (Appeal and Error.) Whether a defendant's lawyer's
representation violates a defendant's right to representation free
from conflicts of interest is a mixed question of law and fact that
an appellate court reviews independently of the lower court's decision.
Constitutional
Law:
- [Conflict
of Interest:] (Effectiveness of Counsel: Words and Phrases.)
An "actual conflict of interest," for Sixth Amendment
purposes, is a conflict of interest that adversely affects counsel's
performance.
Criminal
Law:
- [Convictions:]
(Evidence: Appeal and Error.) When reviewing a criminal conviction
for sufficiency of the evidence to sustain the conviction, the relevant
question for an appellate court is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt.
•••
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
- [Evidence:]
(Intent.) When the sufficiency of the evidence as to criminal
intent is questioned, independent evidence of specific intent is
not required. Rather, the intent with which an act is committed
is a mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the incident.
Verdicts:
- [Appeal
and Error.] Only where evidence lacks sufficient probative force
as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
Homicide:
- [Intent.]
Under Neb. Rev. Stat. § 28-303 (Reissue 1995), a specific intent
to kill is not required to constitute felony murder, only the intent
to do the act which constitutes the felony in question.
Sentences:
- An abuse of
discretion occurs when a sentencing court's reasoning or rulings
are clearly untenable and unfairly deprive the litigant of a substantial
right and a just result. ••• 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 the facts and circumstances surrounding the defendant's
life. ••• Factors a judge should consider in imposing
a sentence include the defendant's age, mentality, education, experience,
and social and cultural background, as well as his or her past criminal
record or law-abiding conduct, motivation for the offense, nature
of the offense, and the amount of violence involved in the commission
of the crime.
- [Appeal
and Error.] A sentence imposed within the statutory limits will
not be disturbed on appeal absent an abuse of discretion by the
trial court.
Speedy Trial.
- If a defendant
is not brought to trial before the running of the time for trial,
as extended by excluded periods, he or she shall be entitled to
his or her absolute discharge from the offense charged.
Final Orders:
- [Speedy
Trial:] (Notice: Appeal and Error.) Where a motion for discharge
on speedy trial grounds is submitted to a trial court, that motion
is inferentially denied where the trial court proceeds to trial
without expressly ruling on the motion. At that point, the denial
of the defendant's motion is a final, appealable order, and the
defendant must secure his or her rights to appellate review by filing
a timely notice of appeal.
Date Filed
and Case No.: March 3, 2006. No. S-05-587.
Internet
Address: http://court.nol.org/opinions/2006/march/mar3/s05-587.htm
Court Appealed
From: District Court for Douglas County: Joseph S. Troia, Judge.
Attorneys
for the Appeal: Mark A. Weber and Kylie A. Wolf for Samson Aldaco,
appellant. Jon Bruning, Don Kleine, and Michael W. Jensen for State
of Nebraska, appellee.
Justices:
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: McCormack, J.
Summary:
Samson Aldaco was convicted of first degree murder, use of a deadly
weapon to commit a felony, possession of a deadly weapon by a felon,
and possession of a controlled substance for his actions on December
7, 2001. Aldaco was sentenced to life imprisonment for murder in
the first degree, 10 years' imprisonment for use of a deadly weapon
to commit a felony, 10 years' imprisonment for possession of a deadly
weapon by a felon, and 1 year's imprisonment for possession of a
controlled substance. Aldaco appealed his convictions and sentences.
Testimony adduced
at trial established that in December 2001, Aldaco and four accomplices,
one of whom was Ray Lara, traveled from Garden City, Kansas, to
Omaha, Nebraska, to collect money owed to him from his illegal drug
business. After the five entered a residence where the debtors from
the drug business were located, the victims were robbed at gunpoint
while lying face down on the basement floor. Upon entering the basement,
Lara began yelling at the individuals on the floor, demanded their
wallets, and kicked and pistol-whipped them as he patted them down.
Stace Straw, one of the victims on the floor who was being patted
down, began to struggle with Lara. During this altercation, Lara
fatally shot Straw in the head. After Lara shot Straw, the men left
the residence and eventually met at a casino in Iowa, pursuant to
Aldaco's instructions. In traveling around Omaha after splitting
up with two of his accomplices, Aldaco was pulled over by Omaha
police for driving without his headlights illuminated. The officer
was subsequently advised that the vehicle and occupants matched
the description of the vehicle and individuals involved in an earlier
shooting. After assistance arrived, officers conducted a high-risk
felony stop and the three men in the vehicle were arrested. Upon
searching the vehicle, officers found handguns and a baggie containing
a white, powdery substance which tested positive for 17.2 grams
of methamphetamine and dimethyl sulfone.
The State filed
an information charging Aldaco with murder in the first degree.
A variety of attorney withdrawals, motions to suppress, appeals
thereof, and violations of the speedy trial statute were filed.
After being remanded, on 01/02/04, Aldaco filed a motion to discharge
on the ground that his right to a speedy trial had been violated.
Aldaco's trial commenced on January 5 where the court orally overruled
Aldaco's motion to discharge, but did not enter a written order
to that effect. The matter was then tried before a jury which found
Aldaco guilty of all charges. Adalco appealed.
On appeal, Aldaco
assigned the following errors: (1) Aldaco was denied effective assistance
of counsel, (2) Aldaco's conviction is not supported by the evidence,
(3) the trial court erred in imposing excessive sentences, and (4)
the trial court erred in overruling Aldaco's motion to discharge
on speedy trial grounds.
In his first
assignment of error, Aldaco claims the trial court erred in finding
that Aldaco's defense counsel competently represented him at trial.
Here, Aldaco contended that defense counsel was ineffective in that
the attorney had a conflict of interest due to the attorney's prior
representation of Straw's brother in an unrelated matter. Aldaco
also contends that he was denied his right to effective assistance
of counsel because the trial court failed to inquire into the alleged
conflict of interest. The Court’s review of the record clearly
demonstrated that the trial court inquired into the potential conflict
of interest stemming from defense counsel's prior representation
of Straw's brother and that the court reasonably concluded that
the prior representation did not create a conflict of interest.
“Based upon our review of the record, we find no evidence that
counsel was affected by a conflict of interest. Thus, there is no
evidence that counsel's performance was deficient, nor is there
any basis for a presumption of prejudice pursuant to Cuyler v.
Sullivan, (446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)).”
