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Appeal from the District Court for Douglas County: JOHN D. HARTIGAN, JR., Judge.
Convictions affirmed, all sentences vacated, and cause remanded for resentencing.
James Martin Davis, of Davis Law Office, and Mark A. Weber, of Carlson & Burnett, L.L.P., Omaha, for appellant.
Jon Bruning, Attorney General, James D. Smith, Lincoln, and Carrie A. Thober for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
1. Rules of Evidence. In procee6. Graham, supra note 2.dings 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 such discretion a factor in determining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
4. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion.
[287 Neb. 357] 5. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the court abused its discretion.
6. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.
7. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
8. Trial: Juries: Evidence. Demonstrative exhibits are defined by the purpose for which they are offered at trial; demonstrative exhibits aid or assist the jury in understanding the evidence or issues in a case.
9. Trial: Evidence. Exhibits admitted only for demonstrative purposes do not constitute substantive evidence.
10. Trial: Evidence: Appeal and Error. On appeal, a defendant may not assert a different ground for his objection to the admission of evidence than was offered at trial.
11. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.
12. Evidence: Words and Phrases. Cumulative evidence means evidence tending to prove the same point of which other evidence has been offered.
13. Trial: Evidence: Appeal and Error. The erroneous admission of evidence is not reversible error if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding of the trier of fact.
14. Criminal Law: Statutes: 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.
15. Appeal and Error. An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal.
16. Sentences: Weapons. Although it is generally within the trial court's discretion to direct that sentences imposed for separate crimes be served concurrently or consecutively, Neb.Rev.Stat. § 28-1205(3) (Reissue 2008) does not permit such discretion in sentencing, because it mandates that a sentence for the use of a deadly weapon in the commission of a felony be served consecutively to any other sentence imposed and concurrent with no other sentence.
17. Sentences: Appeal and Error. An appellate court has the power on direct appeal to remand a cause for the imposition of a lawful sentence where an erroneous one has been pronounced.
[287 Neb. 358] NATURE OF CASE
In this direct appeal, Eric A. Ramirez appeals from his convictions and sentences in the district court for Douglas County of two counts of first degree murder, three counts of use of a deadly weapon to commit a felony, one count of attempted second degree murder, one count of attempted robbery, and one count of criminal conspiracy. The first degree murder convictions are each Class IA felonies. Ramirez was 17 years old at the time of the murders. Ramirez assigns error to certain rulings regarding the admission and withdrawal of evidence. We find no merit to these assignments of error and affirm his convictions. Regarding the sentences imposed for his convictions, we conclude that the two life imprisonment sentences without the possibility of parole imposed for the two convictions of first degree murder, counts I and III, are unconstitutional and, accordingly, we vacate those sentences and remand the cause for resentencing consistent with Neb.Rev.Stat. § 28-105.02 (Supp.2013). We find plain error in regard to the sentences imposed for the convictions of use of a deadly weapon to commit a felony, counts II, IV, and VII, and we vacate such sentences and remand the cause for resentencing consistent with Neb.Rev.Stat. § 28-1205(3) (Cum.Supp.2012), such that each sentence imposed for the conviction of use of a deadly weapon runs consecutively to all other sentences and concurrently with no other sentence. We also find plain error in regard to the three sentences imposed for the convictions of count V, attempted second degree murder; count VI, attempted robbery; and count VIII, criminal conspiracy, because, as currently written, each of these three sentences was ordered to [287 Neb. 359] run concurrently with the sentences for the convictions of use of a deadly weapon, and, even after resentencing in counts II, IV, and VII, these three sentences as written would impose sentences which would run concurrently with at least two sentences for the convictions of use of a deadly weapon. We vacate the sentences for counts V, VI, and VIII and remand the cause for resentencing such that the sentences imposed do not run concurrently with the sentences for the convictions of use of a deadly weapon. Accordingly, we affirm the convictions, vacate all of the sentences, and remand the cause for resentencing consistent with this opinion.
