Appeal from the District Court for Scotts Bluff County: TRAVIS P. O'GORMAN, Judge.
James R. Mowbray and Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, and CASSEL, JJ. MCCORMACK and STACY, JJ., not participating.
[293 Neb. 201] Miller-Lerman, J.
NATURE OF CASE
Dylan Cardeilhac was convicted by a jury of second degree murder in the district court for Scotts Bluff County. The court sentenced Cardeilhac, who was 15 years old at the time of the murder, to imprisonment for 60 years to life. Cardeilhac appeals his conviction and sentence. He claims that the court improperly instructed the jury that it would be required to deliberate until 9 p.m. before it could break for the day, that juror misconduct requires a new trial, and that his sentence should be vacated because the sentencing process failed to
[293 Neb. 202] comply with proper juvenile sentencing principles. We affirm Cardeilhac's conviction and sentence.
STATEMENT OF FACTS
In February 2014, when he was 15 years old, Cardeilhac was being detained in the juvenile section of the Scotts Bluff County Detention Center (SBCDC) awaiting trial on charges which included one count of robbery. At around 2 a.m. on February 14, Amanda Baker, a correctional officer employed at SBCDC, was performing a bed check in the juvenile males section of the facility. Videos from SBCDC show that Baker entered Cardeilhac's cell and that she leaned forward to look at something on the floor to which Cardeilhac was pointing. Baker got down on her hands and knees and took a closer look. As Baker rose to one knee and attempted to stand, Cardeilhac moved behind her and put his arms around her neck and face. The two fell to the ground, with Baker face down and Cardeilhac on her back. Cardeilhac kept his arms wrapped around Baker's neck and released his arms only after Baker stopped struggling. Cardeilhac then searched Baker's person and retrieved keys. He left his cell and was later found in another cell. Minutes after Cardeilhac left his cell, another correctional officer found Baker lying on the cell floor. Despite the efforts of other correctional offices and emergency responders to revive her, Baker died. An autopsy showed that Baker died of asphyxia due to manual strangulation.
Evidence at trial indicated that prior to February 14, 2014, Cardeilhac and other detainees in the juvenile section of SBCDC had discussed plans to escape from the facility. The plans included, inter alia, " choking out" a guard in order to get keys. Cardeilhac indicated during such discussions that he would be willing to choke a guard. Other evidence indicated that another juvenile detainee pressured Cardeilhac to take part in an escape. After Cardeilhac choked Baker and left his cell, he went to other juveniles' cells, but they declined to escape with him. He eventually went to another cell, where he was found by guards.
[293 Neb. 203] The State charged Cardeilhac with first degree murder. At trial, the jury was given the option of convicting Cardeilhac of first degree murder, second degree murder, or unintentional manslaughter. The evidence at trial included testimony by various witnesses. Videos from SBCDC depicting the events in Cardeilhac's cell on February 14, 2014, were received into evidence and played for the jury.
At the jury instruction conference, Cardeilhac objected to an instruction in which the court was to advise the jury regarding its deliberations. Cardeilhac objected to the portion of the instruction that stated, " If you do not agree on a verdict by 9:00 o'clock p.m., you may separate and return for further deliberations at 8:30 o'clock a.m. tomorrow." Cardeilhac's counsel argued that requiring the jury to deliberate until 9 p.m., rather than 5 p.m., put undue pressure on the jurors and would " force them into a decision because they are told they have to be here until nine o'clock, which is not typical business hours." The court stated that its practice was to give the jury the option of staying until 9 p.m., but that " if the jur[ors] tell me at 4:30 they have had a long day and they would like to separate, I have no problem with that either." The court overruled Cardeilhac's objection and gave the instruction as written.
After closing arguments, the case was submitted to the jury at 11:03 a.m. At approximately 7:30 p.m. that same day, the jury returned to the courtroom and delivered its verdict finding Cardeilhac guilty of second degree murder.
Cardeilhac thereafter filed a motion for a new trial. At the hearing on the motion, Cardeilhac contended that a new trial was required because of juror misconduct. In support of his allegations, Cardeilhac offered the affidavit of one of the jurors into evidence. In the affidavit, the juror stated, inter alia, that after approximately 6 hours of deliberation, she was the sole juror who wanted to convict Cardeilhac of manslaughter rather than second degree murder. She stated that some other jurors made statements trying to persuade her to change her vote and
[293 Neb. 204] that two of the jurors were " extremely belittling and belligerent" to her. The juror stated the following:
One female juror asked if she could show [A]ffiant what it would be like to [be] choked. Affiant agreed to this. While Affiant was sitting in a chair, the juror came up behind her and started to demonstrate on Affiant what it was like to be chocked [sic] from behind. The juror had her arm in front of [A]ffiant's throat and was blocking her air passage, but that choking did not cause her to panic. It was when the juror then pushed her chest against the back of Affiant's head, pushing it forward causing the pressure on the neck to increase that Affiant began to panic.
