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State v. Ramirez
Citation: Not availableDocket: S-11-486
Court: Nebraska Supreme Court; February 6, 2014; Nebraska; State Supreme Court
Original Court Document: View Document
Mantich's claims regarding the application of the Miller rule are deemed without merit, as they do not apply to his case during collateral review. The argument that Graham applies to his life sentence for first-degree felony murder is rejected, and his assertion that the sentence is grossly disproportionate is procedurally barred. Consequently, Mantich's trial and appellate counsel were not ineffective for failing to raise these claims. The district court's decision to deny Mantich's motion for postconviction relief without an evidentiary hearing is affirmed, as the records conclusively demonstrate the claims are meritless. Additionally, the rules governing evidence in Nebraska dictate that admissibility is primarily controlled by the Nebraska Evidence Rules, with judicial discretion only applicable where specified. An appellate court reviews evidentiary issues for abuse of discretion, defined as decisions based on unreasonable or untenable reasons. The discretion of the trial court extends to motions for mistrial and new trials, with appellate review limited to instances of abuse. Plain error may be recognized on appeal for evident, unasserted errors that significantly affect a litigant's rights. Demonstrative exhibits serve to assist the jury and are not considered substantive evidence. A defendant cannot introduce new grounds for objections on appeal that were not presented at trial, and the admission of cumulative evidence does not constitute reversible error if supported by other relevant evidence. Should a criminal statute be amended before final judgment, the revised punishment applies unless specified otherwise by the Legislature. Finally, appellate courts retain the right to address plain errors not raised during trial. Sentencing for separate crimes generally allows trial courts discretion to impose concurrent or consecutive sentences; however, Neb. Rev. Stat. 28-1205(3) mandates that sentences for the use of a deadly weapon during a felony must be served consecutively to any other sentence and cannot run concurrently. An appellate court can remand cases for lawful sentencing if an erroneous sentence has been imposed. In the case of Eric A. Ramirez, convicted of multiple felonies including two counts of first-degree murder, the appellate court affirmed his convictions but vacated all sentences, finding the life sentences without parole for the murders unconstitutional. The court ordered resentencing in accordance with statutory mandates, emphasizing that sentences for using a deadly weapon must run consecutively and not concurrently with other sentences. Additionally, the concurrent sentences for attempted second-degree murder, attempted robbery, and criminal conspiracy were vacated to ensure they do not run concurrently with the sentences for using a deadly weapon. The case involved three shootings in Omaha, resulting in two deaths and one injury, with Ramirez being arrested alongside two others, one of whom testified against him. Hernandez witnessed Silva outside making a phone call when he later heard the truck's horn honk. Upon looking outside, he found Silva on the ground with gunshot wounds and a man with a gun nearby, who threatened Hernandez in Spanish, indicating they wanted money. Another man was also present. Hernandez described the armed man as wearing black pants and a black hooded sweatshirt with a goatee, while the second man wore black pants and a gray sweatshirt. Silva sustained two gunshot wounds, one grazing his head and the other entering his upper back, leading to his death at an Omaha hospital. The second incident involved Charles Denton and Hilary Nelsen at an ATM. As Denton exited the van, two hooded men approached and demanded money. One of the men fired a gun, prompting Denton to flee. Denton was later shot in the arm, while Nelsen noted the men were likely not white but could not specify further. Denton described the gun as silver and observed that the armed man had facial hair Cervantes provided testimony detailing his involvement in criminal activities with Ramirez and Castaneda. He stated that he passed a gun wrapped in a blue bandanna to Ramirez, who placed it under his seat. After dropping off a person named Tiny, they encountered a group of individuals from whom Ramirez and Castaneda attempted to rob. When the robbery failed, they returned to the car, claiming the men had no money and were becoming aggressive. Cervantes described their subsequent actions, including spotting a man in a Chevrolet Blazer, where Ramirez shot the man through the vehicle’s window after he honked his horn. Castaneda then pulled the man from the vehicle and searched him, while Ramirez brandished his gun to deter onlookers from intervening. They fled with the man's wallet. Later, while driving near an ATM, Ramirez and Castaneda again exited the car. Hearing gunshots, Cervantes learned that Ramirez shot at a man trying to escape