[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the
District Court for Douglas County: JOHN D. HARTIGAN, JR., Judge.
affirmed, all sentences vacated, and cause remanded for resentencing.
Thomas C. Riley,
Douglas County Public Defender, for appellant.
Jon Bruning, Attorney General, James D. Smith, and Stacy M. Foust for appellee.
Marsha Levick, Deputy Director and Chief Counsel, and Emily Keller and Lauren Fine for amicus curiae Juvenile Law Center.
Amy A. Miller, for amicus curiae American Civil Liberties Union Foundation of Nebraska.
Heavican, C.J.,Wright,Connolly, Stephan,McCormack Miller-Lerman, and Cassel, JJ.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
2. Judgments: Appeal and Error. In making the determination as to factual questions, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.
3. Trial: Judges: Evidence. Trial judges are allowed to exclude evidence if its probative value is outweighed by unfair prejudice, confusion of the issues, or potential to mislead the jury.
4. Criminal Law: Trial: Rules of Evidence: Polygraph Tests. An evidentiary rule categorically excluding polygraph results is not arbitrary, because state and federal governments have broad latitude to establish rules excluding evidence from criminal trials.
5. Trial: Juries: Witnesses: Testimony. A fundamental principle of the justice system is that the jury is the lie detector, determining the weight and credibility of witness testimony.
6. Polygraph Tests: Prejudicial Statements. Polygraph results are generally inadmissible as unduly prejudicial.
7. Rules of Evidence: Hearsay. The foundation of trustworthiness required by the business records exception to the hearsay rule is sufficient to satisfy the authentication requirement of Neb. Evid. R. 901, Neb.Rev.Stat. § 27-901 (Reissue 2008).
[287 Neb. 290] 8. Trial: Evidence: Appeal and Error. An appellate court reviews a trial court's ruling on authentication for an abuse of discretion.
9. Trial: Rules of Evidence: Appeal and Error. Under Neb. Evid. R. 103, Neb.Rev.Stat. § 27-103 (Reissue 2008), error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and, in case the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.
10. Constitutional Law: Appeal and Error. The Nebraska Supreme Court ordinarily construes Nebraska's ex post facto clause to provide no greater protections than those guaranteed by the federal Constitution.
11. Constitutional Law: Statutes: Sentences. A law which purports to apply to events that occurred before the law's enactment, and which disadvantages a defendant by creating or enhancing penalties that did not exist when the offense was committed, is an ex post facto law and will not be endorsed by the courts.
12. Criminal Law: Statutes: Legislature: Sentences. Where a criminal statute is amended by mitigating the punishment, after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act unless the Legislature has specifically provided otherwise.
Juan E. Castaneda was convicted of several charges arising from three shootings that occurred in Omaha, Nebraska, on [287 Neb. 291] November 12, 2008. We affirm Castaneda's convictions in all respects, but conclude that the sentences of life imprisonment
without the possibility of parole imposed upon Castaneda were unconstitutional. Accordingly, we vacate those sentences and remand the cause for resentencing.
Castaneda was convicted by a jury of two counts of first degree felony murder, one count of attempted second degree murder, one count of attempted robbery, three counts of use of a deadly weapon to commit a felony, and one count of criminal conspiracy. He was sentenced to two terms of life imprisonment without the possibility of parole for first degree murder, 10 to 20 years in prison for attempted second degree murder, 10 to 15 years in prison for attempted robbery, 10 to 15 years in prison for criminal conspiracy, and 10 to 15 years in prison for each of the weapons convictions. At the time of the shootings, Castaneda was 15 years old.
The victim of the first shooting was found at approximately 10:45 p.m. on November 12, 2008. Luis Silva, who lived on Dorcas Street in Omaha, was found outside his home by his cousin, Jose Hernandez. Hernandez testified that when he heard a car horn and other sounds, he went outside and saw Silva on the ground with two individuals standing over him. One of the individuals near Silva was holding a gun. He pointed the gun at Hernandez and, in Spanish, demanded money. Hernandez returned to the house, and the second individual said " let's go," in English.
Silva had been shot twice. One bullet grazed the left side of Silva's head, and the second entered his chest under his left arm. Silva was declared dead upon his arrival at an Omaha hospital.
Hernandez described the two assailants. One was wearing black pants and a gray, hooded sweatshirt, and the other wore black pants and a black, hooded sweatshirt with the hood pulled over his head. Hernandez identified both as appearing to be " Latin," but when counsel for the State asked Hernandez [287 Neb. 292] about their ability to speak Spanish, he answered, " Not very well. Like they were born here."
