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The NE Law Express is available
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Nebraska
State Bar Association NE Law Express
for January 19, 2007
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| Case
Summaries |
| Attorney
Discipline, Substance Abuse |
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to ShortCuts
In this attorney
discipline case, the Nebraska Supreme Court continues the suspension
of an attorney with substance abuse problems for which he has been
successfully undergoing treatment.
State
ex rel. Counsel for Dis. v. Petersen, 272 Neb. 975 (2007)
Supreme
Court Headnotes
None
Date Filed
and Case No.: January 19, 2007. No. S-06-182.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan19/s06-182.htm
Court Appealed
From: Original action.
Attorneys
for the Appeal: State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator. Thomas M. Petersen, respondent.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Per Curiam.
Summary:
Relator, the Counsel for Discipline of the Nebraska Supreme Court,
filed formal charges against Thomas M. Petersen, respondent, alleging
unprofessional violations. Petersen was admitted to the practice
of law on 04/14/95. On 02/13/06, formal charges were filed by the
office of the Counsel for Discipline, against Petersen which set
forth three counts. The first count alleged that Timothy Diecker
hired Petersen to represent Diecker in a criminal case and that
Petersen neglected certain matters in Diecker's case, causing Diecker
to retain other counsel. The second count alleged that Christopher
Payne hired Petersen to represent him in two separate criminal cases,
as well as in a marriage dissolution action, and that Payne paid
Petersen certain funds representing advanced fees. The second count
further alleged that Petersen neglected certain matters during his
representation of Payne, causing Payne to retain other counsel;
failed to account for the time he spent on Payne's legal matters
so that Payne could determine whether Petersen earned the advanced
fees; and failed to refund unearned fees. The third count alleged
that both Diecker and Payne filed grievances against Petersen with
relator and that Petersen, despite repeated requests for information
from relator, failed to file any written responses to the grievances.
Petersen filed an answer in which he admitted the allegations in
the formal charges.
A referee was
appointed who heard evidence and recommended discipline. In his
report, the referee noted that as a result of attorney misconduct
unrelated to the instant case, Petersen is presently suspended from
the practice of law for an indefinite period of time, with no possibility
of reinstatement prior to 02/01/08. See State ex rel. Counsel
for Dis. v. Petersen, 271 Neb. 262, 710 N.W.2d 646 (2006). The
referee recommended that Petersen remain indefinitely suspended
with no possibility of reinstatement prior to 02/01/08, and that
in the event Petersen is reinstated in the future, his reinstatement
be followed by monitored probation for not less than 2 years. No
exceptions were filed to the referee's report. The Nebraska Supreme
Court granted the motion for judgment on the pleadings and the referee
presented a report regarding discipline.
The report indicated
that Petersen has been treated for and successfully completed programs
for alcohol and drug addiction. Petersen admitted he is addicted
to vodka and cocaine. He stated that in the event he returned to
practice, he would limit himself to representing only clients in
criminal cases. Since 01/17/06, he has been subjected to random
drug testing and has not tested positive during any test. On or
about February 28, Petersen entered into a monitoring contract with
the Nebraska Lawyers Assistance Program (NLAP), and a copy of the
contract was admitted into evidence. Petersen testified that he
had reimbursed Payne for any unearned fees. He also testified that
he was liquidating assets in the event he needed to reimburse any
other former clients with fee grievances. The referee noted in his
report that Petersen had been the subject of three other disciplinary
proceedings. In the instant case, the referee, in making his recommendation
regarding Petersen's discipline, stated that he found Petersen
to be sincere
and remorseful for his past behavior. While it arguably took a longer
period of time than it should have, it is clear that [Petersen]
has admitted he has a serious problem with vodka and cocaine, [and]
he has voluntarily entered and successfully completed an inpatient
treatment program.
The Court agreed
with the referee's recommendation, and we grant relator's motion
for judgment on the pleadings. “Upon due consideration of the
record, the court finds that Petersen should remain indefinitely
suspended from the practice of law with no possibility of reinstatement
until February 1, 2008. In the event Petersen seeks reinstatement
following his suspension, he will be required to show by independent
third-party proof that he has continued active participation in
a recovery program and has maintained abstinence from the use of
drugs and alcohol during the period of suspension. He will further
be required to submit a 2-year probation plan, for the approval
of this court, whereby Petersen's recovery program, his office management,
and his compliance with the Nebraska Rules of Professional Conduct
would be monitored by NLAP and the Counsel for Discipline.”
JUDGMENT OF SUSPENSION.
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| Bar
Association Application, Denial, Appeal and Error
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Due to a bar
applicant’s prior involvement in three serious incidents involving
abusive, disruptive, hostile, intemperate, intimidating, irresponsible,
threatening, and turbulent behavior where he showed complete disregard
for others as well as a lack of self-control. While two of these
incidents occurred approximately 9 years ago the most recent occurred
in 2002, while the applicant was a first-year law student, the Nebraska
Supreme Court affirmed the Nebraska State Bar Commission’s
denial of his application for admission to the bar. The Court was
also concerned with applicant's lack of candor as his admission
and description of the incidents was less than forthcoming during
his law school and bar application processes.
In
re Application of Antonini, 272 Neb. 985 (2007)
Supreme
Court Headnotes
Rules of
the Supreme Court:
- [Attorneys
at Law:] The Nebraska Supreme Court has delegated the administrative
responsibility for bar admissions solely to the Nebraska State Bar
Commission; however, the Nebraska Supreme Court remains vested with
the sole power to admit persons to the practice of law in this state
and to fix qualifications for admission to the Nebraska bar. (Appeal
and Error.) Under Neb. Ct. R. for Adm. of Attys. 15 (rev. 2000),
the Nebraska Supreme Court considers the appeal of an applicant
from a final adverse ruling of the Nebraska State Bar Commission
de novo on the record made at the hearing before the commission.