In his second
assignment of error, Aldaco claimed that the evidence presented
at trial was insufficient to sustain his conviction for first degree
murder. Aldaco was charged with first degree murder for the death
of Straw based upon either deliberate and premeditated murder or
death during the perpetration or attempt to perpetrate a robbery.
On appeal, Aldaco specifically contended the evidence fails to establish
that a robbery was intended or that there was a plan to hurt or
kill anyone. Viewed in the light most favorable to the prosecution,
the Court found that the record reflected that Aldaco orchestrated
a plan whereby he and his colleagues drove to Omaha in order to
collect money owed to Aldaco. Pursuant to a request by Aldaco, all
five men carried with them either their own gun or a gun provided
by Aldaco. In the basement, Straw and the other individuals were
forced to lie face down on the floor and were ordered not to move,
or they would be killed. While these individuals were lying on the
floor, money was demanded of them and their wallets were taken.
Thereafter, Lara began physically assaulting the individuals and
ultimately shot and killed Straw. “Based on the evidence, we
conclude that a rational trier of fact could have found that a robbery
was committed and that the essential elements of the crime of first
degree murder were proved beyond a reasonable doubt” the Court
ruled and Aldaco's second assignment of error was, therefore, without
merit.
Aldaco next
claimed that the trial court erred in the sentencing. Aldaco argued
that the trial court failed to consider his age, mentality, education,
experience, social and cultural background, past criminal record,
motivation for the offense, nature of the offense, amount of violence
involved in the crime, and his character. The Court noted that the
crimes involved in the instant case involved a violent, senseless
incident which resulted in the death of an individual. As noted
by the trial court, while Aldaco may not have pulled the trigger,
it was he that "put the ball in motion" which led to Straw's
death. The trial court, which reviewed the record and was familiar
with the circumstances of the case, imposed sentences which are
within the statutory limitations. “Considering the totality
of the circumstances,” they ruled “we conclude that the
trial court did not abuse its discretion in imposing the sentences.”
In his final
assignment of error, Aldaco contends he was denied his right to
a speedy trial. Pursuant to State v. Ward, 257 Neb. 377,
384, 597 N.W.2d 614, 619 (1999), disapproved on other grounds
the Court ruled that the trial court's decision overruling Aldaco's
motion to discharge was appealable on 01/05/04 after the court verbally
overruled the motion and proceeded to trial. Thereafter, Aldaco
had 30 days in which to file an appeal. Although Aldaco filed a
pro se notice of appeal on February 2, within the 30-day period,
that appeal was dismissed, and Aldaco did not seek further review
of that decision with the Nebraska Supreme Court . Regardless of
whether Aldaco's February 2 appeal should have been dismissed, both
his 05/21/04, and his 05/06/05 appeals are untimely challenges of
the denial of his motion to discharge. AFFIRMED.
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| Appeal
and Error, 1st Degree Murder, Sentencing
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Back
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In this appeal
of a jury conviction for first degree murder and the subsequent
sentencing, appellant assigned the following errors: (1) He was
denied effective assistance of counsel, (2) His conviction is not
supported by the evidence, (3) the trial court erred in imposing
excessive sentences, and (4) the trial court erred in overruling
his motion to discharge on speedy trial grounds. The Nebraska Supreme
Court found no error and affirmed.
State
v. Aldaco, 271 Neb. 160 (2006)
Supreme
Court Headnotes
Effectiveness
of Counsel:
- [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.
- [Proof.]
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must show that counsel's
performance was deficient and that this deficient performance actually
prejudiced his or her defense.
Right to
Counsel:
- [Conflict
of Interest:] (Appeal and Error.) Whether a defendant's lawyer's
representation violates a defendant's right to representation free
from conflicts of interest is a mixed question of law and fact that
an appellate court reviews independently of the lower court's decision.
Constitutional
Law:
- [Conflict
of Interest:] (Effectiveness of Counsel: Words and Phrases.)
An "actual conflict of interest," for Sixth Amendment
purposes, is a conflict of interest that adversely affects counsel's
performance.
Criminal
Law:
- [Convictions:]
(Evidence: Appeal and Error.) When reviewing a criminal conviction
for sufficiency of the evidence to sustain the conviction, the relevant
question for an appellate court is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt.
•••
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
- [Evidence:]
(Intent.) When the sufficiency of the evidence as to criminal
intent is questioned, independent evidence of specific intent is
not required. Rather, the intent with which an act is committed
is a mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the incident.
Verdicts:
- [Appeal
and Error.] Only where evidence lacks sufficient probative force
as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
Homicide:
- [Intent.]
Under Neb. Rev. Stat. § 28-303 (Reissue 1995), a specific intent
to kill is not required to constitute felony murder, only the intent
to do the act which constitutes the felony in question.
Sentences:
- An abuse of
discretion occurs when a sentencing court's reasoning or rulings
are clearly untenable and unfairly deprive the litigant of a substantial
right and a just result. ••• 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 the facts and circumstances surrounding the defendant's
life. ••• Factors a judge should consider in imposing
a sentence include the defendant's age, mentality, education, experience,
and social and cultural background, as well as his or her past criminal
record or law-abiding conduct, motivation for the offense, nature
of the offense, and the amount of violence involved in the commission
of the crime.
- [Appeal
and Error.] A sentence imposed within the statutory limits will
not be disturbed on appeal absent an abuse of discretion by the
trial court.
Speedy Trial.
- If a defendant
is not brought to trial before the running of the time for trial,
as extended by excluded periods, he or she shall be entitled to
his or her absolute discharge from the offense charged.
Final Orders:
- [Speedy
Trial:] (Notice: Appeal and Error.) Where a motion for discharge
on speedy trial grounds is submitted to a trial court, that motion
is inferentially denied where the trial court proceeds to trial
without expressly ruling on the motion. At that point, the denial
of the defendant's motion is a final, appealable order, and the
defendant must secure his or her rights to appellate review by filing
a timely notice of appeal.
Date Filed
and Case No.: March 3, 2006. No. S-05-587.
Internet
Address: http://court.nol.org/opinions/2006/march/mar3/s05-587.htm
Court Appealed
From: District Court for Douglas County: Joseph S. Troia, Judge.
Attorneys
for the Appeal: Mark A. Weber and Kylie A. Wolf for Samson Aldaco,
appellant. Jon Bruning, Don Kleine, and Michael W. Jensen for State
of Nebraska, appellee.
Justices:
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: McCormack, J.