STATEMENT OF FACTS
This case involves three shootings that occurred on the night of November 12, 2008, at three separate locations in Omaha, Nebraska, within an hour of each other. These shootings resulted in the deaths of two people and injury to a third person. Ramirez, Edgar Cervantes, and Juan E. Castaneda were later arrested for the crimes; Cervantes testified against Ramirez and Castaneda pursuant to a plea agreement.
The first shooting took place at a residence located on Dorcas Street, in Omaha, where Luis Silva was shot at approximately 10:45 p.m. outside his residence. Jose Hernandez, Silva's cousin, was living with Silva at the time, along with an aunt and another cousin. Hernandez testified that
he was home at approximately 10:30 p.m. when Silva's truck, a Chevrolet Blazer, arrived and parked in the driveway. Hernandez testified that he went outside to ask Silva to come inside and that Silva told Hernandez he was going to finish a telephone call. About 2 minutes later, Hernandez heard the truck's horn honk. Hernandez testified that he looked outside and saw Silva lying on the ground near the truck and a man with a gun standing next to him. Hernandez also saw another man by a tree nearby. The man next to Silva pointed his gun at Hernandez and, speaking in Spanish, said that " they only wanted money." The other man then said, " Let's go," in English. Through his porch window, Hernandez watched the two men leave. Hernandez testified that the man who pointed the gun at him was wearing black pants and a black, hooded sweatshirt and had a [287 Neb. 360] goatee and that the other man was wearing black pants and a gray sweatshirt.
Silva was shot twice. One bullet grazed the left side of his head. The other bullet entered his upper back, and continued to the left side of his chest. Silva was pronounced dead upon his arrival at an Omaha hospital.
The second shooting took place near North 50th Street and Underwood Avenue. Shortly after Silva was shot, Charles Denton and Hilary Nelsen drove to a walkup automatic teller machine (ATM). Denton got out of the van he was driving to use the ATM, while Nelsen remained in the van. Nelsen and Denton saw two people walking toward their vehicle. Nelsen testified that they were male and were wearing their hoods up. Nelsen testified that after Denton started the van, the two men started running toward the van. One of the men approached the driver's-side window and yelled at Nelsen and Denton to give him money. The man fired his gun, and Denton drove away. Denton called the 911 emergency dispatch service, but after he realized that he had been shot, he asked Nelsen to talk to the 911 operator.
Nelsen testified that she believed the men were not white but that she could not tell if they were " Hispanic" or " black." Nelsen and Denton both testified that the gun was silver. Denton stated the men were Hispanic and that the man with the gun had facial hair. Denton testified that the shooter was wearing a lighter-colored, hooded sweatshirt; that the other man was wearing a darker-colored, hooded sweatshirt; and that both men were wearing their hoods up. Denton sustained a bullet wound through his left bicep and a graze on his chest.
The third shooting took place in the parking lot of a gas station at South 52d and Leavenworth Streets. Tari Glinsmann was finishing her shift at the gas station. A passerby noticed a green Ford Taurus in front of the gas station with the lights on, the door open, and the engine running. The passerby saw a body and called 911. Glinsmann was dead when the rescue workers arrived on the scene.
A crime scene technician with a specialty in fingerprint identification was called by the State to testify. The fingerprint specialist testified that she dusted the exterior of the Ford [287 Neb. 361] Taurus, concentrating on areas where it appeared that the dust and dirt on the car had been smudged. She testified that she lifted three latent prints from the car: two on the hood of the car on the passenger side and one from just above the driver's-side door handle. She testified that the prints from the hood of the car appeared to be two parts of a left palmprint. After analysis, the fingerprint specialist determined that the latent prints found on the hood of the car matched Castaneda's prints.
Another of the State's witnesses was Cervantes, who agreed to testify against Ramirez and Castaneda pursuant to a plea agreement. Cervantes testified that on November 12, 2008, he called Ramirez to see " if he wanted to go jack [rob] some people and get some extra money." When Cervantes called Ramirez later, Ramirez said he was at a friend's house near South 24th and L Streets, and Cervantes offered to pick him up. Cervantes testified that he drank some beer and used cocaine while at the friend's house. Ramirez asked Cervantes if Castaneda could come along and if he could give " Tiny," another friend, a ride home. Cervantes agreed.
