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