Summary:
Samson Aldaco was convicted of first degree murder, use of a deadly
weapon to commit a felony, possession of a deadly weapon by a felon,
and possession of a controlled substance for his actions on December
7, 2001. Aldaco was sentenced to life imprisonment for murder in
the first degree, 10 years' imprisonment for use of a deadly weapon
to commit a felony, 10 years' imprisonment for possession of a deadly
weapon by a felon, and 1 year's imprisonment for possession of a
controlled substance. Aldaco appealed his convictions and sentences.
Testimony adduced
at trial established that in December 2001, Aldaco and four accomplices,
one of whom was Ray Lara, traveled from Garden City, Kansas, to
Omaha, Nebraska, to collect money owed to him from his illegal drug
business. After the five entered a residence where the debtors from
the drug business were located, the victims were robbed at gunpoint
while lying face down on the basement floor. Upon entering the basement,
Lara began yelling at the individuals on the floor, demanded their
wallets, and kicked and pistol-whipped them as he patted them down.
Stace Straw, one of the victims on the floor who was being patted
down, began to struggle with Lara. During this altercation, Lara
fatally shot Straw in the head. After Lara shot Straw, the men left
the residence and eventually met at a casino in Iowa, pursuant to
Aldaco's instructions. In traveling around Omaha after splitting
up with two of his accomplices, Aldaco was pulled over by Omaha
police for driving without his headlights illuminated. The officer
was subsequently advised that the vehicle and occupants matched
the description of the vehicle and individuals involved in an earlier
shooting. After assistance arrived, officers conducted a high-risk
felony stop and the three men in the vehicle were arrested. Upon
searching the vehicle, officers found handguns and a baggie containing
a white, powdery substance which tested positive for 17.2 grams
of methamphetamine and dimethyl sulfone.
The State filed
an information charging Aldaco with murder in the first degree.
A variety of attorney withdrawals, motions to suppress, appeals
thereof, and violations of the speedy trial statute were filed.
After being remanded, on 01/02/04, Aldaco filed a motion to discharge
on the ground that his right to a speedy trial had been violated.
Aldaco's trial commenced on January 5 where the court orally overruled
Aldaco's motion to discharge, but did not enter a written order
to that effect. The matter was then tried before a jury which found
Aldaco guilty of all charges. Adalco appealed.
On appeal, Aldaco
assigned the following errors: (1) Aldaco was denied effective assistance
of counsel, (2) Aldaco's conviction is not supported by the evidence,
(3) the trial court erred in imposing excessive sentences, and (4)
the trial court erred in overruling Aldaco's motion to discharge
on speedy trial grounds.
In his first
assignment of error, Aldaco claims the trial court erred in finding
that Aldaco's defense counsel competently represented him at trial.
Here, Aldaco contended that defense counsel was ineffective in that
the attorney had a conflict of interest due to the attorney's prior
representation of Straw's brother in an unrelated matter. Aldaco
also contends that he was denied his right to effective assistance
of counsel because the trial court failed to inquire into the alleged
conflict of interest. The Court’s review of the record clearly
demonstrated that the trial court inquired into the potential conflict
of interest stemming from defense counsel's prior representation
of Straw's brother and that the court reasonably concluded that
the prior representation did not create a conflict of interest.
“Based upon our review of the record, we find no evidence that
counsel was affected by a conflict of interest. Thus, there is no
evidence that counsel's performance was deficient, nor is there
any basis for a presumption of prejudice pursuant to Cuyler v.
Sullivan, (446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)).”
In his second
assignment of error, Aldaco claimed that the evidence presented
at trial was insufficient to sustain his conviction for first degree
murder. Aldaco was charged with first degree murder for the death
of Straw based upon either deliberate and premeditated murder or
death during the perpetration or attempt to perpetrate a robbery.
On appeal, Aldaco specifically contended the evidence fails to establish
that a robbery was intended or that there was a plan to hurt or
kill anyone. Viewed in the light most favorable to the prosecution,
the Court found that the record reflected that Aldaco orchestrated
a plan whereby he and his colleagues drove to Omaha in order to
collect money owed to Aldaco. Pursuant to a request by Aldaco, all
five men carried with them either their own gun or a gun provided
by Aldaco. In the basement, Straw and the other individuals were
forced to lie face down on the floor and were ordered not to move,
or they would be killed. While these individuals were lying on the
floor, money was demanded of them and their wallets were taken.
Thereafter, Lara began physically assaulting the individuals and
ultimately shot and killed Straw. “Based on the evidence, we
conclude that a rational trier of fact could have found that a robbery
was committed and that the essential elements of the crime of first
degree murder were proved beyond a reasonable doubt” the Court
ruled and Aldaco's second assignment of error was, therefore, without
merit.
Aldaco next
claimed that the trial court erred in the sentencing. Aldaco argued
that the trial court failed to consider his age, mentality, education,
experience, social and cultural background, past criminal record,
motivation for the offense, nature of the offense, amount of violence
involved in the crime, and his character. The Court noted that the
crimes involved in the instant case involved a violent, senseless
incident which resulted in the death of an individual. As noted
by the trial court, while Aldaco may not have pulled the trigger,
it was he that "put the ball in motion" which led to Straw's
death. The trial court, which reviewed the record and was familiar
with the circumstances of the case, imposed sentences which are
within the statutory limitations. “Considering the totality
of the circumstances,” they ruled “we conclude that the
trial court did not abuse its discretion in imposing the sentences.”
In his final
assignment of error, Aldaco contends he was denied his right to
a speedy trial. Pursuant to State v. Ward, 257 Neb. 377,
384, 597 N.W.2d 614, 619 (1999), disapproved on other grounds
the Court ruled that the trial court's decision overruling Aldaco's
motion to discharge was appealable on 01/05/04 after the court verbally
overruled the motion and proceeded to trial. Thereafter, Aldaco
had 30 days in which to file an appeal. Although Aldaco filed a
pro se notice of appeal on February 2, within the 30-day period,
that appeal was dismissed, and Aldaco did not seek further review
of that decision with the Nebraska Supreme Court . Regardless of
whether Aldaco's February 2 appeal should have been dismissed, both
his 05/21/04, and his 05/06/05 appeals are untimely challenges of
the denial of his motion to discharge. AFFIRMED.
|
| Appeal
and Error, 1st Degree Murder, Sufficiency of Evidence
|
|
Back
to ShortCuts
In this appeal
of a jury conviction for first degree murder and the subsequent
sentencing, appellant assigned the following errors: (1) He was
denied effective assistance of counsel, (2) His conviction is not
supported by the evidence, (3) the trial court erred in imposing
excessive sentences, and (4) the trial court erred in overruling
his motion to discharge on speedy trial grounds. The Nebraska Supreme
Court found no error and affirmed.