Cervantes testified that while he was on his way to drop off Tiny at home, Ramirez was in the front passenger seat and Tiny and Castaneda were in the back seat. Cervantes testified that he passed a gun, which was wrapped in a blue bandanna, to Ramirez and that Ramirez put the gun under his seat. Cervantes stated that after he dropped off Tiny, they proceeded to South 13th and Dorcas Streets where they saw " some white guys getting out of [a] truck." Cervantes testified that Ramirez and Castaneda got out of the car and tried to rob them. Ramirez and Castaneda then ran back to the car and said that the men did not have any money and that they " started getting crazy." Cervantes testified that both he and Ramirez were wearing gray, hooded sweatshirts and that Castaneda was wearing a black coat with fur trim and orange lining on the inside.
Cervantes testified that he then drove west on Dorcas Street, when Cervantes saw a man in a Chevrolet Blazer and pointed him out to Ramirez and Castaneda. Once again, Ramirez and Castaneda got out of the car while Cervantes waited. Cervantes heard a gunshot, Ramirez and Castaneda [287 Neb. 362] ran back to the car, and Cervantes drove away. Cervantes testified that Ramirez told him that when the man started honking the horn, Ramirez shot him through the vehicle's window. Castaneda then pulled the man out of the vehicle and began searching him. The people inside the house tried to come out, but Ramirez pointed his gun at the house so they would not come outside. Ramirez and Castaneda then ran back to the car with the man's wallet.
Cervantes stated that after robbing Silva, he drove to the area around North 50th Street and Underwood Avenue, where they saw a man at an ATM. Once again, Ramirez and Castaneda got out of the car, and Cervantes drove around the block. Cervantes heard gunshots, and Ramirez and Castaneda ran back to the car. Cervantes testified that Ramirez told him that the man saw them coming and started to drive away in his van, so Ramirez shot at the van.
Cervantes then drove south until they reached South 52d and Leavenworth Streets. Ramirez and Castaneda then saw Glinsmann at the gas station and asked Cervantes to stop. Ramirez and Castaneda, once again, got out of the car and went over to the gas station. Cervantes parked in a nearby lot, and he heard a gunshot. Ramirez and Castaneda ran back to the car and got in. Cervantes testified that Ramirez said he shot Glinsmann in the head.
At trial, the State also called as a witness Preston Landell, the operations coordinator for Cricket Communications (Cricket) in Omaha and Lincoln, Nebraska, to testify regarding the cell phone records of Ramirez and Castaneda. Landell stated that he is essentially a recordkeeper for Cricket and that he had testified as a recordkeeper in other cases in the past. Landell testified that his duties included maintaining records at Cricket and being a
resource for direct and indirect retail teams.
Landell stated that records of calls made were stored in a server for 6 months and that the date was recorded immediately at the time of sending a call. Text messages are stored in the same way, but on a different server. Records are kept for 6 months after the date of sending the text message. Landell testified as to the telephone number assigned to Ramirez and [287 Neb. 363] the telephone number assigned to Castaneda's stepmother. The records show the cell phone number from which the call or text originated and the recipient's number, the time and duration of the call, and the cell tower used to process the call or text. The State offered the cell phone and text records for each of these accounts for the dates of November 9 to 19, 2008. The records were received without objection.
The State also showed Landell exhibit 224, which is a timeline summarizing the calls and texts between the cell phones of Ramirez, Castaneda, and a third telephone number from November 9 to 19, 2008. The information reflected on the timeline was extracted from cell phone account records already in evidence. Although exhibit 224 was discussed, it was not offered or received into evidence at this point in the trial.