The juror stated that soon after this demonstration, she changed her vote from manslaughter to second degree murder; the juror stated, however, that she did not feel pressured to change her vote. The juror also stated that she did not believe that what she called the " re-enactment of the choking performed on her" accurately conformed to the evidence presented in court, which evidence included the video that showed Cardeilhac choking Baker.
The State objected to receipt of the affidavit into evidence on the basis of Neb. Evid. R. 606, Neb. Rev. Stat. § 27-606 (Reissue 2008), which generally precludes a juror from testifying as to matters or statements occurring during the course of the jury's deliberations. Section 27-606, however, allows a juror to " testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror."
The district court ruled that most of the juror's affidavit was not admissible under § 27-606. The court stated that the only portions of the affidavit that were possibly admissible were those wherein the juror described the " re-enactment" of the choking and where she later stated that she did not think the " re-enactment" accurately conformed to the evidence. The
[293 Neb. 205] court concluded, however, that even those portions of the affidavit did not show by a preponderance of the evidence that extraneous prejudicial information had been considered by the jury. The court stated that the " re-enactment" was " not information that originated outside of the jury room or the record" and that instead it was " simply a critical examination of the evidence and nothing extraneous." The court stated that an evidentiary hearing was not necessary and overruled the motion for a new trial.
A sentencing hearing was conducted at which considerable evidence was received. Cardeilhac presented live testimony by two witnesses. The first witness was the mother of a friend of Cardeilhac; she testified regarding Cardeilhac's character and problems that he had had at home. The second witness was Dr. Kayla Pope, who was certified in child and adolescent psychiatry. Dr. Pope testified generally regarding differences in brain development and brain functioning between adults and adolescents and, as a result of her examination of Cardeilhac's treatment records and interviews, testified specifically regarding Cardeilhac's development and behavior.
Dr. Pope had talked with Cardeilhac, his mother, and his friend's mother, and so she testified regarding Cardeilhac's particular circumstances. Dr. Pope testified, inter alia, that Cardeilhac had " become much more emotionally reactive" after his parents divorced when he was 7 or 8 years old and that he suffered further trauma when he was placed into foster care after a finding of abuse and neglect. Dr. Pope opined that at the time he choked Baker, Cardeilhac was " only thinking in the moment" and " reacting to this impulsive need to get out of detention," and that he was " not thinking like a mature adult as to the consequences and whether this was a realistic plan." She also opined that because of his particular circumstances, Cardeilhac was " more susceptible to peer pressure than a normally developing adolescent," and that " there was a lot going on with other peers in the detention center and . . . he was affected by that." Dr. Pope speculated that
[293 Neb. 206] Cardeilhac's behavior and maturity would have developed by the time he reached age 25 or 30, but she acknowledged that she was not a forensic psychiatrist and that she did not do risk assessments.
After the parties presented their arguments at sentencing, and before it imposed sentence, the court stated, inter alia:
In arriving at your sentence I have considered your age, your mentality, your education, your experience, your social and cultural background, your past criminal record, the motivation for your offense, and the amount of violence involved. I have also considered the testimony that I heard this afternoon as well.
In addition to the live testimony presented by Cardeilhac at the sentencing hearing, the court considered other evidence, including the presentence investigation report. The court set forth the reasoning behind its sentencing decision and stated that the crime for which Cardeilhac was convicted was " just a senseless act of violence" that resulted in a child losing a mother, parents losing a child, and a community losing one of its members. The court stated that in reviewing the record, it could not find an indication of remorse on Cardeilhac's part. Instead, the court stated the record showed that Cardeilhac's behavior in jail had been " rude, offensive, [and] noncompliant" and that Cardeilhac was " somebody who is very dangerous at this point in time and somebody that society needs protection from." The court acknowledged that the case was " also tragic . . . from [Cardeilhac's] standpoint," because his life had " gone very wrong very early."
The court sentenced Cardeilhac to imprisonment for not less than 60 years and not more than life. The court indicated that by virtue of the sentence imposed, Cardeilhac would " be eligible for parole at some point in time." The court ordered the sentence to be served consecutively to a ...