THIS MATTER is before the Court on Defendant Poindexter's "Motion For Court To Compel Voice Exemplar." Defendant seeks authorization, by means of a letter (or letters) rogatory, to acquire a voice exemplar from an individual identified, variously, as Duane Christopher Peak or Gabriel Peak, who is alleged to reside in the State of Washington. Defendant states that such a voice exemplar would be compared with the voice on a tape recording of a telephone call made to the ^"911" Emergency Communications Center on August 17, 1970. The State of Nebraska opposes the motion on the grounds (1) that the Court lacks personal jurisdiction over the individual from whom the voice exemplar is being sought; (2) that a letter rogatory is an inappropriate procedural vehicle by which to obtain the voice exemplar; (3) that any further examination of the issue of the "911" caller's identity is barred by the doctrine of collateral estoppel; and (4) that any evidence gained by virtue of the proposed voice exemplar would be inadmissible at a hearing on the merits of this post-conviction proceeding.

        The State of Nebraska contends that Defendant's motion should be denied because the Court lacks personal jurisdiction over Duane C. Peak, the non-Nebraska resident from whom the voice exemplar is being sought,

        Nebraska cases recognize the principle that a court in one state cannot directly affect title to or control of real property in another state. See, e.g., Weesner v. Weesner, 168 Neb. 346, 95 N.W.2d 682 (1959) [Wyoming divorce decree which attempted to convey to one spouse, a Wyoming resident, real property in North Platte, Nebraska, coupled with limitations on ownership of such property, was, to that extent, of no force and effect]; Miller v, American Co-op. Association. 110 Neb. 773, 195 N.W.167 (1923) [Wisconsin court's appointment of receiver for corporation domiciled in Wisconsin does not thereby bring corporation's property in Nebraska under control of Wisconsin court]. And a court of limited jurisdiction cannot exercise that jurisdiction over a person who is not already within that court's jurisdiction. See In re Interest of P.W., 249 Neb. 133, 542 N.W.2d 407 (1996) [juvenile court's power over parents of minor child under court's jurisdiction does not extend to requiring parents' compliance with order to make their non-adjudicated minor child available for visitation with the adjudicated minor child].

        However, courts in several other jurisdictions have concluded that a court's inherent discovery power applies in post-conviction proceedings. See, e.g., Harris v. Nelson. 394 U.S. 286, 89 S.Ct. 1082, 22 LEd.2d 281 (1969) [holding that federal court may authorize taking of interrogatories in support of habeas corpus petition]; People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175, 121 III.Dec. 937, 941, 526 N.E.2d 131,135 (1988) [holding that courts have inherent authority to authorize taking of depositions in post-conviction proceedings]; Gibson v. United States, 566 A.2d 473, 478 (D.C.Ct.App. 1989) ["(C)ourts . . . may fashion post-conviction discovery procedures as may be required to give meaning and substance to the objectives of the law."]; State v. Lewis, 656 So.2d 1248, 1249 (Fla.1994) ["(I)t is within the trial judge's inherent authority, rather than any express authority found in the Rules of Criminal Procedure, to allow limited discovery (when a party is pursuing a post-conviction claim)."]; State v, Marshall. 148 NJ. 89, 269, 690 A.2d 1, 91 (1997) [citing New Jersey cases which have recognized that, even in absence of authorization by means of court rule or constitutional mandate, New Jersey courts have the inherent power to order discovery when justice so requires].

        I therefore determine that, while this court's authority is not unbridled, it does have the inherent power to grant Defendant's discovery motion.

        Defendant requests that this Court issue a letter rogatory to the appropriate court in the State of Washington, requesting that it compel the individual identified as Duane Christopher Peak or Gabriel Peak to submit to a voice exemplar. The State of Nebraska contends that letters rogatory are not the appropriate procedural vehicle by which to compel the identified individual's submission to a voice exemplar.