Landell further testified regarding the operation of cell towers. He stated that as an operational employee, he had a " working knowledge of the infrastructure of the cell phone towers." Landell stated that when a call is made, the caller's cell phone searches for the closest available tower to route the call to a " switch." When the call reaches the switch, certain information is recorded in the server, including the date, time, and duration of the call; the caller's telephone number; the destination telephone number; the number of the cell tower that was used; and any special features that were used during the call. The switch then searches for the cell tower closest to the destination cell phone and uses that cell tower to route the call to the destination telephone. Landell testified that these records are kept and stored in the ordinary course of business, at or near the time the calls are made.
When the State asked Landell whether a cell phone would use the closest cell tower when sending or receiving a call, Ramirez objected on the basis of foundation. The objection was overruled, and Landell testified that that was generally how the system works, but not always. When asked whether there was a distance that a tower would pull a call from, Landell testified— over Ramirez' foundation objection— that a rural cell tower may have a 20-mile radius while the radius in an urban setting is much less because of obstructions and more tower traffic.
[287 Neb. 364] The State then offered exhibit 259, which is a map of a portion of Omaha showing the locations of the six cell towers that were used by Ramirez' cell phone the night of the shootings, along with the locations of the shootings. The map shown on exhibit 259 incorporated information from evidence that was previously admitted during trial with the exception of the exact street addresses of the cell towers. Landell stated that he had reviewed exhibit 259 and that the addresses and locations of the cell towers shown on the exhibit were correct. Ramirez objected to exhibit 259 based on foundation and was granted permission to voir dire Landell. During voir dire, Landell stated that generally, a cell phone call will go to the closest tower if it is available, but that he could not say with certainty that a call will always go to the closest tower. Landell further stated that if the towers are busy, a call may go to a number of towers before it is put through. The court overruled Ramirez' foundation
objection and received exhibit 259 into evidence.
There is a suggestion in the record that the parties agreed to a stipulation of facts to the effect that Ramirez lived with his mother, that he was on probation, and that Ramirez' mother tried to ensure that he was home by curfew every night, but that she could not guarantee Ramirez never would have snuck out of the house after curfew. After the State rested, the defense did not call any witnesses or offer evidence.
Before closing arguments were made, the trial judge summoned counsel outside the presence of the jury to discuss exhibit 259, which was the map which showed the locations of the shootings and cell towers used by Ramirez' cell phone the night of the shootings. After further discussion, the judge withdrew exhibit 259, which had been admitted over Ramirez' foundational objection. The trial judge later orally admonished the jury by saying: " One final item on the evidence. Exhibit 259 has been withdrawn from evidence. You are instructed not to consider it in your deliberations or the testimony of ... Landell regarding the location of cell towers insofar as the subscriber's location is concerned." Ramirez moved for a mistrial, which the court overruled. For completeness, we note that the [287 Neb. 365] written jury instructions stated that the jury " must disregard all evidence ordered stricken."
The morning after jury deliberations began, it was noticed that exhibit 224, the timeline of the cell phone calls and texts which had been made between the cell phones of Ramirez, Castaneda, and a third subscriber, had not been offered or received into evidence. Exhibit 224 incorporated information from previously admitted evidence, primarily Ramirez' and Cervantes' cell phone records. After hearing arguments from both parties outside the presence of the jury, the court allowed the State to supplement the record and received exhibit 224 at that time. The district court judge commented that exhibit 224
doesn't contain any information that hasn't been received into evidence, and it had been referenced [sic] to during the evidence and closing arguments.... It's a fair representation of a timeline that is already in evidence through those records. And so the exhibit will be included among the evidence that the court reporter transmits to the jury for [its] deliberation.
Ramirez moved for a mistrial, and the court overruled the motion.
The jury found Ramirez guilty on all eight counts. Ramirez filed a motion for new trial on various bases, including the admission and later withdrawal of exhibit 259, the map, and the admission of exhibit 224, the timeline of cell phone calls and texts. The district court denied Ramirez' motion for new trial.
In ruling on the motion for new trial, the court determined that the admission and later withdrawal of exhibit 259 did not require a new trial. The court explained: " I withdrew [exhibit] 259 from evidence, really, in an abundance of caution because I didn't want someone to draw the inference that the subscriber or user was in a particular location at a particular time and that that was the significance of ...