in his van. They continued to South 52nd and Leavenworth Streets, where Ramirez and Castaneda approached Glinsmann at a gas station. Cervantes heard another gunshot and was informed by Ramirez that he shot Glinsmann in the head. The State also called Preston Landell, an operations coordinator from Cricket Communications, to discuss cell phone records related to Ramirez and Castaneda. Landell explained the storage and retrieval process for call and text records, which are maintained for six months. He testified that the records included details about the calls, such as the originating and recipient numbers, duration, and the cell tower used. The State submitted these records for the period of November 9 to 19, 2008, which were accepted without objection. A timeline summarizing this information was created but not officially entered into evidence during this part of the trial. Landell also provided insights into the operation of cell towers. Landell testified about the process by which a caller's cell phone connects to the nearest cell tower to route calls through a switch, which records vital information such as date, time, duration, and phone numbers involved. He noted that while calls generally connect to the closest tower, this is not guaranteed, especially in busy or rural areas. Exhibit 259, a map detailing cell tower locations and the shootings, was introduced but faced objections regarding its foundation. After a voir dire, Landell confirmed the general operation of the system, leading to the court overruling the objection and admitting the exhibit. However, the trial judge later withdrew exhibit 259 from evidence, instructing the jury to disregard it and any related testimony. Ramirez's motion for a mistrial was denied. Additionally, it was discovered that exhibit 224, detailing cell phone communications relevant to the case, had not been admitted previously, but the court allowed it to be included after hearing arguments outside the jury's presence. Exhibit 224 was admitted into evidence by the district court judge as it was deemed a fair representation of previously admitted evidence, specifically a timeline of cell phone calls and texts. Despite Ramirez's motion for a mistrial, which was overruled, the jury found him guilty on all eight counts. Ramirez subsequently filed a motion for a new trial, citing the admission and later withdrawal of exhibit 259 (a map) and the admission of exhibit 224. The court denied this motion, clarifying that the withdrawal of exhibit 259 was a precautionary measure to prevent misleading inferences about location, as it did not assert that the user was in a specific location at a specific time. The court also explained that exhibit 224 served as a summary of evidence rather than substantive evidence and had been referenced multiple times during the trial to aid the jury. Following the denial of the new trial motion, a sentencing hearing was held on December 29, 2010, resulting in Ramirez receiving life imprisonment without parole for counts I and III (murder in the first degree), along with consecutive and concurrent sentences for the other counts related to felonies involving a deadly weapon, attempted murder, attempted robbery, and criminal conspiracy. On April 13, 2011, Ramirez's first appeal was dismissed due to procedural noncompliance regarding fees. He later filed a motion to vacate the conviction, which the district court granted, allowing for a new direct appeal of the original convictions and sentences, leading to the current appeal. The U.S. Supreme Court's decision in Miller v. Alabama established that mandatory life sentences without parole for juvenile offenders violate the Eighth Amendment. Ramirez, born in September 1991 and 17 at the time of his crimes, had his case reviewed following this ruling. In response, the Nebraska Legislature enacted L.B. 44, which revised sentencing and parole procedures for individuals under eighteen. The court directed supplemental briefings to determine if L.B. 44 applied to Ramirez upon remand for resentencing. Ramirez asserted several errors in his appeal: (1) the district court improperly denied his motion for a new trial due to the admission and subsequent retraction of a map (exhibit 259); (2) it similarly erred in denying a new trial based on the admission of a timeline of cell phone activity (exhibit 224) after the parties had rested; (3) his two life sentences violated the Eighth Amendment by not allowing for a hearing on maturity and rehabilitation; and (4) the sentences were unconstitutional and unauthorized under Nebraska law following Miller. The standards of review indicate that evidence admissibility is governed by the Nebraska Evidence Rules, with appellate courts reviewing for abuse of discretion, defined as unreasonable actions contrary to justice or evidence. The trial court's decisions on mistrials and new trial motions are similarly reviewed for abuse of discretion. Additionally, plain error may be recognized when unchallenged errors significantly impact a litigant's rights or the judicial process's integrity. Ramirez argued that the admission of Landell's testimony