        A "letter rogatory" is a request from one court to another of independent jurisdiction. In re Request from Canada Pursuant to Treaty Between United States and Canada on Mutual Legal Assistance in Criminal Matters, 155 F.Supp.2d 515 (M.D.N.C. 2001). See Magness v. Russian Federation. 247 F.3d 609, 614 n.10 (5th Cir.), cert, denied. 534 U.S. 609, 122 S.Ct. 209, 151 LEd.2d (2001) ("[a] 'letter rogatory' is a formal request from a court in one country to the appropriate judicial authorities in another country that can effectuate service of process"); Volkswagenwerk Aktiengesellschaft v. Superior Court of Sacramento County, 33 Cal.App.3d 503, 109 Cal.Rptr. 219 (1973) ("[a] 'letter rogatory' is a judicial request addressed to a foreign court that a witness be examined within the latter's territorial jurisdiction by written interrogatories, or, if the foreign court permits, by oral interrogatories"). The Code of Federal Regulations, 22 C.F.R. § 92.54 (2005), defines "letters rogatory" as follows:

    In its broader sense in international practice, the term letters rogatory denotes a formal request from a court in which an action is pending, to a foreign court to perform some judicial act. Examples are requests for the taking of evidence, the serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment. In United States usage, letters rogatory have been commonly utilized only for the purpose of obtaining evidence. Requests rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity. ..

        Although the use of letters rogatory occurs most commonly in the international arena, involving a court of the United States and a court of another sovereign nation, and is apparently quite rare between courts of the United States, at least if the reported decisions of those courts are any indication, the parties have cited no decision which prohibits the use of letters rogatory in such a situation. See, e.g., Sevmour v. Sevmour. 262 Conn. 107, 809 A.2d 1114 (2002). In that case, a dissolution-of-marriage proceeding, one spouse, a Massachusetts resident, by means of letters rogatory issued by the Massachusetts court in which the case was pending, sought to take depositions of the other spouse's parents, Connecticut residents, for the purpose of identifying the parents' assets and estate plan for use by the Massachusetts court in determining the extent and apportionment of marital assets. The parents sought alternative relief from Connecticut's courts, and, although their request for a protective order prohibiting discovery of their financial records was denied, the court ordered that their depositions be sealed.

        On the basis of the foregoing discussion, I conclude that issuance of letters rogatory to the appropriate court in the State of Washington is not an inappropriate procedural vehicle by which to initiate Defendant's discovery request. The parties are cautioned that, as the California Court of Appeals noted in Volkswaqenwerk, supra at 507, 109 Cal.Rptr. at 221, the procedure to-be followed as to the letter rogatory is entirely under the control of the tribunal whose assistance is sought in the administration of justice.

        The State contends that the identity of the person who placed the "911" telephone call which lured Officer Minard to the scene of his death has already been determined in the state-and federal-court post-conviction proceedings involving Mr. Poindexter's co-defendant, David L. Rice, and that Defendant's request for a voice exemplar is therefore barred by the doctrine of collateral estoppel. I conclude otherwise.

        Under the doctrine of "collateral estoppel," or "issue preclusion," when an issue of ultimate fact has been determined by a final judgment, that issue cannot again be litigated between the same parties in a future lawsuit. Eicher v. Mid America Financial Investment Corp.. 270 Neb. 370, 702 N.W.2d 792 (2005); In re Estate of Krumwiede, 264 Neb. 378, 647 N.W.2d 625 (2002). Accord. State v. Nesbitt 264 Neb. 612, 633, 650 N.W.2d 766, 785 (2002) [quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)]. There are four conditions that must exist for the doctrine of collateral estoppel to apply; (1) the identical issue was decided in a prior action; (2) there was a judgment on the merits which was final; (3) the party against whom the doctrine is applied was a party or in privity with a party to the prior action; and (4) there was an opportunity to fully and fairly litigate the issue in the prior action. Eicher, supra at 387, 702 N.W.2d at 809; R.W. v. Schrein, 263 Neb, 708, 642 N.W.2d 505, as modified qq rehearing, 264 Neb. 818, 652 N.W.2d 574 (2002). A former verdict and judgment are conclusive only as to the facts directly in issue in the prior action, and they do not extend to facts which may be in controversy but which rest on evidence and are merely collateral. Eicher, supra at 387, 702 N.W.2d at 807-808; Suhr v. City of Scribner, 207 Neb. 24, 27-28, 295 N.W.2d 302, 304 (1980). In a criminal case, a fact previously determined is not an "ultimate fact" precluded by the collateral estoppel doctrine unless it was necessarily determined by the fact finder against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in order to convict. Nesbitt, supra at 634, 650 N.W.2d at 786; Nesbitt v. Hookins, 86 F.3d 118 (8th Cir.1996).