(Proof.) The Nebraska Supreme Court rules for admission of
attorneys place on the applicant the burden of proving good character
by producing documentation, reports, and witnesses in support of
the application.
Attorneys
at Law.
- A record manifesting
a significant deficiency in the honesty, trustworthiness, diligence,
or reliability of an applicant for admission to the Nebraska State
Bar may constitute a basis for denial of admission. •••
Abusive, disruptive, hostile, intemperate, intimidating, irresponsible,
threatening, or turbulent behavior is a proper basis for the denial
of admission to the bar.
Date Filed
and Case No.: January 19, 2007. No. S-34-060002.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan19/s34-060002.htm
Court Appealed
From: Original action.
Attorneys
for the Appeal: Robert W. Mullin and David S. Houghton for Charles
J. Antonini III , applicant. Jon Bruning and Tom Stine for Nebraska
State Bar Commission.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Per Curiam.
Summary:
Charles J. Antonini III appealed the decision of the Nebraska State
Bar Commission (Commission) denying his application for admission
to the Nebraska State Bar Association (Bar Association). Antonini
claimed that the Commission erred in finding that he does not possess
the present character and fitness to be admitted to the Bar Association.
Antonini obtained
his law degree from Creighton University School of Law in May 2005,
and he applied to take the July 2005 Nebraska bar examination. After
reviewing Antonini's application, the Commission permitted Antonini
to sit for the examination, pending an ongoing investigation into
his character and fitness. The Commission's investigation into Antonini's
character and fitness included an inquiry into three prior incidents
in Antonini's past that resulted in criminal charges and university
suspensions, as well as his honesty on his law school applications.
The Commission also required Antonini to undergo a psychological
and chemical dependency evaluation.
The incidents
giving rise to to questions occurred between 1997 and 2002, during
the time Antonini was living in California; then while enrolled
as an undergraduate at George Washington University in Washington,
D.C.; and, finally, while enrolled as a first year law student at
Syracuse University in New York. The opinion thereafter set out
the specifics of the three incidents and the disparity between police
reports, reports by the schools, and Antonini’s testimony before
the Commission.
Following Antonini's
suspension from Syracuse University, Antonini applied to and was
admitted to Creighton University School of Law and the Commission’s
investigation revealed some inconsistancies.
Antonini received
a passing score on the bar examination.
In his appeal
to the Nebraska Supreme Court, Antonini assigned that the Commission
erred in concluding that he does not possess the present character
and fitness to be admitted to the Bar Association.
The Court noted
Antonini has been involved in three serious incidents involving
abusive, disruptive, hostile, intemperate, intimidating, irresponsible,
threatening, and turbulent behavior. In each of these incidents,
Antonini showed complete disregard for others as well as a lack
of self-control. Two of these incidents occurred approximately 9
years ago; however, the most recent occurred in 2002, while Antonini
was a first-year law student. The Court was also concerned with
Antonini's lack of candor. “The record reflects that Antonini's
admission and description of the incidents described above have
been less than forthcoming during his law school and bar application
processes.”
The Court has
stated that a lack of candor in completing applications to the bar
may constitute a ground for a finding of lack of requisite character
and fitness. “As previously described, Antonini was less than
candid in his applications to Creighton University School of Law
when he failed to provide full disclosure of his misdemeanor record.
Antonini's explanation as to why he failed to provide full disclosure
is less than credible.” The Court said that Antonini has continually
tried to justify and gloss over his lack of candor. “We therefore
conclude that the Commission did not err in determining Antonini
should not be admitted to the Bar Association.” APPLICATION
DENIED.
|
| DUI,
"Chemical Analysis Certification of Alcohol Breath Simulator
Solution", Confrontation Clause
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to ShortCuts
Defendant in
a Driving Under the Influence of Alcohol case asserted error in
overruling his objection to admission of the document entitled "Chemical
Analysis Certification of Alcohol Breath Simulator Solution"
and in concluding that he did not have a right under the Confrontation
Clause to confront and cross-examine the person who prepared the
certificate verifying the concentration of the alcohol breath simulator
solution that was used to calibrate the breath testing device used
to test his breath. The district court and Nebraska Supreme Court
concluded that the certificate verifying the concentration of the
simulator solution is not testimonial in nature and not subject
to further Confrontation Clause analysis.
State
v. Fischer, 272 Neb. 963 (2007)
Supreme
Court Headnotes
Constitutional
Law:
- [Appeal
and Error.] An appellate court reviews de novo a trial court's
determination of the protections afforded by the Confrontation Clause
and reviews the underlying factual determinations for clear error.
- [Trial:]
(Rules of Evidence: Hearsay.) Where "testimonial"
statements are at issue, the Confrontation Clause demands that such
out-of-court hearsay statements be admitted at trial only if the
declarant is unavailable and there had been a prior opportunity
for cross-examination.
- [Hearsay.]
The initial step in a Confrontation Clause analysis is to determine
whether the statements at issue are testimonial in nature and subject
to a Confrontation Clause analysis. If the statements are nontestimonial,
then no further Confrontation Clause analysis is required.
Jury Instructions:
- [Judgments:]
(Appeal and Error.) Whether jury instructions given by a trial
court are correct is a question of law. When dispositive issues
on appeal present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below.
- [Proof:]
(Appeal and Error.) In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely affected
a substantial right of the appellant.
- [Convictions:]
(Appeal and Error.) Before an error in the giving of instructions
can be considered as a ground for reversal of a conviction, it must
be considered prejudicial to the rights of the defendant.
- [Appeal
and Error.] Jury instructions must be read as a whole, and if
they fairly present the law so that the jury could not be misled,
there is no prejudicial error.
Date Filed
and Case No.: January 19, 2007. No. S-06-069.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan19/s06-069.htm
Court Appealed
From: District Court for Cheyenne County, Kristine R. Cecava,
Judge, on appeal thereto from the County Court for Cheyenne County,
Charles Plantz, Judge.