State
v. Aldaco, 271 Neb. 160 (2006)
Supreme
Court Headnotes
Effectiveness
of Counsel:
- [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.
- [Proof.]
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must show that counsel's
performance was deficient and that this deficient performance actually
prejudiced his or her defense.
Right to
Counsel:
- [Conflict
of Interest:] (Appeal and Error.) Whether a defendant's lawyer's
representation violates a defendant's right to representation free
from conflicts of interest is a mixed question of law and fact that
an appellate court reviews independently of the lower court's decision.
Constitutional
Law:
- [Conflict
of Interest:] (Effectiveness of Counsel: Words and Phrases.)
An "actual conflict of interest," for Sixth Amendment
purposes, is a conflict of interest that adversely affects counsel's
performance.
Criminal
Law:
- [Convictions:]
(Evidence: Appeal and Error.) When reviewing a criminal conviction
for sufficiency of the evidence to sustain the conviction, the relevant
question for an appellate court is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt.
•••
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
- [Evidence:]
(Intent.) When the sufficiency of the evidence as to criminal
intent is questioned, independent evidence of specific intent is
not required. Rather, the intent with which an act is committed
is a mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the incident.
Verdicts:
- [Appeal
and Error.] Only where evidence lacks sufficient probative force
as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
Homicide:
- [Intent.]
Under Neb. Rev. Stat. § 28-303 (Reissue 1995), a specific intent
to kill is not required to constitute felony murder, only the intent
to do the act which constitutes the felony in question.
Sentences:
- An abuse of
discretion occurs when a sentencing court's reasoning or rulings
are clearly untenable and unfairly deprive the litigant of a substantial
right and a just result. ••• 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 the facts and circumstances surrounding the defendant's
life. ••• Factors a judge should consider in imposing
a sentence include the defendant's age, mentality, education, experience,
and social and cultural background, as well as his or her past criminal
record or law-abiding conduct, motivation for the offense, nature
of the offense, and the amount of violence involved in the commission
of the crime.
- [Appeal
and Error.] A sentence imposed within the statutory limits will
not be disturbed on appeal absent an abuse of discretion by the
trial court.
Speedy Trial.
- If a defendant
is not brought to trial before the running of the time for trial,
as extended by excluded periods, he or she shall be entitled to
his or her absolute discharge from the offense charged.
Final Orders:
- [Speedy
Trial:] (Notice: Appeal and Error.) Where a motion for discharge
on speedy trial grounds is submitted to a trial court, that motion
is inferentially denied where the trial court proceeds to trial
without expressly ruling on the motion. At that point, the denial
of the defendant's motion is a final, appealable order, and the
defendant must secure his or her rights to appellate review by filing
a timely notice of appeal.
Date Filed
and Case No.: March 3, 2006. No. S-05-587.
Internet
Address: http://court.nol.org/opinions/2006/march/mar3/s05-587.htm
Court Appealed
From: District Court for Douglas County: Joseph S. Troia, Judge.
Attorneys
for the Appeal: Mark A. Weber and Kylie A. Wolf for Samson Aldaco,
appellant. Jon Bruning, Don Kleine, and Michael W. Jensen for State
of Nebraska, appellee.
Justices:
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: McCormack, J.
Summary:
Samson Aldaco was convicted of first degree murder, use of a deadly
weapon to commit a felony, possession of a deadly weapon by a felon,
and possession of a controlled substance for his actions on December
7, 2001. Aldaco was sentenced to life imprisonment for murder in
the first degree, 10 years' imprisonment for use of a deadly weapon
to commit a felony, 10 years' imprisonment for possession of a deadly
weapon by a felon, and 1 year's imprisonment for possession of a
controlled substance. Aldaco appealed his convictions and sentences.
Testimony adduced
at trial established that in December 2001, Aldaco and four accomplices,
one of whom was Ray Lara, traveled from Garden City, Kansas, to
Omaha, Nebraska, to collect money owed to him from his illegal drug
business. After the five entered a residence where the debtors from
the drug business were located, the victims were robbed at gunpoint
while lying face down on the basement floor. Upon entering the basement,
Lara began yelling at the individuals on the floor, demanded their
wallets, and kicked and pistol-whipped them as he patted them down.
Stace Straw, one of the victims on the floor who was being patted
down, began to struggle with Lara. During this altercation, Lara
fatally shot Straw in the head. After Lara shot Straw, the men left
the residence and eventually met at a casino in Iowa, pursuant to
Aldaco's instructions. In traveling around Omaha after splitting
up with two of his accomplices, Aldaco was pulled over by Omaha
police for driving without his headlights illuminated. The officer
was subsequently advised that the vehicle and occupants matched
the description of the vehicle and individuals involved in an earlier
shooting. After assistance arrived, officers conducted a high-risk
felony stop and the three men in the vehicle were arrested. Upon
searching the vehicle, officers found handguns and a baggie containing
a white, powdery substance which tested positive for 17.2 grams
of methamphetamine and dimethyl sulfone.
The State filed
an information charging Aldaco with murder in the first degree.
A variety of attorney withdrawals, motions to suppress, appeals
thereof, and violations of the speedy trial statute were filed.
After being remanded, on 01/02/04, Aldaco filed a motion to discharge
on the ground that his right to a speedy trial had been violated.
Aldaco's trial commenced on January 5 where the court orally overruled
Aldaco's motion to discharge, but did not enter a written order
to that effect. The matter was then tried before a jury which found
Aldaco guilty of all charges. Adalco appealed.
On appeal, Aldaco
assigned the following errors: (1) Aldaco was denied effective assistance
of counsel, (2) Aldaco's conviction is not supported by the evidence,
(3) the trial court erred in imposing excessive sentences, and (4)
the trial court erred in overruling Aldaco's motion to discharge
on speedy trial grounds.
In his first
assignment of error, Aldaco claims the trial court erred in finding
that Aldaco's defense counsel competently represented him at trial.