and exhibit 259, a map detailing the shooting locations, residences, and cell tower sites associated with his phone, was erroneous due to a lack of foundation. He claimed that the district court's later actions—withdrawal of the exhibit, striking of the testimony, and jury admonition—did not rectify the error. Consequently, he contended that the court erred in denying his motions for a mistrial and a new trial. The review of the denial for a new trial is conducted for abuse of discretion. The court found exhibit 259 to be a demonstrative exhibit, intended to assist the jury in understanding evidence rather than serving as substantive proof. The map reflected undisputed facts already admitted, and Ramirez did not contest its portrayal of evidence. His cell phone records and Landell's testimony regarding those records were appropriately admitted. The court determined that the foundation for exhibit 259 was sufficient and noted that the exhibit, while withdrawn, was not substantive evidence. The court concluded there was no abuse of discretion in the district court's rulings, affirming that Ramirez was not harmed by the withdrawal of exhibit 259, which was not necessary for a fair trial. Additionally, Ramirez was limited to his original objection regarding foundation and could not introduce new grounds on appeal. An objection that is overruled on a specific ground does not allow for appellate review on any other grounds, as established in State v. Robinson. The focus here is on Ramirez's claim regarding the district court's erroneous admission of exhibit 259 and related testimony due to insufficient foundation. Under Nebraska Evidence Rule 602, a lay witness cannot testify about objective facts without foundational evidence demonstrating personal knowledge. This rule allows for testimony to establish personal knowledge but is subject to the provisions regarding expert opinion testimony. In State v. Robinson, the defendant challenged the admissibility of cell phone records based on foundation, hearsay, and Daubert standards. The trial court overruled these objections, and the evidence was admitted. The court found that the cell phone records qualified under the business records exception to hearsay rules and that a Daubert challenge was irrelevant since the records did not contain expert opinion testimony. The field engineer's testimony, which aimed to explain the cell phone records rather than provide opinions, was also deemed appropriate. The court concluded that the trial court's admission of the records was not erroneous. Following Robinson, the court also addressed similar issues in State v. Taylor regarding the admission of cell phone records. In Taylor, the defendant challenged the admission of cell phone records as evidence, arguing insufficient foundational support based on the authentication requirements under Neb. Evid. R. 901. The records were authenticated by a Cricket employee, Landell, whose testimony was deemed adequate. The records showed the cell towers utilized by Ramirez' phone during the night of the shootings, and Ramirez conceded the proper admission of both the records and Landell's testimony explaining them. At trial, Ramirez objected to exhibit 259 solely on foundational grounds, not contesting its admissibility as expert testimony or the necessity for a Daubert hearing. He argued that Landell lacked personal knowledge about the routing of calls and the locations of subscribers relative to cell towers. The court found Ramirez's interpretation misguided, affirming that Landell's testimony established sufficient foundation. Landell, as an operational employee, demonstrated a working knowledge of cell phone tower infrastructure, detailing the routing process of calls. He confirmed the accuracy of the addresses and locations on exhibit 259, and Ramirez had the opportunity to cross-examine Landell on these points. Importantly, Landell did not provide opinions regarding the implications of the cell tower locations on Ramirez' whereabouts. Sufficient foundational evidence was established for the admission of exhibit 259, based on Landell's testimony, under rule 602, making its admission not objectionable. Although there are ongoing discussions regarding the reliability and admissibility of cell tower location data and the requirement of a search warrant for tracking information, Ramirez did not contest exhibit 259 on these grounds during the trial. His objection was solely based on foundation, which was deemed adequate. The district court did not abuse its discretion in admitting exhibit 259 and Landell’s testimony, nor did it err in withdrawing exhibit 259 and instructing the jury about it later. Ramirez's motion for mistrial pertaining to exhibit 259 was also denied without error. Regarding exhibit 224, which summarized communications between the involved cell phones and was admitted after the close of evidence, Ramirez argued its admission was erroneous and sought a mistrial. The court found no abuse of discretion in admitting exhibit 224 or in denying Ramirez's mistrial and new trial motions based on this exhibit. Although Ramirez acknowledged that