Attorneys
for the Appeal: David W. Jorgensen for Thomas L. Fischer, appellant.
Jon Bruning and J. Kirk Brown for State of Nebraska, appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Miller-Lerman, J.
Summary:
Thomas L. Fischer was convicted in the county court for Cheyenne
County of driving under the influence in violation of Neb. Rev.
Stat. § 60-6,196 (Supp. 2003). The State filed a complaint
in county court charging that on 06/18/04, Fischer was DUI in Sidney,
Nebraska pursuant to Neb. Rev. Stat. § 60-6,196(1)(c) (When
such person has a concentration of eight-hundredths of one gram
or more by weight of alcohol per two hundred ten liters of his or
her breath.) Fischer pled not guilty and demanded a jury trial,
prior to which he filed a motion in limine seeking an order precluding
the State from offering any evidence regarding the chemical test
of Fischer's breath unless the witness who prepared the simulator
solution, which was used to calibrate the breath testing device
was present in court and available for cross-examination. Fischer
argued that the validity of the substance used to calibrate the
breath testing device was critical to the ability of the device
to give accurate results and that any assertion as to the validity
of the substance was testimonial in nature and therefore subject
to confrontation and cross-examination.
After a hearing,
the county court determined that title 177 of the Nebraska Administrative
Code governed the admissibility of the chemical test results and
that therefore, the foundation requirements were statutory and not
evidentiary and overruled Fischer's motion in limine ( provided
the State could show sufficient foundation for the admissibility
of the test results under title 177.) The jury found Fischer guilty,
and the county court entered judgment based on the verdict. Fischer
appealed his conviction to the district court which rejected Fischer's
argument that he had a right under the Confrontation Clause to cross-examine
the person who signed the certificate regarding the preparation
of the simulator solution. The district court found that the State
had shown compliance with title 177 and that therefore, the breath
test results were admissible. The district court further concluded
that the reasonable doubt instruction given by the county court
was an accurate statement of law. Having rejected his arguments,
the district court affirmed Fischer's conviction. Fischer appeals
the district court's order affirming his conviction in county court
and the Nebraska Supreme Court issued this opinion.
Fischer assigned
error to the admission of exhibit 11 arguing it was admitted in
violation of his rights under the Confrontation Clause. Exhibit
11, is the document entitled "Chemical Analysis Certification
of Alcohol Breath Simulator Solution."
The Court said
the initial step in Confrontation Clause analysis is to determine
whether the statements at issue are testimonial in nature and subject
to a Confrontation Clause analysis. If the statements are nontestimonial,
then no further Confrontation Clause analysis is required. Based
on a framework of United State Supreme Court precedent, the Nebraska
Supreme Court determined that the statements at issue in this case
were not "testimonial." The statements made in the certificate
were required to be made as an administrative function whether or
not the statements would eventually be used in any criminal prosecution.
Exhibit 11 was prepared in a routine manner without regard to whether
the certification related to any particular defendant. “The
statements made in exhibit 11 were too attenuated from the prosecution
of the charges against Fischer for the statements to be ‘testimonial’
in the sense required under Crawford (Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), Davis
(Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165
L. Ed. 2d 224 (2006)), and the Confrontation Clause.” The Court
concluded that the statements in exhibit 11 were nontestimonial
and that therefore, the admission of exhibit 11 was not subject
to further Confrontation Clause analysis and did not violate Fischer's
rights under the Confrontation Clause.
Fischer also
asserted that the district court erred in failing to find error
in the county court's reasonable doubt instruction, which varied
from the pattern instruction that he proposed. The Court concluded
that although, in general, a trial court should give the pattern
instruction, the instruction given in this case was not prejudicial
to Fischer. The instruction given by the county court generally
followed the pattern instruction provided in NJI2d Crim. 2.0 except
that the words "once convinced" were added by the
trial court to the second sentence so that the sentence read: "Proof
beyond a reasonable doubt is proof so convincing that, once convinced,
you would rely and act upon it without hesitation in the more serious
and important transactions of life." (Emphasis supplied.) Fischer
argued that the instruction given by the county court created a
lower standard for reasonable doubt than does the pattern instruction
because it requires only that the jury be "convinced"
and not "convinced beyond a reasonable doubt."
The Court stated
that although it has stated that the Nebraska pattern jury instructions
are to be used whenever applicable, it has recognized that a failure
to follow the pattern jury instructions does not automatically require
reversal. “Reading the reasonable doubt instruction given by
the county court as a whole, we do not find the instruction to be
unfair or misleading. Although we do not necessarily find the addition
of the words ‘once convinced’ to be an improvement to
the language of the pattern instruction, the addition does not meaningfully
change the instruction, nor does it lower the standard of proof.”
They found that the instructions given by the county court made
clear that the State is held to a standard of proof beyond a reasonable
doubt, and the instruction at issue did not lower the standard of
proof because the instruction defines "reasonable doubt"
and does not impose a different standard of proof. “The reasonable
doubt instruction was not prejudicial to Fischer and does not require
reversal of his conviction.” AFFIRMED.
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| Juror
Instructions, Appeal and Error
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Thus appeal
grew from the conviction for five counts of first degree murder
growing from the botched bank robbery in Norfolk which led to the
homicides. The defendant here was the driver and was not sentenced
to death. The Nebraska Supreme Court affirms over assignments of
error concerning juror qualifications and some testimony allowed
in over objections.
State
v. Rodriguez, 272 Neb. 930 (2007)
Supreme
Court Headnotes
Juror Qualifications.
- If a person
called as a juror has formed or expressed an opinion as to the guilt
or innocence of the accused and such opinion was founded upon conversations
with witnesses of the transactions or reading reports of their testimony
or hearing them testify, the dismissal of such a juror is mandatory.