Here, Aldaco contended that defense counsel was ineffective in that
the attorney had a conflict of interest due to the attorney's prior
representation of Straw's brother in an unrelated matter. Aldaco
also contends that he was denied his right to effective assistance
of counsel because the trial court failed to inquire into the alleged
conflict of interest. The Court’s review of the record clearly
demonstrated that the trial court inquired into the potential conflict
of interest stemming from defense counsel's prior representation
of Straw's brother and that the court reasonably concluded that
the prior representation did not create a conflict of interest.
“Based upon our review of the record, we find no evidence that
counsel was affected by a conflict of interest. Thus, there is no
evidence that counsel's performance was deficient, nor is there
any basis for a presumption of prejudice pursuant to Cuyler v.
Sullivan, (446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)).”
In his second
assignment of error, Aldaco claimed that the evidence presented
at trial was insufficient to sustain his conviction for first degree
murder. Aldaco was charged with first degree murder for the death
of Straw based upon either deliberate and premeditated murder or
death during the perpetration or attempt to perpetrate a robbery.
On appeal, Aldaco specifically contended the evidence fails to establish
that a robbery was intended or that there was a plan to hurt or
kill anyone. Viewed in the light most favorable to the prosecution,
the Court found that the record reflected that Aldaco orchestrated
a plan whereby he and his colleagues drove to Omaha in order to
collect money owed to Aldaco. Pursuant to a request by Aldaco, all
five men carried with them either their own gun or a gun provided
by Aldaco. In the basement, Straw and the other individuals were
forced to lie face down on the floor and were ordered not to move,
or they would be killed. While these individuals were lying on the
floor, money was demanded of them and their wallets were taken.
Thereafter, Lara began physically assaulting the individuals and
ultimately shot and killed Straw. “Based on the evidence, we
conclude that a rational trier of fact could have found that a robbery
was committed and that the essential elements of the crime of first
degree murder were proved beyond a reasonable doubt” the Court
ruled and Aldaco's second assignment of error was, therefore, without
merit.
Aldaco next
claimed that the trial court erred in the sentencing. Aldaco argued
that the trial court failed to consider his age, mentality, education,
experience, social and cultural background, past criminal record,
motivation for the offense, nature of the offense, amount of violence
involved in the crime, and his character. The Court noted that the
crimes involved in the instant case involved a violent, senseless
incident which resulted in the death of an individual. As noted
by the trial court, while Aldaco may not have pulled the trigger,
it was he that "put the ball in motion" which led to Straw's
death. The trial court, which reviewed the record and was familiar
with the circumstances of the case, imposed sentences which are
within the statutory limitations. “Considering the totality
of the circumstances,” they ruled “we conclude that the
trial court did not abuse its discretion in imposing the sentences.”
In his final
assignment of error, Aldaco contends he was denied his right to
a speedy trial. Pursuant to State v. Ward, 257 Neb. 377,
384, 597 N.W.2d 614, 619 (1999), disapproved on other grounds
the Court ruled that the trial court's decision overruling Aldaco's
motion to discharge was appealable on 01/05/04 after the court verbally
overruled the motion and proceeded to trial. Thereafter, Aldaco
had 30 days in which to file an appeal. Although Aldaco filed a
pro se notice of appeal on February 2, within the 30-day period,
that appeal was dismissed, and Aldaco did not seek further review
of that decision with the Nebraska Supreme Court . Regardless of
whether Aldaco's February 2 appeal should have been dismissed, both
his 05/21/04, and his 05/06/05 appeals are untimely challenges of
the denial of his motion to discharge. AFFIRMED.
|
| Appeal
and Error, Speedy Trial
|
|
Back
to ShortCuts
In this appeal
of a jury conviction for first degree murder and the subsequent
sentencing, appellant assigned the following errors: (1) He was
denied effective assistance of counsel, (2) His conviction is not
supported by the evidence, (3) the trial court erred in imposing
excessive sentences, and (4) the trial court erred in overruling
his motion to discharge on speedy trial grounds. The Nebraska Supreme
Court found no error and affirmed.
State
v. Aldaco, 271 Neb. 160 (2006)
Supreme
Court Headnotes
Effectiveness
of Counsel:
- [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.
- [Proof.]
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must show that counsel's
performance was deficient and that this deficient performance actually
prejudiced his or her defense.
Right to
Counsel:
- [Conflict
of Interest:] (Appeal and Error.) Whether a defendant's lawyer's
representation violates a defendant's right to representation free
from conflicts of interest is a mixed question of law and fact that
an appellate court reviews independently of the lower court's decision.
Constitutional
Law:
- [Conflict
of Interest:] (Effectiveness of Counsel: Words and Phrases.)
An "actual conflict of interest," for Sixth Amendment
purposes, is a conflict of interest that adversely affects counsel's
performance.
Criminal
Law:
- [Convictions:]
(Evidence: Appeal and Error.) When reviewing a criminal conviction
for sufficiency of the evidence to sustain the conviction, the relevant
question for an appellate court is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt.
•••
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
- [Evidence:]
(Intent.) When the sufficiency of the evidence as to criminal
intent is questioned, independent evidence of specific intent is
not required. Rather, the intent with which an act is committed
is a mental process and may be inferred from the words and acts
of the defendant and from the circumstances surrounding the incident.
Verdicts:
- [Appeal
and Error.] Only where evidence lacks sufficient probative force
as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
Homicide:
- [Intent.]
Under Neb. Rev. Stat. § 28-303 (Reissue 1995), a specific intent
to kill is not required to constitute felony murder, only the intent
to do the act which constitutes the felony in question.
Sentences:
- An abuse of
discretion occurs when a sentencing court's reasoning or rulings
are clearly untenable and unfairly deprive the litigant of a substantial
right and a just result. ••• 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 the facts and circumstances surrounding the defendant's
life. ••• Factors a judge should consider in imposing
a sentence include the defendant's age, mentality, education, experience,
and social and cultural background, as well as his or her past criminal
record or law-abiding conduct, motivation for the offense, nature
of the offense, and the amount of violence involved in the commission
of the crime.
- [Appeal
and Error.] A sentence imposed within the statutory limits will
not be disturbed on appeal absent an abuse of discretion by the
trial court.
Speedy Trial.
- If a defendant
is not brought to trial before the running of the time for trial,
as extended by excluded periods, he or she shall be entitled to
his or her absolute discharge from the offense charged.
Final Orders:
- [Speedy
Trial:] (Notice: Appeal and Error.) Where a motion for discharge
on speedy trial grounds is submitted to a trial court, that motion
is inferentially denied where the trial court proceeds to trial
without expressly ruling on the motion. At that point, the denial
of the defendant's motion is a final, appealable order, and the
defendant must secure his or her rights to appellate review by filing
a timely notice of appeal.