        The identity of the person who placed the "911" telephone call was, without question, a matter of considerable controversy during the prosecution of Messrs. Rice and Poindexter. However, a careful examination of the Rice post-conviction proceedings, particularly the proceeding indexed in the records of Douglas County District Court at Docket 81, Page 116, leads me to the conclusion that the caller's identity was not conclusively determined in those proceedings. Rather, the matter arose in the context of Rice's claim that, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, the prosecution had deliberately withheld from him the tape recording of the "911" call, thus depriving him of the opportunity to establish that Duane Peak was not, in fact, the caller, as Peak had testified that he was, and thus to impeach Peak's credibility before the jury. The trial judge in that proceeding determined that the tape recording was not so "obviously exculpatory" as to create a reasonable doubt about guilt that did not otherwise exist and, thus, that there had been no Brady violation. That determination was subsequently upheld by the Nebraska Supreme Court on appeal from the trial court's denial of post-conviction relief, State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983), and by the United States Court of Appeals for the Eighth Circuit in Rice's habeas corpus proceeding, Rice v. Black, 923 F.2d 117 (8th Cir.1991). However, the trial judge was not required to, nor did he, determine whether Duane Peak was the person who placed the "911" telephone call. Cf. State v. Nesbitt supra at 634, 650 N.W.2d at 786 (although defendant generally argued that the State had impermissibly used evidence of a sexual assault on the homicide victim to infer a motive for her premeditated killing, of which defendant was convicted, motive is not an element of first-degree murder, and the State was not required to prove the sexual assault of the victim beyond a reasonable doubt in order to establish premeditated murder]. On the basis of that analysis, I conclude that the State of Nebraska has failed to establish that "the identical issue was decided in a prior action," Eicher, supra, the first of the four elements necessary to apply the doctrine of collateral estoppel, and therefore Defendant's motion/request for a voice exemplar is not barred on that basis.

        In further support of its contention that Defendant's request for a voice exemplar is barred by the doctrine of collateral estoppel, the State has argued that Defendant Poindexter was in privity with David Rice and that, therefore, he is bound by any determination of fact made in the Rice post-conviction proceedings.

        In order to be applicable, the doctrines of collateral estoppel and res judicata require an identity or "privity" of parties. R.W. v. Schrein, supra. The Nebraska Supreme Court has stated that there is no definition of "privity" which can be applied to all cases involving collateral estoppel. Torrison v. Overman, 250 Neb. 164, 549 N.W.2d 124 (1996). However, the Supreme Court went on to say that "'"[P]rivity requires, at a minimum, a substantial identity between the issues in controversy and [a] showing [that] the parties in the two actions are really and substantially in interest the same.'"" Id. at 176, 549 N.W.2d at 132, quoting VanDeWalle v. Albion National Bank, 243 Neb. 496, 505, 500 N.W.2d 566, 573 (1993).

        Although Messrs. Poindexter and Rice were tried and convicted in a joint trial in 1971, that fact does not forever after bind them together. Contrary to the State of Nebraska's assertion in its brief opposing Defendant Poindexter's motion to compel a voice exemplar, Defendant was neither a party of record to the Rice post-conviction proceedings nor could he have intervened to assert his claims in either the state-court or federal-court proceedings in which Rice challenged his conviction and sentence. On that basis, I conclude that Defendant was not in privity with David Rice and that, therefore, he is not bound by any determination of fact made in the Rice post-conviction proceedings,

        Finally, the State contends that any evidence developed as a result of an aural and/or spectrogram analysis would be inadmissible at the evidentiary hearing on the merits of this post-conviction motion and that Defendant's motion should be denied on that basis. I conclude, however, that the admissibility of any evidence which might be derived from this procedure is not yet ripe for decision. That determination is reserved for future proceedings in this matter. The proponent of any such evidence would, of course, be expected to satisfy the customary conditions precedent to the admissibility of evidence, as well as the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 LEd.2d 469 (1993).

        On the basis of the foregoing analysis, I conclude that Defendant's request for the issuance of letters rogatory to the appropriate court in the State of Washington should be, and by this order it is, granted.

    IT IS THEREFORE ORDERED AND ADJUDGED that Defendant's Motion For Court To Compel Voice Exemplar is granted to the extent that it authorizes the Clerk of Douglas County District Court to issue, to the appropriate court of the State of Washington, letters rogatory requesting that court's assistance in the taking of a voice exemplar from an individual identified, variously, as Duane Christopher Peak or Gabriel Peak, who is alleged to reside in the State of Washington.

Dated at Omaha, Douglas County, Nebraska, this 30th day of December, 2005.

                                                                                                                        BY THE COURT:

                                                                                                                        Richard J. Spethman

                                                                                                                        District Court Judge