But if the opinion is founded instead on rumor, newspaper reports,
or hearsay, and it shall satisfactorily appear that the character
of such opinion is such that it will not interfere with the juror's
rendering an impartial verdict, it is not error to admit him or
her to the jury. ••• The true object of challenges,
either peremptory or for cause, is to enable the parties to avoid
disqualified persons and secure an impartial jury. When that end
is accomplished, there can be no just ground for complaint against
the rulings of the court as to the competency of jurors. •••
The law does not require that a juror be totally ignorant of the
facts and issues involved; it is sufficient if the juror can lay
aside his or her impression or opinions and render a verdict based
upon the evidence.
Trial:
- [Juries:]
(Appeal and Error.) The trial court's decision to retain or
reject a venireperson as a juror is discretionary and will be reversed
only when clearly wrong.
Jurors:
- [Appeal
and Error.] Where a party's peremptory challenges are exhausted,
the erroneous overruling of a challenge for cause will not warrant
reversal unless it is shown on appeal that an objectionable juror
was forced upon the challenging party and sat upon the jury after
the party exhausted his or her peremptory challenges.
Appeal and
Error.
- To be considered
by an appellate court, an appellant must both assign and specifically
argue any alleged error.
Venue:
- [Appeal
and Error.] A motion for change of venue is addressed to the
discretion of the trial judge, whose ruling will not be disturbed
absent an abuse of discretion. ••• A trial court
abuses its discretion in denying a motion to change venue when a
defendant establishes that local conditions and pretrial publicity
make it impossible to secure a fair and impartial jury.
- [Juries:]
(Presumptions: Due Process: Proof.) Mere jury exposure to news
accounts of a crime does not presumptively deprive a criminal defendant
of due process. Instead, to warrant a change of venue, a defendant
must show the existence of pervasive misleading pretrial publicity.
(Proof.) A court must evaluate several factors in determining
whether the defendant has met the burden of showing that pretrial
publicity has made it impossible to secure a fair trial and impartial
jury. These factors include (1) the nature of the publicity, (2)
the degree to which the publicity has circulated throughout the
community, (3) the degree to which venue could be changed, (4) the
length of time between the dissemination of the publicity complained
of and the date of the trial, (5) the care exercised and ease encountered
in the selection of the jury, (6) the number of challenges exercised
during voir dire, (7) the severity of the offenses charged, and
(8) the size of the area from which the venire was drawn.
- [Juror
Qualifications.] Voir dire examination provides the best opportunity
to determine whether a court should change venue.
Constitutional
Law:
- [Miranda
Rights:] (Self-Incrimination.) Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the
use of statements derived during custodial interrogation unless
the prosecution demonstrates the use of procedural safeguards that
are effective to secure the privilege against self-incrimination.
Miranda Rights:
- [Words
and Phrases.] Under the Miranda rule, a "custodial
interrogation" takes place when questioning is initiated by
law enforcement officers after one has been taken into custody or
is otherwise deprived of one's freedom of action in any significant
way. ••• Interrogation occurs when a person is placed
under a compulsion to speak. ••• Interrogation does
not include a course of inquiry related and responsive to a volunteered
remark.
- [Police
Officers and Sheriffs:] (Words and Phrases.) The term "interrogation"
under Miranda refers not only to express questioning, but
also to any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response
from the suspect.
- [Evidence.]
Statements made in a conversation initiated by the accused or spontaneously
volunteered by the accused are not the result of interrogation and
are admissible.
Criminal
Law:
- [Confessions:]
(Appeal and Error.) In determining whether the State has shown
the admissibility of custodial statements by the requisite degree
of proof, an appellate court will accept the factual determination
and credibility choices made by the trial judge unless they are
clearly erroneous and, in so doing, will look to the totality of
the circumstances.
- [Trial:]
(Juries: Appeal and Error.) In a jury trial of a criminal case,
harmless error exists when there is some incorrect conduct by the
trial court which, on review of the entire record, did not materially
influence the jury in reaching a verdict adverse to a substantial
right of the defendant.
Witnesses:
- [Impeachment:]
(Prior Statements.) Prior inconsistent statements of a witness
are admissible as impeachment evidence.
Rules of
Evidence:
- [Proof:]
(Appeal and Error.) Neb. Rev. Stat. § 27-103(1)(b) (Reissue
1995) allows an appellate court to find error in an exclusionary
ruling when the substance of the evidence was apparent from the
context even without an offer of proof. (Prior Statements.)
Prior inconsistent statements of a witness are not admissible as
substantive evidence, unless they are otherwise admissible under
the Nebraska Evidence Rules.
Evidence:
- [Proof.]
When a trial court excludes evidence, the better trial practice
is always to make an offer of proof.
Verdicts:
- [Juries:]
(Appeal and Error.) Harmless error review looks to the basis
on which the jury actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unattributable
to the error.
Date Filed
and Case No.: January 19, 2007. No. S-04-631.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan19/s04-631.htm
Court Appealed
From: District Court for Madison County: Robert B. Ensz, Judge.
Attorneys
for the Appeal: Mark A. Johnson for Gabriel Rodriguez, appellant.
Jon Bruning and Susan J. Gustafson for State of Nebraska, appellee.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ., and Sievers, Judge.
Not Participating:
Heavican, C.J.
Authored
By: Connolly, J.
Summary:
On 09/26/02, Jose Sandoval, Jorge Galindo, and Erick Vela entered
a bank in Norfolk, Madison County, Nebraska. They shot and killed
four bank employees and a customer in a botched robbery. Gabriel
Rodriguez, Sandoval's half brother, acted as the "scout."
A jury convicted Gabriel Rodriguez of five counts of first degree
murder and five counts of use of a weapon to commit a felony. The
district court sentenced Rodriguez to five terms of life imprisonment
for the murders and five terms of 10 to 20 years' imprisonment for
the weapons convictions, to be served consecutively. He appealed,
contending the district court erred in several respects. The dominant
issue wass whether the court erred in not striking several jurors
for cause.