Date Filed
and Case No.: March 3, 2006. No. S-05-587.
Internet
Address: http://court.nol.org/opinions/2006/march/mar3/s05-587.htm
Court Appealed
From: District Court for Douglas County: Joseph S. Troia, Judge.
Attorneys
for the Appeal: Mark A. Weber and Kylie A. Wolf for Samson Aldaco,
appellant. Jon Bruning, Don Kleine, and Michael W. Jensen for State
of Nebraska, appellee.
Justices:
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: McCormack, J.
Summary:
Samson Aldaco was convicted of first degree murder, use of a deadly
weapon to commit a felony, possession of a deadly weapon by a felon,
and possession of a controlled substance for his actions on December
7, 2001. Aldaco was sentenced to life imprisonment for murder in
the first degree, 10 years' imprisonment for use of a deadly weapon
to commit a felony, 10 years' imprisonment for possession of a deadly
weapon by a felon, and 1 year's imprisonment for possession of a
controlled substance. Aldaco appealed his convictions and sentences.
Testimony adduced
at trial established that in December 2001, Aldaco and four accomplices,
one of whom was Ray Lara, traveled from Garden City, Kansas, to
Omaha, Nebraska, to collect money owed to him from his illegal drug
business. After the five entered a residence where the debtors from
the drug business were located, the victims were robbed at gunpoint
while lying face down on the basement floor. Upon entering the basement,
Lara began yelling at the individuals on the floor, demanded their
wallets, and kicked and pistol-whipped them as he patted them down.
Stace Straw, one of the victims on the floor who was being patted
down, began to struggle with Lara. During this altercation, Lara
fatally shot Straw in the head. After Lara shot Straw, the men left
the residence and eventually met at a casino in Iowa, pursuant to
Aldaco's instructions. In traveling around Omaha after splitting
up with two of his accomplices, Aldaco was pulled over by Omaha
police for driving without his headlights illuminated. The officer
was subsequently advised that the vehicle and occupants matched
the description of the vehicle and individuals involved in an earlier
shooting. After assistance arrived, officers conducted a high-risk
felony stop and the three men in the vehicle were arrested. Upon
searching the vehicle, officers found handguns and a baggie containing
a white, powdery substance which tested positive for 17.2 grams
of methamphetamine and dimethyl sulfone.
The State filed
an information charging Aldaco with murder in the first degree.
A variety of attorney withdrawals, motions to suppress, appeals
thereof, and violations of the speedy trial statute were filed.
After being remanded, on 01/02/04, Aldaco filed a motion to discharge
on the ground that his right to a speedy trial had been violated.
Aldaco's trial commenced on January 5 where the court orally overruled
Aldaco's motion to discharge, but did not enter a written order
to that effect. The matter was then tried before a jury which found
Aldaco guilty of all charges. Adalco appealed.
On appeal, Aldaco
assigned the following errors: (1) Aldaco was denied effective assistance
of counsel, (2) Aldaco's conviction is not supported by the evidence,
(3) the trial court erred in imposing excessive sentences, and (4)
the trial court erred in overruling Aldaco's motion to discharge
on speedy trial grounds.
In his first
assignment of error, Aldaco claims the trial court erred in finding
that Aldaco's defense counsel competently represented him at trial.
Here, Aldaco contended that defense counsel was ineffective in that
the attorney had a conflict of interest due to the attorney's prior
representation of Straw's brother in an unrelated matter. Aldaco
also contends that he was denied his right to effective assistance
of counsel because the trial court failed to inquire into the alleged
conflict of interest. The Court’s review of the record clearly
demonstrated that the trial court inquired into the potential conflict
of interest stemming from defense counsel's prior representation
of Straw's brother and that the court reasonably concluded that
the prior representation did not create a conflict of interest.
“Based upon our review of the record, we find no evidence that
counsel was affected by a conflict of interest. Thus, there is no
evidence that counsel's performance was deficient, nor is there
any basis for a presumption of prejudice pursuant to Cuyler v.
Sullivan, (446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980)).”
In his second
assignment of error, Aldaco claimed that the evidence presented
at trial was insufficient to sustain his conviction for first degree
murder. Aldaco was charged with first degree murder for the death
of Straw based upon either deliberate and premeditated murder or
death during the perpetration or attempt to perpetrate a robbery.
On appeal, Aldaco specifically contended the evidence fails to establish
that a robbery was intended or that there was a plan to hurt or
kill anyone. Viewed in the light most favorable to the prosecution,
the Court found that the record reflected that Aldaco orchestrated
a plan whereby he and his colleagues drove to Omaha in order to
collect money owed to Aldaco. Pursuant to a request by Aldaco, all
five men carried with them either their own gun or a gun provided
by Aldaco. In the basement, Straw and the other individuals were
forced to lie face down on the floor and were ordered not to move,
or they would be killed. While these individuals were lying on the
floor, money was demanded of them and their wallets were taken.
Thereafter, Lara began physically assaulting the individuals and
ultimately shot and killed Straw. “Based on the evidence, we
conclude that a rational trier of fact could have found that a robbery
was committed and that the essential elements of the crime of first
degree murder were proved beyond a reasonable doubt” the Court
ruled and Aldaco's second assignment of error was, therefore, without
merit.
Aldaco next
claimed that the trial court erred in the sentencing. Aldaco argued
that the trial court failed to consider his age, mentality, education,
experience, social and cultural background, past criminal record,
motivation for the offense, nature of the offense, amount of violence
involved in the crime, and his character. The Court noted that the
crimes involved in the instant case involved a violent, senseless
incident which resulted in the death of an individual. As noted
by the trial court, while Aldaco may not have pulled the trigger,
it was he that "put the ball in motion" which led to Straw's
death. The trial court, which reviewed the record and was familiar
with the circumstances of the case, imposed sentences which are
within the statutory limitations. “Considering the totality
of the circumstances,” they ruled “we conclude that the
trial court did not abuse its discretion in imposing the sentences.”