Shortly before Silva was shot, two brothers, Mark and Charles McCormick, were visiting their cousin at his residence near 13th and Dorcas Streets. As the McCormicks were leaving the residence at about 10:30 p.m., two men, one holding a gun, approached and demanded money. Mark replied that he had no money, and when he and Charles threatened the two men with a " piece of wood" or " tree stump," the men started " backing away." Mark described the first man, who was holding the gun, as wearing a gray, hooded sweatshirt. The second man was wearing a dark-colored, hooded sweatshirt.
At approximately 11 p.m., Charles Denton and Hilary Nelsen drove to a walkup automatic teller machine (ATM) in the 50th Street and Underwood Avenue area, where Denton parked the vehicle and got out to use the ATM. Denton observed two men walking through the parking lot, and he thought they looked out of place. After Denton returned to the vehicle and started to drive away, the two men ran toward Denton's vehicle. One of the men approached the driver's-side window and demanded money. The man fired a gun at the vehicle, and the driver's-side window shattered. Denton drove away and called the 911 emergency dispatch service. When he was about 1 mile away, Denton stopped the vehicle because he realized he had been shot. Denton sustained a bullet wound through his bicep and a graze on his chest.
Nelsen testified that the men were wearing baggy jeans and hooded sweatshirts. Nelsen also testified that one of the sweatshirts was dark and one was white and that both men had the hoods pulled over their heads. Denton also said one sweatshirt was lighter and the other was darker. Nelsen said the men were young and were either " Mexican" or " African-American," but not white. Denton stated that although he did not get a good look at the men's faces, both were " Hispanic."
Shortly after 11 p.m., a passerby saw a car with its engine running and lights on in front of a gas station at 52d and Leavenworth Streets. The witness stopped because there were no lights on in the parking lot. The car door was open, and its interior lights were on. The witness saw a person lying on the [287 Neb. 293] ground nearby and called 911. The victim was identified as Tari Glinsmann, who worked at the gas station and had just finished her shift. The car was a green Ford Taurus Glinsmann had borrowed from a friend that night. Glinsmann was dead when rescue workers arrived on the scene.
2. CERVANTES' VERSION OF EVENTS
The State entered into an agreement with Edgar Cervantes to dismiss murder charges against him in exchange for his testimony. Cervantes testified that on November 12, 2008, he was living with Santiago Jacobo and his family. Cervantes agreed to transport Jacobo's children to and from school in exchange for the use of Jacobo's Chevrolet Cavalier.
According to Cervantes, he needed money so he called Eric Ramirez on November 12, 2008, and asked if Ramirez wanted " to go rob some people." Later that day, Cervantes met Ramirez at the home of a female friend who lived near 24th and L Streets. Cervantes stated that he had a beer and used cocaine while at the friend's house. Other people at the house included Jacob Shantz and Castaneda. Ramirez ultimately requested that Cervantes give Shantz a ride home, and Cervantes agreed. Castaneda accompanied them.
Cervantes testified that he and Ramirez were wearing black pants and gray, hooded sweatshirts and that Castaneda was wearing black pants and a black coat with fur trim. Ramirez was in the front passenger seat, and Castaneda and Shantz were sitting in the back seat.
Cervantes stated that as he was driving to Shantz' home, Ramirez asked to see the gun that Cervantes had recently purchased. The gun was under the driver's seat, wrapped in a blue bandanna. Cervantes said he handed the gun to Ramirez, and Ramirez placed the gun under his seat. After they dropped off Shantz, Cervantes, Ramirez, and Castaneda drove to 13th and Dorcas Streets where they saw two men getting out of a truck. Cervantes stated that Ramirez and Castaneda got out of the car and that he heard a gunshot shortly thereafter. Cervantes said Ramirez and Castaneda ran back to the car and stated that they had attempted to rob two white men, but that the men did not have any money and had " started getting crazy."
[287 Neb. 294] Cervantes testified that he then drove to 16th and Dorcas Streets, where he pointed out Silva as " the Mexican guy in the Blazer." Once again, Cervantes waited in the car while Ramirez and Castaneda got out. Cervantes said he heard two gunshots about a minute later. Cervantes stated that Ramirez later said that when Silva began blowing the car horn, Castaneda dragged Silva out of his vehicle and Ramirez shot him.
Cervantes testified that after the robbery and shooting of Silva, Cervantes drove to an area near 50th Street and
Underwood Avenue, where they saw a man at an ATM. Cervantes said he waited on the other side of the street as Ramirez and Castaneda got out of the car. Cervantes said he heard two gunshots and then Ramirez and Castaneda came back to the car. Cervantes then drove south until they reached 52d and Leavenworth Streets.