Under Nebraska
law, jurors who have formed or expressed opinions that the accused
is guilty founded on witness accounts of the crime--as opposed to
newspaper reports, hearsay, or rumor--must be excused for cause.
Despite extensive publicity, no jurors expressed an opinion regarding
Rodriguez' guilt founded on witness accounts. On appeal, Rodriguez
contended that several of the jurors were incompetent to serve because
they were exposed to excessive pretrial publicity detailing the
crimes and contended that under Neb. Rev. Stat. § 29-2006(2)
(Reissue 1995), these jurors should have been excused. That statute
disqualifies jurors who have formed or expressed opinions of guilt
founded on witness accounts.
The murders
generated extensive publicity in Madison County. The district court
conducted extensive voir dire to determine whether Rodriguez could
obtain a fair and impartial jury. The district court clerk's office
sent jury questionnaires to 300 prospective jurors. Many if not
all the prospective jurors' responses indicated that they had had
some exposure to news accounts of the killings. Despite this, about
63 percent responded that they could render a verdict from only
the evidence and testimony presented at trial. During voir dire,
60 people were individually questioned to obtain a panel of 42,
from which the final jury and alternates were selected.
Rodriguez contended
that the court should have removed several jurors for cause because
of their answers to the questionnaires and their answers during
voir dire. Here, Rodriguez contended that six jurors were incompetent
under Neb. Rev. Stat. § 29-2006(2). “We disagree”
ruled the Court. In the voir dire, Jurors Nos. 7, 27, 39, and 44
all unequivocally stated that they had not formed or expressed opinions
regarding Rodriguez' guilt or innocence. :Section 29-2006(2) does
not disqualify jurors unless they have done so.” Therefore,
the statute and Flege v. State, 93 Neb. 610, 142 N.W. 276
(1913), an opinion discussed un the opinion did not apply.
In addition
to jury members, Rodriguez argues prospective jurors Nos. 12, 19,
20, and 30 should have been struck under § 29-2006(2). Rodriguez
used peremptory challenges to strike prospective jurors Nos. 12,
19, and 20, and the State used a peremptory challenge to strike
prospective juror No. 30. Rodriguez also contended the district
court should have excused prospective jurors Nos. 9, 58, and 61
because they expressed opinions of guilt and stated that they would
only "try" to be impartial, not that they would or could.
Peremptory challenges were used to remove those jurors. “Here,”
wrote the Court “Rodriguez used all of his peremptory challenges.
He did not, however, argue that he would have used his peremptory
challenges on any of the jurors if he had not used them on these
prospective jurors. He contended for the first time at oral argument
that he would have used his challenges on other jurors, but he did
not argue that point in his brief.” Because Rodriguez did not
argue that this alleged error was prejudicial, the Court did not
consider whether the trial court abused its discretion in retaining
the prospective jurors.
Because of extensive
pretrial coverage, Rodriguez contended that the district court erred
in not granting his motion for a change of venue. Rodriguez also
argued that the number of prospective jurors who responded negatively
to the questionnaires and at voir dire shows that he could not receive
a fair trial in Madison County. Here, although the media coverage
of these killings was extensive, the Court found no indication that
it was misleading. While the record contained numerous newspaper
articles and radio and television broadcasts covering the crimes,
the stories were generally factual and Rodriguez does not contend
that they displayed any hostility or animosity toward him. “In
addition, many of the articles Rodriguez points to as prejudicial
relate only peripherally to his case--covering Nebraska's death
penalty or the cost of the murder trials--and some do not even mention
his name.” Moreover, the Court found that the district court,
after conducting voir dire, was able to seat an impartial jury.
While the jurors did acknowledge exposure to the media, the law
does not require that a juror be totally ignorant of the facts and
issues involved; it is sufficient if the juror can lay aside his
or her impression or opinions and render a verdict based upon the
evidence. The trial court did not abuse its discretion in denying
the change of venue.
After police
arrested Rodriguez, he requested to speak with an officer. Rodriguez
immediately made several statements to the officer without having
his Miranda rights entirely read, and then requested that
the officer leave. Before trial, Rodriguez moved to suppress the
interview, which the district court sustained, regarding everything
that Rodriguez said after he told the officer to leave. But the
court found that before Rodriguez told the officer to leave, his
statements were voluntary. At trial, the court allowed the officer
(Thorson) to testify regarding the conversation that took place
before Rodriguez' request. At trial, Rodriguez' girl friend's testimony
contradicted the statement he made regarding why he was at the bank
on the morning of the murders. Rodriguez argued that this statement
should have been suppressed because Thorson engaged him in a conversation
meant to solicit information without reading him Miranda
warnings. Here, the record showed Rodriguez was clearly in custody
during his interview with Thorson as he was arrested, placed him
in handcuffs, and he was not free to leave the police station. Despite
this, the videotape and transcript of the interview do not show
that Rodriguez was compelled to speak because of interrogation.
Rodriguez' remarks were made in an abrupt, rambling manner and not
in response to any questioning by Thorson. When Thorson attempted
to read the Miranda warnings, Rodriguez interrupted him by
complaining about Rodriguez' and his girl friend's appearances on
television. The Court’s review of the videotape revealed that
Thorson then made several remarks that seemed focused toward calming
Rodriguez rather than eliciting information. Rodriguez' statements
were spontaneous, excited remarks that were not the result of any
compulsion by the police.
Cortney Barritt,
Galindo's girl friend, testified at trial that she knew of the attempted
bank robbery before it took place and, more specifically, that she
knew Rodriguez was involved. Further, Barritt testified she had
told her friend, Claudia Solis, about the planned robbery and had
also told her that Rodriguez was involved. Rodriguez attempted to
elicit testimony from Solis that Barritt had never mentioned Rodriguez'
involvement to her. The trial court sustained objections in which
Rodriguez attempted to impeach Barritt through her prior inconsistent
statement to Solis. The State contended that because Rodriguez did
not make an offer of proof to show what the testimony would have
been, he cannot raise the exclusion of the evidence as error.
