842 N.W.2d 694
Neb.2014Background
- Ramirez appeals convictions and multiple counts including two first-degree murders committed when he was 17; the State’s key evidence included cell-phone records and a demonstrative map (exhibit 259) and a timeline (exhibit 224).
- The district court admitted exhibit 259 as demonstrative evidence and later withdrew it, admonishing the jury; exhibit 224 was admitted after closing arguments as a cumulative demonstrative exhibit.
- Miller v. Alabama (juvenile life-without-parole invalidity) arose during reconsideration of Ramirez’s sentences on direct appeal; Nebraska enacted LB 44 to modify punishment for Class IA felonies by youths under 18 and to adjust parole procedures.
- The court determines Miller applies to Ramirez’s mandatory life sentences under prior Nebraska law, vacates those sentences, and remands for resentencing under LB 44.
- Plain errors were identified in the district court’s sentencing order for counts involving use of a deadly weapon and related offenses, necessitating remand for lawful sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of exhibit 259 and its foundation | Ramirez: insufficient foundation for Landell and map | Ramirez: trial court erred admitting and later withdrawing exhibit 259 | No abuse of discretion; 259 demonstrative and properly foundations-supported; withdrawal not error |
| Admissibility of exhibit 224 after trial | Ramirez: error admitting 224 post-trial without reopening evidence | 224 was cumulative and properly admitted as demonstrative | No abuse of discretion; 224 admissible as cumulative demonstrative evidence |
| Miller v. Alabama applicability to Ramirez | Ramirez: Miller applies; life sentences unconstitutional | State: LB 44 remedies; Miller not applicable to current framework | Miller applies; vacate two life sentences and remand for resentencing under LB 44 |
| Plain error in sentencing order for counts with deadly weapon and related counts | Ramirez: sentencing errors improper grouping and concurrency | District court acted within discretion | Vacate and remand for proper consecutive sentencing of use-of-deadly-weapon counts and related counts |
Key Cases Cited
- Pangborn v. State, 286 Neb. 363 (Neb. 2013) (demonstrative evidence admissibility and purpose; not substantive evidence)
- Robinson v. State, 272 Neb. 582 (Neb. 2006) (cell phone records as business records; foundation; Daubert not required)
- Taylor v. State, 282 Neb. 297 (Neb. 2011) (cell phone records authentication foundation; Landell adequate)
- Miller v. Alabama, 132 S. Ct. 2455 (2012) (juvenile homicide sentences unconstitutional when mandatory life without parole)
- Gunther v. State, 271 Neb. 874 (Neb. 2006) (remand for lawful sentencing when erroneous sentence pronounced)