Sentences: Appeal and Error. An appellate court will not
disturb a sentence imposed within the statutory limits absent
an abuse of discretion by the trial court.
Judges: Words and Phrases. A judicial abuse of discretion
exists when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters
submitted for disposition.
Constitutional Law: States: Minors: Convictions: Sentences:
Probation and Parole. It is unconstitutional for a state to
impose a sentence of life imprisonment without parole on a
juvenile convicted of a nonhomicide offense.
Minors: Convictions. Juvenile offenders convicted of
nonhomicide crimes must be given some meaningful opportunity
to obtain release based on demonstrated maturity and
Minors: Convictions: Homicide: Sentences. In Miller v.
Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012), the U.S. Supreme Court declined to extend a
categorical bar of no life-without-parole sentences to
juveniles convicted of homicide.
Minors: Sentences. A sentencer must take into account how
children are different and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.
Constitutional Law: States: Courts: Time: Appeal and Error.
When a new substantive rule of constitutional law controls
the outcome of a case, the federal Constitution requires
state collateral review courts to give retroactive effect to
Minors: Convictions: Homicide: Sentences. A juvenile offender
convicted of a homicide offense may be sentenced to life
imprisonment without parole so long as the sentencer
considered specific, individualized factors before handing
down that sentence.
Neb. 23] 9. Sentences: Judgments. The appropriateness of a
sentence is necessarily a subjective judgment and includes
the sentencing judge's observations of the
defendant's demeanor and attitude and all of the facts
and circumstances surrounding the defendant's life.
from the District Court for Douglas County: J Russell Derr,
Jeffery A. Pickens, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
2000, a jury found Earnest D. Jackson guilty of first degree
murder but acquitted him of the use of a deadly weapon
charge. The court sentenced him to life imprisonment for the
first degree murder conviction. On direct appeal, we affirmed
Jackson's conviction and sentence.
Jackson's appeal from the district court's order
resentencing him for his first degree murder conviction. At
the time of the crime, Jackson's age was 17 years 10
months. The resentencing was required under the U.S. Supreme
Court's decisions in Miller v.
Alabama and Montgomery v.
Louisianaand this court's decision in State
v. Mantich. Following a full evidentiary hearing and
arguments, Jackson was resentenced [297 Neb. 24] in
accordance with Nebraska statutes. Jackson appeals his
resentencing. We affirm.
of Crime and Direct Appeal In Jackson's direct appeal, we
set forth the facts upon which his conviction was supported.
On August 31, 1999, Robert Sommerville, Shawon McBride, Dante
Chillous, and Jackson were riding in a gray Cadillac, without
a particular destination. They ended up near the Redman
Apartments, where they conversed in the parking lot with a
group of people. Sommerville testified that they spoke with
Shalamar Cooperrider, then followed Cooperrider to his
aunt's house, where Chillous and Jackson got out of the
car. At some point, McBride picked up Cooperrider and Jackson
at Jackson's house and dropped them off at an alley a
block south of Redman Avenue.
Perry resided in an apartment located at 4614 Redman Avenue
with his mother, Margaret Parrott, and his sister Elizabeth
Williams. On the evening of August 31, 1999, Parrott and
Perry were outside the apartment until Parrott went inside at
11:30 p.m. Perry stayed outside with Elexsis Fulton.
Perry and Fulton were still outside, Cooperrider approached
Perry and the two began talking. Fulton, who had never met
Cooperrider before that night, described him as "light
brown" with a brush haircut, wearing a tan shirt and tan
pants. During the conversation, two more men, whom Fulton
described, respectively, as light-skinned with a ponytail and
dark-skinned with braided hair and a blue "FUBU"
brand shirt, came out of the apartment building one door
north of Perry's door. At trial, Fulton identified the
ponytailed man as Chillous and the man with braids and a FUBU
shirt as Jackson. The jury received other testimony that
Jackson did not have his hair in braids, but that Chillous
wore his hair in a ponytail. Fulton observed Jackson,
Cooperrider, and Chillous leave the Redman Apartments in a
gray Cadillac after Cooperrider's conversation with
Neb. 25] After the Cadillac departed, Perry entered his
apartment and retrieved a .22-caliber Ruger handgun. Parrott
and Williams followed Perry out of the apartment, and Parrott
observed Perry bending down beside a bush by 4612 Redman
Avenue, the apartment building opposite 4614 Redman Avenue.