Here, the Court
found that the exclusion of evidence did affect Rodriguez' substantial
right because he was prevented from impeaching an adverse witness.
Thus, the Court considered whether an offer of proof was necessary
to preserve the error or if the substance of the evidence was apparent
to the court from the context of the question. “Although it
is a close call,”said the Court, “we believe it is apparent
from the record that Rodriguez was attempting to impeach Barritt.”
The substance of Solis' testimony was apparent, because she answered
defense counsel's question regarding Barritt's prior inconsistent
statement. The Court believed it was apparent that Rodriguez was
attempting to use Solis' testimony for impeachment, and thus it
was not hearsay. “Obviously, when a trial court excludes evidence,
the better trial practice is always to make an offer of proof”
they wrote. “But because it was apparent that Rodriguez was
attempting to impeach Barritt, an offer of proof was not required.
And because the evidence was not hearsay, we hold that the trial
court erred in excluding it.” The Court ruled however, the
error was not fatal to the State's case because it was harmless.
Here, other evidence supported the jury's verdict. “We conclude
that the verdict rendered was surely unattributable to the error.”
Finally, the
Court concluded that Rodriguez' life sentences were constitutional
under the valid version of the sentencing statute. AFFIRMED.
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| Jury
Instructions, Lesser Included Offense
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Back
to ShortCuts
Defendant here
was convicted of intentional child abuse resulting in the death
of her 22-month-old son, who was found dead in their residence after
he had placed a staple in an electrical outlet and had been electrocuted.
Evidence at trial was that the defendant had left her child in the
care of her roommates caring for him sporadically over the three
days preceding his death. The jury was instructed that it could
find defendant (1) guilty of intentional child abuse resulting in
death, (2) guilty of intentional child abuse, or (3) not guilty.
Defendant's request for an instruction on negligent child abuse
was refused. The Nebraska Supreme Court ruled that the trial court's
refusal to give a jury instruction that included the lesser-included
offense of negligent child abuse was reversible error and reversed
and remanded for a new trial.
State
v. Blair, 272 Neb. 951 (2007)
Supreme
Court Headnotes
Lesser-Included
Offenses.
Whether a crime
is a lesser-included offense is determined by a statutory elements
approach and is a question of law.
- [Jury Instructions:]
(Evidence.) A court must instruct on a lesser-included offense
if (1) the elements of the lesser offense for which an instruction
is requested are such that one cannot commit the greater offense
without simultaneously committing the lesser offense and (2) the
evidence produces a rational basis for acquitting the defendant
of the greater offense and convicting the defendant of the lesser
offense.
Jury Instructions:
- [Judgments:]
(Appeal and Error.) Whether jury instructions given by a trial
court are correct is a question of law. When dispositive issues
on appeal present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below.
- [Proof:]
(Appeal and Error.) To establish reversible error from a court's
refusal to give a requested jury instruction, an appellant has the
burden to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court's refusal to give
the tendered instruction.
- [Convictions:]
(Appeal and Error.) Before an error in the giving of jury instructions
can be considered as a ground for reversal of a conviction, it must
be considered prejudicial to the rights of the defendant.
- [Lesser-Included
Offenses.] Error in failing to instruct the jury on a lesser-included
offense is harmless when the jury necessarily decides the factual
questions posed by the omitted instructions adversely to defendant
under other properly given instructions.
Date Filed and Case No.: January 19, 2007. No. S-05-544.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan19/s05-544.htm
Court Appealed
From: District Court for Lancaster County: Bernard J. McGinn,
Judge.
Attorneys
for the Appeal: Dennis R. Keefe, Robert G. Hays, and Timothy
M. Eppler for Brandy M. Blair, appellant. Jon Bruning and James
D. Smith for State of Nebraska, appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Wright, J.
Summary:
Brandy M. Blair (Blair) was convicted of intentional child abuse
resulting in the death of her 22-month-old son and was sentenced
to 30 to 40 years in prison. On 06/09/04 Christian L. Reifler (Christian)
was found dead in the Lincoln, Nebraska, residence where he and
Blair lived. It appeared that Christian had placed a staple in an
electrical outlet and had been electrocuted. At the time of Christian's
death, Blair's brother Jason Blair (Jason), Elizabeth Frederick
(Liz), Joshua Jones (Josh), and Edward Simpson, Jr. (Eddie), were
living in the house with Blair and Christian. Testimony was offered
that during the 3 days preceding Christian's death, Blair was visiting
friends and smoking methamphetamine, and that she did not see Christian
between Monday evening, 06/07/04 and Wednesday morning, June 9.
Testimony at trial was that Christian was cared for sporadically
by Blair in the days prior to his death.
That Wednesday,
Eddie was asked by Blair if he and Jason would watch Christian while
she went to a lake with a friend. Blair said Eddie agreed as long
as she was home by 7 p.m. When Jason and Eddie returned home, Blair
told Jason that if he and Eddie wanted to go out later, Josh and
Liz could watch Christian until Blair got home. Liz said Blair asked
her to watch Christian if she was not home by the time Eddie and
Jason left for the bar. Josh said he told Blair to go upstairs and
check on Christian, give him something to drink, and change his
diaper before she left. Blair went upstairs, and when she came back
downstairs, Eddie asked if she had checked on Christian. Blair said
he was fine. Liz also testified that Blair had checked on Christian
and told Liz he was fine. Eddie said that when Blair left, she looked
at everyone and asked if they would keep an eye on Christian while
she went to the lake. When Blair left the house, Jason, Josh, Liz,
and Eddie were all present. Thirty to forty-five minutes after Blair
left, Josh asked Jason and Eddie to go get Christian. Eddie opened
the door to Christian's bedroom and found Christian lying still
on the floor. Eddie screamed that Christian was not moving or breathing,
and he ran back downstairs to call the 911 emergency dispatch service.