Cervantes stated that Ramirez asked Cervantes to stop when Ramirez saw Glinsmann at the gas station. Ramirez and Castaneda got out of the car, and Cervantes parked in a nearby lot. Cervantes said he heard a gunshot and then Ramirez and Castaneda came back to the car and got in.
Cervantes stated that he drove back to the female friend's house near 24th and L Streets. On the way, Ramirez told Cervantes that Glinsmann had no money, that Castaneda pulled her out of the car, and that Ramirez shot her. Cervantes said he told Ramirez to keep the gun. After drinking beer and smoking marijuana for a short time, Cervantes returned to Jacobo's house. Cervantes testified that he stayed up most of the night smoking marijuana and finally went to bed in the early morning hours.
When Jacobo woke Cervantes the next morning, Cervantes said Jacobo appeared nervous. Jacobo asked Cervantes about the night before, because Jacobo noticed a number of police officers in the area. Cervantes said he told Jacobo about the robberies and told Jacobo that Ramirez " kind of went crazy with the gun." Jacobo told Cervantes to leave the home. Cervantes then went to his parents' house and stayed there.
Cervantes got a ride from Roberto Hidalgo to his parents' home after Jacobo asked him to leave. Hidalgo testified [287 Neb. 295] that Cervantes said that " he [Cervantes] shot the guy and [Ramirez] did the rest." When police contacted Hidalgo shortly after the shootings, Hidalgo denied any knowledge of the crimes. Hidalgo later gave a statement to police and stated that Cervantes never mentioned Castaneda's involvement.
Five days after the shootings, the police contacted Cervantes and Cervantes denied all involvement. During a second interview on November 22, 2008, Cervantes admitted that he had been the driver of the car involved in the shootings and that Ramirez and Castaneda were also involved. Cervantes testified that he was tired of lying and that he was not initially completely truthful.
During cross-examination, Cervantes admitted that he lied to police on multiple occasions and that, in fact, he could not remember his lies. The trial court sustained the State's motion in limine to exclude all testimony regarding two polygraph examinations taken by Cervantes. Cervantes insisted that he was the driver of the vehicle, that Castaneda pulled Silva and Glinsmann out of their respective vehicles, and that Ramirez shot Silva, Denton, and Glinsmann.
3. SEARCH WARRANTS
Castaneda's palmprint was found on the hood of Glinsmann's vehicle, the Ford Taurus she had borrowed, and a search warrant was issued for his residence. Items removed from Castaneda's bedroom included a dark-colored, hooded jacket, a disposable camera, a pair of shoes, an identification card, bandannas, and a blue spiral notebook.
During the initial search, an Omaha police officer observed a black jacket with a fur-lined hood. The jacket was not seized because it did not match any descriptions given by witnesses. However, the officer later viewed surveillance footage from the gas station where Glinsmann was shot and
saw that one assailant was wearing a dark-colored, hooded jacket with fur trim.
An amended search warrant was executed on November 17, 2008, to look for the hooded jacket. Although the jacket was not found, a photograph taken with a disposable camera shows the fur-lined jacket in the background in Castaneda's bedroom. [287 Neb. 296] An officer with the Omaha Police Department's gang unit also took a photograph of Castaneda in which he was wearing a black jacket with fur trim.
4. FORENSIC EVIDENCE
A crime scene technician with a specialty in firearms and ammunition testified that to a reasonable degree of scientific certainty, all of the recovered bullets from all of the crime scenes were fired from the same weapon.
The Chevrolet Cavalier used in the commission of the crimes was searched. Among the items found were a gray, hooded sweatshirt and a brown leather wallet containing Silva's identification. Castaneda could not be excluded as a donor for the DNA swab of the outside of the right sleeve or the outside of the left sleeve of the sweatshirt. Castaneda also could not be excluded as the donor for the swabs taken of the side of the right seat and the back seat levers of the car, nor could Castaneda be excluded as a donor for DNA swabbed from a sports drink bottle found in the back seat of the Cavalier.
5. ALIBI EVIDENCE
Castaneda offered alibi evidence from John Orduna and Castaneda's stepmother, who both testified that Castaneda was at home the night of November 12, 2008. Orduna, who lived in the same apartment building as Castaneda and his family, testified that he saw Castaneda that night between 9:30 and 10 p.m., but certainly before 11 p.m. Orduna stated that he and his wife often sat on the porch of the apartment building drinking beer until 1:30 or 2 a.m. and that on November 12, Castaneda came out and spoke with them. Orduna said that Castaneda was alone, that Castaneda went back inside of the apartment building, and that Orduna and his wife were on the porch until late that night. On rebuttal, however, the State ...