In his final
assignment of error, Aldaco contends he was denied his right to
a speedy trial. Pursuant to State v. Ward, 257 Neb. 377,
384, 597 N.W.2d 614, 619 (1999), disapproved on other grounds
the Court ruled that the trial court's decision overruling Aldaco's
motion to discharge was appealable on 01/05/04 after the court verbally
overruled the motion and proceeded to trial. Thereafter, Aldaco
had 30 days in which to file an appeal. Although Aldaco filed a
pro se notice of appeal on February 2, within the 30-day period,
that appeal was dismissed, and Aldaco did not seek further review
of that decision with the Nebraska Supreme Court . Regardless of
whether Aldaco's February 2 appeal should have been dismissed, both
his 05/21/04, and his 05/06/05 appeals are untimely challenges of
the denial of his motion to discharge. AFFIRMED.
|
| Attorney's
Lien
|
|
Back
to ShortCuts
In this case
of first impression. brought under the Tort Claims Act, the Nebraska
Supreme Court concludes that under the language of § 25-2214.01,
when an adverse party pays sums into the office of the clerk of
the district court to satisfy a judgment, and prior to the payment
of such sums, an attorney's lien has attached to such sums, the
district court clerk has a duty without regard to whether the attorney
has intervened to retain that portion of the funds to which an attorney's
lien has attached until the "rightful owner" of the sums
can be determined.
Stover
v. County of Lancaster, 271 Neb. 107 (2006)
Supreme
Court Headnotes
Courts:
- [Appeal
and Error.] The district court and higher appellate courts generally
review appeals from the county court for error appearing on the
record.
Judgments:
- [Appeal
and Error.] When reviewing a judgment for errors appearing on
the record, the inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. ••• In instances when
an appellate court is required to review cases for error appearing
on the record, questions of law are nonetheless reviewed de novo
on the record.
Attorney
Fees:
- [Attorneys'
Liens:] (Notice.) The purpose of the notice requirement of Neb.
Rev. Stat. § 7-108 (Reissue 1997) is to protect innocent persons
who have no notice or knowledge that an attorney claims a lien on
the judgment. ••• When an attorney has given appropriate
notice of an attorney's lien under Neb. Rev. Stat. § 7-108
(Reissue 1997), the lien is perfected and attaches to funds in the
hands of the adverse party and belonging to the attorney's client.
••• When an adverse party pays into the clerk of
the district court such sums as will satisfy a judgment awarded
against that party, and prior to the payment of such sums into the
court, notice is given and an attorney's lien has attached, the
district court clerk who has notice of the lien by virtue of its
filing has a duty to retain that portion of the deposited funds
to which an attorney's lien has attached until the rightful owner
of the sums retained can be determined. When the funds cannot be
fully paid out, as part of the clerk's duty to manage such funds,
the clerk of the district court should notify those entities of
whom the clerk is on notice who have claimed an interest in the
funds, of the retention of the funds, to effectuate the determination
of the rightful owner. (Liability.) Despite the attachment
of an attorney's lien, the adverse party may be relieved from liability
on such lien by payment of the judgment into the clerk of the court.
Date Filed
and Case No.: March 3, 2006. No. S-04-1108.
Internet
Address: http://court.nol.org/opinions/2006/march/mar3/s04-1108.htm
Court Appealed
From: District Court for Lancaster County, Karen Flowers, Judge,
on appeal thereto from the County Court for Lancaster County, James
L. Foster, Judge.
Attorneys
for the Appeal: Victor E. Covalt III and Mary C. Gaines for
DeAnn C. Stover, appellant. Gary E. Lacey, Douglas D. Cyr, and Nathan
Evershed, Senior Certified Law Student, for County of Lancaster,
appellee.
Justices:
Hendry, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Participating
on Briefs: Wright, J.
Authored
By: Miller-Lerman, J.
Summary:
DeAnn C. Stover, an attorney, filed a claim against Lancaster County
asserting that the clerk of the district court erred when the clerk
paid the entirety of the funds deposited by a judgment debtor to
the judgment creditor in disregard of an attorney's lien filed by
Stover. The Lancaster County Board of Commissioners denied Stover's
claim. In subsequent litigation brought under the Political Subdivisions
Tort Claims Act, Neb. Rev. Stat. § 13-901 et seq. (Reissue
1997 & Cum. Supp. 2002) (Tort Claims Act), the county court
ruled in favor of Lancaster County and dismissed Stover's complaint.
The district court for Lancaster County concluded the clerk did
not owe a duty to Stover and affirmed the county court's decision.
Stover appealed from the district court's decision to the Nebraska
Supreme Court.
At issue in
this appeal is the determination of the duties of the clerk of the
district court to preserve funds in a case in which an attorney's
lien has been filed. The Court said it had not previously commented
on the duties of the clerk under circumstances such as this case.
Relevant to the analysis is the attorney's lien statute, Neb. Rev.
Stat. § 7-108 (Reissue 1997), and the district court clerk's
money and property management statute, Neb. Rev. Stat. § 25-2214.01
(Reissue 1995). On appeal, Stover challenged the district court's
conclusion that the clerk of the district court owed no duty to
Stover under § 25-2214.01. Specifically, Stover asserted that
after she filed her attorney's lien under § 7-108, she had
asserted an interest to at least a portion of the funds subsequently
paid by the judgment debtor here, Lori Denision, into the clerk's
office, and that pursuant to § 25-2214.01, the district court
clerk had a duty to retain possession of funds sufficient to satisfy
Stover's lien until such time as the rightful ownership of those
funds could be determined. “We agree with Stover that under
the facts, the clerk owed a duty to Stover” said the Court.
Because Stover
filed her attorney's lien prior to Lori's payment of the funds to
the district court clerk, at the time Lori paid the judgment into
the court, the lien had been perfected by Stover's notice and had
attached to the funds. Notwithstanding perfection of Stover's attorney's
lien, under the rulings of the Nebraska Supreme Court noted in the
opinion, Lori, as the adverse party and judgment debtor, was nevertheless
permitted to pay the judgment against her into the district court
clerk's office to satisfy the judgment and at the same time be relieved
from her obligations under Stover's lien. The Court reminded that
it is fundamental that "the proper place to pay a judgment
by a judgment debtor is to the clerk of the court in which the judgment
is obtained." Myers v. Miller, 134 Neb. 824, 830, 279
N.W. 778, 781 (1938). Here, Lori's payment of the judgment against
her into the office of the clerk of the district court relieved
Lori from her responsibilities with regard to Stover's attorney's
lien.