The roommates tried to administer CPR. A firefighter paramedic arrived
and found Christian face down in his room. He had no pulse, and
rigor mortis had set in (the fireman testified that rigor mortis
usually occurs between 4 to 6 hours after death.) An autopsy determined
that Christian died from electrocution and was also severely dehydrated
at the time of his death. Jason and Eddie testified that they did
not care for Christian between June 7 and 9, 2004. Liz fixed him
nachos on Monday at noon and gave him a drink on Tuesday night but
provided no other care during the 3-day period. Blair said she "[j]ust
assumed" that someone else had fed Christian while she was
gone because "[t]hey've all taken care of him before . . .
."
At trial, the
jury was instructed that it could find Blair (1) guilty of intentional
child abuse resulting in death, (2) guilty of intentional child
abuse, or (3) not guilty. Blair's request for an instruction on
negligent child abuse was refused. She appealed her conviction and
sentence to the Nebraska Supreme Court.
On appeal, Blair
claimed the trial court erred in failing to instruct the jury that
negligent child abuse is a lesser-included offense of intentional
child abuse and in failing to instruct on the definition of negligence.
The Court noted that the dispositive issue in this case, was whether
an instruction on negligent child abuse was warranted by the evidence.
Here, the jury was given a step instruction and directed to first
consider the crime of intentional child abuse resulting in death.
If the State did not prove each element beyond a reasonable doubt,
the jury was to proceed to the crime of intentional child abuse.
If that crime was not so proved, then the jury was directed to find
Blair not guilty of either crime. Blair proposed a jury instruction
that included possible verdicts of intentional child abuse resulting
in death, intentional child abuse, and negligent child abuse. The
proposed instruction also included step instruction language. The
trial court refused to give the proposed instruction including negligent
child abuse and refused to give an instruction defining negligence.
The Court found
that here, Blair could not have committed the offense of intentional
child abuse without also having committed the offense of negligent
child abuse. “The conduct is the same.” They concluded
the evidence provided at least a rational basis for the jury to
acquit Blair of intentional child abuse and convict her of negligent
child abuse. “This is not to say that the jury would necessarily
have believed the evidence presented by Blair. However, such evidence
provided a rational basis for the jury to potentially find that
the abuse was committed negligently and not knowingly and intentionally.”
Here, Christian
died as a result of touching a staple while it was inserted into
an electrical outlet. Electrocution appeared to have occurred because
both of his hands were touching the staple and current flowed across
his chest and stopped his heart. There was evidence that Blair assumed
someone in the house was caring for Christian because the adults
had taken care of him before. She claimed she had asked the other
adults to take care of Christian while she was away from the house.
The evidence was sufficient to warrant a finding by the jury that
Blair negligently caused or permitted Christian to be placed in
a situation that endangered his life and that as a result, he died.
The instructions as given directed the jury to consider whether
Blair's intentional actions caused Christian's death. The jury was
not directed to consider whether Blair's actions were negligent.
The jury was given the choice of determining whether Blair's intentional
conduct did or did not result in the death of Christian or of finding
that Blair was not guilty. The jury was not permitted to consider
whether Blair's conduct was negligent as opposed to intentional.
The jury was not permitted to consider whether Blair negligently
caused or permitted Christian to be placed in a situation that resulted
in his death. “In the case at bar, the jury was not given the
opportunity to consider whether Blair acted negligently and the
failure to instruct on the elements of negligent child abuse was
not harmless error. We therefore reverse the judgment of conviction
and remand the cause for a new trial.” REVERSED AND REMANDED
FOR A NEW TRIAL.
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| Negligent
Child Abuse
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Back
to ShortCuts
Defendant here
was convicted of intentional child abuse resulting in the death
of her 22-month-old son, who was found dead in their residence after
he had placed a staple in an electrical outlet and had been electrocuted.
Evidence at trial was that the defendant had left her child in the
care of her roommates caring for him sporadically over the three
days preceding his death. The jury was instructed that it could
find defendant (1) guilty of intentional child abuse resulting in
death, (2) guilty of intentional child abuse, or (3) not guilty.
Defendant's request for an instruction on negligent child abuse
was refused. The Nebraska Supreme Court ruled that the trial court's
refusal to give a jury instruction that included the lesser-included
offense of negligent child abuse was reversible error and reversed
and remanded for a new trial.
State
v. Blair, 272 Neb. 951 (2007)
Supreme
Court Headnotes
Lesser-Included
Offenses.
Whether a crime
is a lesser-included offense is determined by a statutory elements
approach and is a question of law.
- [Jury Instructions:]
(Evidence.) A court must instruct on a lesser-included offense
if (1) the elements of the lesser offense for which an instruction
is requested are such that one cannot commit the greater offense
without simultaneously committing the lesser offense and (2) the
evidence produces a rational basis for acquitting the defendant
of the greater offense and convicting the defendant of the lesser
offense.
Jury Instructions:
- [Judgments:]
(Appeal and Error.) Whether jury instructions given by a trial
court are correct is a question of law. When dispositive issues
on appeal present questions of law, an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
of the court below.
- [Proof:]
(Appeal and Error.) To establish reversible error from a court's
refusal to give a requested jury instruction, an appellant has the
burden to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court's refusal to give
the tendered instruction.
- [Convictions:]
(Appeal and Error.) Before an error in the giving of jury instructions
can be considered as a ground for reversal of a conviction, it must
be considered prejudicial to the rights of the defendant.
- [Lesser-Included
Offenses.] Error in failing to instruct the jury on a lesser-included
offense is harmless when the jury necessarily decides the factual
questions posed by the omitted instructions adversely to defendant
under other properly given instructions.
Date Filed and Case No.: January 19, 2007. No. S-05-544.
Internet
Address: http://www.court.state.ne.us/opinions/2007/january/jan19/s05-544.htm
Court Appealed
From: District Court for Lancaster County: Bernard J. McGinn,
Judge.