Parrott reentered the apartment.
testified that the gray Cadillac returned later that evening
and that Jackson, Cooperrider, and Chillous got out of the
Cadillac. Fulton further testified that Cooperrider had
changed from tan clothing to black clothing. Fulton observed
the three men approach Perry, at which time, Cooperrider and
Perry began arguing. Chillous and Jackson went across the
street to Chillous' home, and on their way back, Fulton
saw Chillous try to hand Cooperrider a gun. Fulton testified
that Jackson got involved in the argument, then pulled out a
gun and struck Perry in the head three times. Fulton then ran
inside the building and continued to watch from an upstairs
window. Fulton testified that Chillous was the first to fire
a gun and that he saw Perry being shot in the back while
lying on his stomach.
testified at Jackson's trial that he had no doubt that
Jackson shot Perry. Fulton had not known the names of
Jackson, Chillous, or Cooperrider before bystanders (who had
not witnessed the shooting) told Fulton the names of the
three men. Jackson's counsel read into evidence
Fulton's testimony from the preliminary hearing that
Fulton had learned Jackson's, Cooperrider's, and
Chillous' names from the police. Fulton testified that he
had identified Jackson, Cooperrider, and Chillous at the
preliminary hearing as the men who shot Perry. Fulton had not
previously identified Jackson in a photographic or police
heard 20 to 30 shots that sounded as if they were coming from
different types of guns at different distances; Williams
testified that the sound resembled firecrackers. Parrott and
Williams ran outside after hearing gunshots and found Perry
on the sidewalk with bullet wounds in his stomach. Parrott
[297 Neb. 26] removed a gun from Perry's belt and gave it
to Williams, telling her to get rid of it. Parrott testified
that when she removed Perry's gun by the handle, it was
testified to seeing a man, dressed in black with dark skin
and a brush haircut, fleeing the scene after Perry's
shooting, but she did not know and could not identify
Jackson. McBride also testified that he saw a man in black
firing a gun, standing by the bushes located near 4612 Redman
Avenue. Although McBride did not see the shooter's face,
he stated that the shooter wore the same kind of clothing
Cooperrider had been wearing. McBride confirmed that he had
seen Jackson with Cooperrider shortly before the shooting.
aunt testified that at 11:19 p.m. on August 31, 1999, Jackson
knocked on her door, entered her home, talked with her, and
went into her basement around 11:30 p.m. to play a video
game. Approximately 20 minutes later, Jackson's cousin
knocked on the aunt's bedroom door to get the cordless
telephone and asked her if she had heard gunshots. She had
not. Jackson's aunt and cousin testified that Jackson had
stayed at the aunt's home that night.
Harold Scott of the Omaha Police Department arrived at the
scene of the shooting at approximately 12:30 a.m. and
discovered Perry's body on the sidewalk in front of 4614
Redman Avenue, surrounded by a crowd of people. Omaha police
officer Stefan Davis, upon nearing the scene of the murder,
was notified of people who had fled the area. Later, Davis
received notification that all suspects were in custody.
Jackson, however, was not arrested until October 9, 1999.
Jerry Jones, who performed the autopsy, determined that Perry
died of multiple gunshot wounds that perforated his heart,
both lungs, liver, spleen, colon, and kidney. Jones testified
that he had examined Perry's body thoroughly and that he
did not see abrasions on Perry's head or scalp.
informations were filed against Jackson, Cooperrider, and
Chillous in Douglas County District Court, charging each of
them with first degree murder and use of [297 Neb. 27] a
deadly weapon during the commission of a felony in the death
of Perry. The cases were consolidated for trial on the
State's motion, but the district court subsequently
vacated this order on the State's motion. Jackson's
trial, having the lowest docket number, began first, followed
by Cooperrider's and Chillous' trials.
jury found Jackson guilty of first degree murder, but
acquitted him of using a deadly weapon to commit a felony.
Jackson then filed a motion for new trial, claiming that
Fulton's testimony regarding Cooperrider and Chillous did
not have proper foundation, that the jury's verdict was
inconsistent and self-contradictory, that the court addressed
the jury outside the parties' presence after the jury
retired for deliberations, and that there was insufficient
evidence to sustain a conviction of first degree murder. The
district court overruled Jackson's motion and sentenced
him to life imprisonment. Further facts surrounding
Perry's shooting are set forth below as necessary.
Cooperrider's own trial, he testified that he was present
at the scene, that he fired his handgun several times in
self-defense, and that he did not see Jackson at the scene.
Cooperrider also testified that Jackson was not one of the
people who shot Perry. Instead, Cooperrider testified that
Sommerville and one of Sommerville's friends were present
at Perry's shooting. Cooperrider testified that
Sommerville wore his hair in braids at the time of
Perry's death, in a hairstyle similar to Jackson's.
At Chillous' trial, Cooperrider again testified that
Sommerville and a friend of Sommerville's were present at
the scene of Perry's shooting, but he did not see Jackson
or anyone else at the scene. Juries acquitted both
Cooperrider and Chillous.
Kraft, Cooperrider's attorney, submitted an affidavit
stating that prior to Jackson's trial, Jackson's
counsel contacted Kraft to inform Kraft of his intent to
subpoena Cooperrider as a witness on Jackson's behalf for
Jackson's trial. Kraft informed Jackson's counsel
that because Cooperrider [297 Neb. 28] was awaiting trial on
identical charges in the same matter, he would not be willing
to testify and would invoke his Fifth Amendment right against
self-incrimination and refuse to testify if called. Jackson
served Kraft with a subpoena directing Cooperrider's