As to whether
under § 25-2214.01, the district court clerk had a duty to
Stover to preserve funds sufficient to satisfy her claimed attorney's
lien at the time the clerk transmitted the entire sum Lori had paid
into the clerk's office to her former husband, Arnold. “Given
our decisions regarding attorneys' liens, and harmonizing §§
7-108 and 25-2214.01, we conclude that when an adverse party pays
into the clerk of the district court such sums as will satisfy a
judgment awarded against that party, and prior to the payment of
such sums into the court, notice is given and an attorney's lien
has attached, the district court clerk who has notice of the lien
by virtue of its filing has a duty to retain that portion of the
deposited funds to which an attorney's lien has attached until the
‘rightful owner’ of the sums retained can be determined”
said the Court. “Under such circumstances, when the funds cannot
be fully paid out, as part of the clerk's duty to ‘manage’
such funds, the clerk of the district court should notify those
entities of whom the clerk is on notice who have claimed an interest
in the funds, of the retention of the funds, to effectuate the determination
of the ‘rightful owner.’ § 25-2214.01.”
Here, the Court
noted that both the county and district courts concluded that the
district court clerk had no duty to Stover in the absence of her
intervention in Denison v. Denison and reached such conclusion by
reliance on decisions of the Nebraska Supreme Court discussing equitable
intervention by attorneys seeking to enforce attorneys' liens. However,
given the posture of the instant case, the lower courts “misperceived”
the relevance of those decisions to the resolution of the threshold
issue of whether the clerk owed Stover a duty. “We have concluded
that the clerk had a duty to Stover to retain funds and that the
clerk should have notified the parties or individuals claiming an
interest in the retained funds” ruled the Court. “Had
that occurred, intervention by Stover at that point to prove entitlement
and the amount of her attorney's lien would have been appropriate.”
The lower courts' reliance on the intervention cases they used to
support their decisions was said to be misplaced. REVERSED AND REMANDED
WITH DIRECTIONS.
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| Child
Support Guidelines, Part D, Depreciation
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This appeal
of a dissolution decree contained all of the usual assignments of
error but was unique in containing the Nebraska Supreme Court’s
first review of child support calculation’s under an amended
Part D of the Nebraska Supreme Court’s Child Support Guidelines
regarding depreciation not being added back for Child Support Services.
Gress
v. Gress, 271 Neb. 122 (2006)
Supreme
Court Headnotes
Divorce:
- [Child
Custody:] When custody of a minor child is an issue in a proceeding
to dissolve the marriage of the child's parents, child custody is
determined by parental fitness and the child's best interests. (Child
Support: Property Division: Alimony: Attorney Fees: Appeal and Error.)
An appellate court's review in an action for dissolution of marriage
is de novo on the record to determine whether there has been an
abuse of discretion by the trial judge. This standard of review
applies to the trial court's determinations regarding custody, child
support, division of property, alimony, and attorney fees.
- [Property
Division:] (Proof.) The burden of proof to show that property
is nonmarital remains with the person making the claim in a dissolution
proceeding.
- [Attorney
Fees:] (Appeal and Error.) In an action for dissolution of marriage,
the award of attorney fees is discretionary with the trial court,
is reviewed de novo on the record, and will be affirmed in the absence
of an abuse of discretion.
Taxation.
- As a general
rule, the income of a self-employed person can be determined from
his or her income tax return.
Child Custody:
- When both
parents are found to be fit, the inquiry for the court is the best
interests of the children. ••• In determining the
best interests of the child in a custody determination, a court
must consider, at a minimum, (1) the relationship of the minor child
to each parent prior to the commencement of the action or any subsequent
hearing; (2) the desires and wishes of the minor child if of an
age of comprehension regardless of chronological age, when such
desires and wishes are based on sound reasoning; (3) the general
health, welfare, and social behavior of the minor child; and (4)
credible evidence of abuse inflicted on any family or household
member. ••• Before determining a parent's child support
obligation, there must be a determination regarding the monthly
incomes of the custodial and noncustodial parents.
- [Appeal
and Error.] Child custody determinations are matters initially
entrusted to the discretion of the trial court, and although reviewed
de novo on the record, the trial court's determination will normally
be affirmed absent an abuse of discretion.
Child Support:
- [Rules
of the Supreme Court:] The Nebraska Child Support Guidelines
offer flexibility and guidance, with the understanding that not
every child support scenario will fit neatly into the calculation
structure. (Appeal and Error.) Interpretation of the Nebraska
Child Support Guidelines presents a question of law, regarding which
an appellate court is obligated to reach a conclusion independent
of the determination reached by the court below.
- [Taxation.]
Income, for the purpose of child support, is not necessarily
synonymous with taxable income.
Property
Division.
- Under Neb.
Rev. Stat. § 42-365 (Reissue 2004), the equitable division
of property is a three-step process. The first step is to classify
the parties' property as marital or nonmarital. The second step
is to value the marital assets and marital liabilities of the parties.
The third step is to calculate and divide the net marital estate
between the parties in accordance with the principles contained
in § 42-365. ••• Property which one party brings
into the marriage is generally excluded from the marital estate.
••• Although the division of property is not subject
to a precise mathematical formula, the general rule is to award
a spouse one-third to one-half of the marital estate, the polestar
being fairness and reasonableness as determined by the facts of
each case.
Attorney
Fees.
- The award
of attorney fees depends on multiple factors that include the nature
of the case, the services performed and results obtained, the earning
capacity of the parties, the length of time required for preparation
and presentation of the case, customary charges of the bar, and
the general equities of the case.
Date Filed
and Case No.: March 3, 2006. No. S-05-007.
Internet
Address: http://court.nol.org/opinions/2006/march/mar3/s05-007.htm
Court Appealed
From: District Court for Otoe County: Daniel Bryan, Jr., Judge.
Attorneys
for the Appeal: Louie M. Ligouri, of Ligouri Law Office, for
Patrick Raymond Gress, appellant and cross-appellee. Stefanie S.
Flodman and Steven J. Flodman for Pamela Joann Gress, appellee and
cross-appellant. Gerald M. Stilmock, guardian ad litem.
Justices:
Hendry, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Participating
on Briefs: Wright, J.
Authored
By: Stephan, J.
Summary:
Patrick Raymond Gress. appeals to the Nebraska Supreme Court from
an order of the district court for Otoe County dissolving his marriage
to Pamela Joann Gress. He contested the court's order regarding
custody, child and spousal support, property division, and attorney
fees. Pamela cross-appealed, arguing that the duration of spousal
support was inadequate. The parties were married in 1988 and had
four children during the marriage. The couple's youn | |