Attorneys
for the Appeal: Dennis R. Keefe, Robert G. Hays, and Timothy
M. Eppler for Brandy M. Blair, appellant. Jon Bruning and James
D. Smith for State of Nebraska, appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Wright, J.
Summary:
Brandy M. Blair (Blair) was convicted of intentional child abuse
resulting in the death of her 22-month-old son and was sentenced
to 30 to 40 years in prison. On 06/09/04 Christian L. Reifler (Christian)
was found dead in the Lincoln, Nebraska, residence where he and
Blair lived. It appeared that Christian had placed a staple in an
electrical outlet and had been electrocuted. At the time of Christian's
death, Blair's brother Jason Blair (Jason), Elizabeth Frederick
(Liz), Joshua Jones (Josh), and Edward Simpson, Jr. (Eddie), were
living in the house with Blair and Christian. Testimony was offered
that during the 3 days preceding Christian's death, Blair was visiting
friends and smoking methamphetamine, and that she did not see Christian
between Monday evening, 06/07/04 and Wednesday morning, June 9.
Testimony at trial was that Christian was cared for sporadically
by Blair in the days prior to his death.
That Wednesday,
Eddie was asked by Blair if he and Jason would watch Christian while
she went to a lake with a friend. Blair said Eddie agreed as long
as she was home by 7 p.m. When Jason and Eddie returned home, Blair
told Jason that if he and Eddie wanted to go out later, Josh and
Liz could watch Christian until Blair got home. Liz said Blair asked
her to watch Christian if she was not home by the time Eddie and
Jason left for the bar. Josh said he told Blair to go upstairs and
check on Christian, give him something to drink, and change his
diaper before she left. Blair went upstairs, and when she came back
downstairs, Eddie asked if she had checked on Christian. Blair said
he was fine. Liz also testified that Blair had checked on Christian
and told Liz he was fine. Eddie said that when Blair left, she looked
at everyone and asked if they would keep an eye on Christian while
she went to the lake. When Blair left the house, Jason, Josh, Liz,
and Eddie were all present. Thirty to forty-five minutes after Blair
left, Josh asked Jason and Eddie to go get Christian. Eddie opened
the door to Christian's bedroom and found Christian lying still
on the floor. Eddie screamed that Christian was not moving or breathing,
and he ran back downstairs to call the 911 emergency dispatch service.
The roommates tried to administer CPR. A firefighter paramedic arrived
and found Christian face down in his room. He had no pulse, and
rigor mortis had set in (the fireman testified that rigor mortis
usually occurs between 4 to 6 hours after death.) An autopsy determined
that Christian died from electrocution and was also severely dehydrated
at the time of his death. Jason and Eddie testified that they did
not care for Christian between June 7 and 9, 2004. Liz fixed him
nachos on Monday at noon and gave him a drink on Tuesday night but
provided no other care during the 3-day period. Blair said she "[j]ust
assumed" that someone else had fed Christian while she was
gone because "[t]hey've all taken care of him before . . .
."
At trial, the
jury was instructed that it could find Blair (1) guilty of intentional
child abuse resulting in death, (2) guilty of intentional child
abuse, or (3) not guilty. Blair's request for an instruction on
negligent child abuse was refused. She appealed her conviction and
sentence to the Nebraska Supreme Court.
On appeal, Blair
claimed the trial court erred in failing to instruct the jury that
negligent child abuse is a lesser-included offense of intentional
child abuse and in failing to instruct on the definition of negligence.
The Court noted that the dispositive issue in this case, was whether
an instruction on negligent child abuse was warranted by the evidence.
Here, the jury was given a step instruction and directed to first
consider the crime of intentional child abuse resulting in death.
If the State did not prove each element beyond a reasonable doubt,
the jury was to proceed to the crime of intentional child abuse.
If that crime was not so proved, then the jury was directed to find
Blair not guilty of either crime. Blair proposed a jury instruction
that included possible verdicts of intentional child abuse resulting
in death, intentional child abuse, and negligent child abuse. The
proposed instruction also included step instruction language. The
trial court refused to give the proposed instruction including negligent
child abuse and refused to give an instruction defining negligence.
The Court found
that here, Blair could not have committed the offense of intentional
child abuse without also having committed the offense of negligent
child abuse. “The conduct is the same.” They concluded
the evidence provided at least a rational basis for the jury to
acquit Blair of intentional child abuse and convict her of negligent
child abuse. “This is not to say that the jury would necessarily
have believed the evidence presented by Blair. However, such evidence
provided a rational basis for the jury to potentially find that
the abuse was committed negligently and not knowingly and intentionally.”
Here, Christian
died as a result of touching a staple while it was inserted into
an electrical outlet. Electrocution appeared to have occurred because
both of his hands were touching the staple and current flowed across
his chest and stopped his heart. There was evidence that Blair assumed
someone in the house was caring for Christian because the adults
had taken care of him before. She claimed she had asked the other
adults to take care of Christian while she was away from the house.
The evidence was sufficient to warrant a finding by the jury that
Blair negligently caused or permitted Christian to be placed in
a situation that endangered his life and that as a result, he died.
The instructions as given directed the jury to consider whether
Blair's intentional actions caused Christian's death. The jury was
not directed to consider whether Blair's actions were negligent.
The jury was given the choice of determining whether Blair's intentional
conduct did or did not result in the death of Christian or of finding
that Blair was not guilty. The jury was not permitted to consider
whether Blair's conduct was negligent as opposed to intentional.
The jury was not permitted to consider whether Blair negligently
caused or permitted Christian to be placed in a situation that resulted
in his death. “In the case at bar, the jury was not given the
opportunity to consider whether Blair acted negligently and the
failure to instruct on the elements of negligent child abuse was
not harmless error. We therefore reverse the judgment of conviction
and remand the cause for a new trial.” REVERSED AND REMANDED
FOR A NEW TRIAL.
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