Articles Posted in Criminal Law

The Supreme Court affirmed the district court’s dismissal of Appellant’s motion for new trial claiming newly discovered evidence, holding that Appellant failed to satisfy the timeliness requirements of Neb. Rev. Stat. 29-2103(4). In 2010, Appellant was convicted of second degree assault and use of a weapon to commit a felony and found to be a habitual criminal. In 2016, Appellant filed a second motion for new trial claiming newly discovered evidence under Neb. Rev. Stat. 29-2101(5). The district court concluded that Appellant was not entitled to a new trial based on newly discovered evidence because his motion and supporting documents failed to set forth sufficient facts. The Supreme Court held (1) the proper standard of review to apply when reviewing a trial court’s dismissal of a motion for a new trial without conducting an evidentiary hearing is de novo on the record; and (2) this court’s de novo review of Appellant’s motion and supporting documents demonstrated that dismissal of the motion without a hearing was proper under Neb. Rev. Stat. 29-2102(2). View "State v. Cross" on Justia Law

Defendant moved to vacate his conviction for one count of assault in the first degree and withdraw his plea of no contest to the charge, arguing that the district court erred by failing to properly advise him of the immigration consequences of conviction before accepting his plea. The district court overruled Defendant’s motion to withdraw his plea of no contest, concluding that that Defendant was advised of an immigration consequence of his plea during the plea colloquy. The Supreme Court affirmed, holding (1) under State v. Yos-Chiguil, 772 N.W.2d 574 (Neb. 2009), Defendant proved that instead of reciting the advisement set out in Neb. Rev. Stat. 29-1819.02(1), the district court improvised an advisement, and therefore, Defendant established the first Yos-Chiguil factor; but (2) Defendant failed to establish the second Yos-Chiguil factor entitling him to relief, that he was facing an immigration consequence that was not included in the advisement actually given. Therefore, the district court did not abuse its discretion in overruling Defendant’s motion to withdraw his plea. View "State v. Gach" on Justia Law

Defendant, who was charged with strangulation of his girlfriend, posted a $5,000 appearance bond. Thereafter, defendant assigned the bond funds to his attorney. The State subsequently filed an affidavit of lien for overdue child support. After Defendant was convicted of the crime for which he was charged he filed a motion to release the funds to his attorney. The district court overruled the motion. Defendant appealed. The Supreme Court dismissed the appeal as premature, holding that because the district court’s order did not affect a substantial right, it was not a final, appealable order. View "State v. McColery" on Justia Law

A passenger who threw beer out of the window of a vehicle fleeing from law enforcement was not an innocent third party. Dillon Fales and Bryant Irish - both minors - had consumed beer at a party and then left in a pickup truck, which Irish drove. When a law enforcement officer activated his emergency lights in an attempt to initiate a traffic stop, Irish accelerated the pickup. Fales then threw an unopened thirty-pack box of beer out of the window. The pickup eventually left the roadway and crashed, leaving Fales paralyzed from the chest down. False sued the County of Staton, alleging that he was an innocent third party and that the County was strictly liable to him by operation of Neb. Rev. Stat. 13-911. The district court entered judgment in favor of the County, concluding that False failed to sustain his burden to prove that he qualified as an innocent third party. The Supreme Court affirmed, holding that the district court did not err in concluding that when Fales threw the box of beer out of the window of Irish’s fleeing pickup, False became a subject of the pursuit, thereby disqualifying him as an innocent third party. View "Fales v. County of Stanton" on Justia Law

The Supreme Court affirmed Defendant’s resentencing for his first degree murder conviction. Defendant was found guilty in 2000 and was seventeen years old at the time of the crime. Resentencing was required under Miller v. Alabama, 567 U.S. 460 (2012) and subsequent case law. Defendant was resentenced in accordance with Nebraska statutes to sixty to eighty years’ imprisonment with credit for the days that he had served. On appeal, Defendant argued that the district court imposed an excessive sentence because it failed properly to consider the applicable legal principles. The Supreme Court affirmed, holding that Defendant’s sentence was in accordance with both Miller and Neb. Rev. Stat. 28-105.02. Accordingly, Defendant’s additional arguments were without merit. View "State v. Jackson" on Justia Law

Defendant appealed his conviction, rendered after a jury trial, for possession of methamphetamine with intent to deliver. Defendant argued, among other things, that the trial court erred in denying his motion to suppress evidence found during a search with a warrant that was obtained as a result of observing defaced firearms during a prior warrantless search for a possible intruder at the request of a houseguest. The Supreme Court affirmed, holding (1) the facts reasonably warranted an immediate intrusion of a residence into areas where a burglar might be hiding, and therefore, the trial court did not err in overruling Defendant’s motion to suppress; (2) Defendant was not prejudiced by the admission, without a limiting instruction, of evidence of his drug use around the time specified in the information; and (3) the prosecutor did not commit misconduct during closing arguments. View "State v. Rodriguez" on Justia Law

Defendant appealed his drug-related convictions and sentences, raising several issues. The Supreme Court affirmed, holding (1) the district court did not err in admitting testimony regarding drug weights; (2) the district court did not err in admitting into evidence notebooks and notepads - known as “owe notes” - seized from Defendant’s vehicle; (3) there was not anything clearly erroneous or unduly prejudicial in the instructions and admonitions given to the jury; and (4) Defendant’s claims of ineffective assistance of counsel did not warrant relief; and (5) Defendant’s remaining assignments of error were without merit. View "State v. Schwaderer" on Justia Law

Defendant, who was convicted of violating Neb. Rev. Stat. 28-1212.04 and other offenses, appealed the district court’s denial of his motion for postconviction relief, arguing that he should have received an evidentiary hearing on his allegations. Defendant’s arguments were premised on the constitutionality of section 28-1212.04. The Supreme Court affirmed the denial of postconviction relief, holding (1) the district court properly found that Defendant’s allegations raising direct constitutional challenges to section 28-1212.04 were procedurally barred; and (2) Defendant’s ineffective assistance of counsel claim did not entitle him to an evidentiary hearing because the allegations could not support a finding of deficient performance. View "State v. Ross" on Justia Law

After a stipulated bench trial, Defendant was convicted of possession of a firearm by a prohibited person. Defendant was sentenced to three to five years’ imprisonment. Defendant appealed, arguing that the evidence against him should be suppressed because there was no probable cause to support the issuance of a search warrant. The Supreme Court affirmed, holding (1) Defendant’s Fourth Amendment rights were not violated when his house and vehicle were searched because the application and warrant established probable cause; and (2) officers did not exceed the scope of the search warrant when they searched a vehicle parked outside the house described in the search warrant. View "State v. Hidalgo" on Justia Law

Defendant and his father were both charged with criminal conspiracy to commit felony theft. The district court joined the two cases for trial. Before trial, Defendant filed a motion for absolute discharge alleging that his speedy trial time had run. The district court overruled Defendant’s motion, concluding that the codefendant exclusion of Neb. Rev. Stat. 29-1207(4)(e) applied to exclude additional time. The Supreme Court affirmed, holding (1) the trial court correctly interpreted and applied the codefendant exclusion under section 29-1207(4)(e); and (2) the trial court did not clearly err in finding that all three factors under the statute were proved by a preponderance of the evidence or in computing Defendant’s speedy trial time. View "State v. Beitel" on Justia Law