[Copyrighted Material Omitted]
Appeal from the District Court for Douglas County: MARLON A. POLK, Judge.
Affirmed in part, sentence vacated in part, and cause remanded for resentencing.
Thomas C. Riley, Douglas County Public Defender, for appellant.
Jon Bruning, Attorney General, and James D. Smith for appellee.
Heavican, C.J.,Wright Stephan, Miller-Lerman, and Cassel, JJ.
1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court will review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds.
2. Identification Procedures: Due Process: Appeal and Error. A district court's conclusion whether an identification is consistent with due process is reviewed de novo, but the court's findings of historical fact are reviewed for clear error.
3. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality and construction of a statute are questions of law, regarding which the Nebraska Supreme Court is obligated to reach conclusions independent of those reached by the court below.
4. Trial: Verdicts: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether [287 Neb. 387] in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.
5. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.
6. Criminal Law: Identification Procedures: Witnesses: Words and Phrases. A showup is usually defined as a one-on-one confrontation where the witness views only the suspect, and it is commonly conducted at the scene of the crime,
shortly after the arrest or detention of a suspect and while the incident is still fresh in the witness' mind.
7. Constitutional Law: Identification Procedures: Due Process. An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law.
8. Identification Procedures. Reliability is the linchpin in determining the admissibility of identification testimony.
9. 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.
I. NATURE OF CASE
A jury convicted Trevelle J. Taylor of first degree murder and use of a deadly weapon to commit a felony. He was sentenced to life imprisonment and a consecutive sentence of 10 years' to 10 years' imprisonment, respectively. His convictions arose from his participation, at the age of 17 years, in the death of Justin Gaines. In this direct appeal, Taylor alleges several trial errors and claims his sentence of life imprisonment was [287 Neb. 388] unconstitutional under Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). We affirm his convictions but remand the cause for resentencing on the conviction of first degree murder.
II. SCOPE OF REVIEW
Apart from rulings under the residual hearsay exception, we will review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination whether the court admitted evidence over a hearsay objection or excluded evidence on hearsay grounds. State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
" [A] district court's conclusion whether an identification is consistent with due process is reviewed de novo, but the court's findings of historical fact are reviewed for clear error." State v. Nolan, 283 Neb. 50, 61, 807 N.W.2d 520, 533 (2012), cert. denied
__ U.S. __, 133 S.Ct. 158, 184 L.Ed.2d 78.
The constitutionality and construction of a statute are questions of law, regarding which we are obligated to reach conclusions independent of those reached by the court below. Scott, supra.
On September 19, 2009, Catrice Bryson was standing outside a friend's house on Curtis Avenue in Omaha, Nebraska, when Gaines pulled into the driveway. Bryson and Gaines spoke for about 10 minutes, during which time Gaines remained seated in his vehicle. At one point during the conversation, Bryson went to her vehicle and reached into the middle console for a
pen. When Bryson turned around to rejoin Gaines, she looked toward Curtis Avenue, saw two men with guns, and heard gunshots.
The two men were in the street behind Gaines' vehicle, one on the driver's side and one on the passenger side. The shooter on the driver's side was an African American with a " [l]ow haircut" and wore a brown shirt with orange writing on it. The shooter on the passenger side was a " light-skinned" [287 Neb. 389] African American with long braids, a white basketball jersey, and a " do-rag."
Bryson heard Gaines say that he had been shot. She ran toward Gaines' vehicle, screaming for the shooters to stop and to leave Gaines alone. The shooter on the driver's side ran east along Curtis Avenue, and the shooter on the passenger side ran west. Gaines subsequently died from the injuries sustained in the shooting. An autopsy revealed that death was caused by a gunshot wound to the back.
After Omaha police officers arrived on the scene, they broadcast a description of one shooter as an African-American male with long braids, a white shirt, and jean shorts. Police also broadcast a description of a " possible suspect" white vehicle that did not have hubcaps.
As Officer Joel Strominger headed toward the location of the shooting, he saw a vehicle that matched the description of the white vehicle. Near the passenger side, he observed an African-American male who was wearing a white T-shirt and dark-colored shorts and had something brown in his hand. Strominger radioed a description of the person to other ...