exhibit 224 was referenced during trial and its content derived from previously admitted documents, he argued it was improperly received since it wasn't formally offered during the evidentiary phase. The case had been submitted to the jury for deliberation prior to the issues raised about exhibit 224, further complicating his position. Ultimately, the court dismissed these claims, finding no merit in Ramirez's objections regarding both exhibits. Exhibit 224 was not initially received into evidence, prompting the district court judge to address its status with counsel. The judge concluded that the exhibit contained information already presented in evidence and referenced during arguments, determining it would be included for the jury's deliberation. Despite Ramirez's motion for a mistrial, which was denied, he later sought a new trial on the same grounds unsuccessfully. The exhibit was categorized as demonstrative, intended to assist the jury in understanding the case, and synthesized information from other exhibits that were already admitted without objection. The court noted that because it was cumulative, its erroneous admission did not constitute reversible error. Ramirez’s attorney acknowledged that exhibit 224 was a summary of existing evidence and deemed cumulative. While the proper procedure for reopening the record was not strictly followed, it was concluded that this did not prejudice the case. Consequently, the court found no abuse of discretion in admitting the exhibit and upheld the denial of both the mistrial and new trial motions. Additionally, Ramirez contested his life sentence without parole for counts I and III, arguing it was erroneous. This claim arose in light of the U.S. Supreme Court's ruling in Miller v. Alabama, which deemed such mandatory sentences for juveniles unconstitutional. The court ordered supplemental briefing to address the implications of the Miller decision. The State argued that Ramirez' sentences were not affected by Miller v. Alabama because they were not classified as "sentences without the possibility of parole." The State asserted that the district court erroneously included the phrase "without the possibility of parole" in Ramirez' life sentences, which, under Nebraska law, should simply be termed as life imprisonment. This interpretation allows for the possibility of parole upon commutation to a term of years. The State also contended that if Miller were applicable, Ramirez’ life sentences should be vacated and remanded for resentencing based on the factors outlined in Miller and reflected in Neb. Rev. Stat. § 28-105.02. Ramirez similarly argued that the district court improperly added the "without the possibility of parole" phrase, asserting that Miller applied to his case and rendered his life sentences unconstitutional, warranting vacatur and resentencing under § 28-105.02. The court recognized parallels with State v. Castaneda, where a juvenile was sentenced to life imprisonment without parole, and determined that Miller was applicable in both cases as they were on direct appeal. Following oral arguments, the Nebraska Legislature enacted L.B. 44, amending the law regarding penalties and parole procedures for Class IA felonies committed by individuals under eighteen. Under § 28-105.02, juveniles convicted of such felonies now face a maximum sentence of life imprisonment and a minimum of forty years, with the court required to consider mitigating factors during sentencing. A convicted individual may present various mitigating factors to the court, including their age at the time of the offense, impulsiveness, family and community background, ability to understand the consequences of their actions, intellectual capacity, and results of a mental health evaluation conducted by a licensed adolescent professional. This evaluation should encompass interviews with the individual's family to gather comprehensive developmental, medical, and psychological histories. Under Neb. Rev. Stat. 83-1,110.04, offenders under age eighteen at the time of their offense, if denied parole, must be considered for parole annually. During these hearings, the Board of Parole evaluates multiple factors, including educational and court documents, participation in rehabilitation programs, age and maturity at the time of the offense, understanding of risks, intellectual capacity, involvement in the offense, rehabilitation efforts, and any additional mitigating circumstances presented by the offender. In the context of Ramirez, upon his sentencing for first-degree murder, the district court was mandated to impose a life sentence, which under Neb. Rev. Stat. 28-105(1) effectively meant life without parole, deemed unconstitutional under the ruling in Miller. Consequently, Ramirez’s life sentences must be vacated, and he is to be resentenced. Following the enactment of L.B. 44, both parties agree that it should apply upon remand for resentencing. The court, referencing State v. Castaneda, confirmed that L.B. 44's application does not breach ex post facto principles and allows for mitigation in sentencing, thus vacating Ramirez's sentences and remanding for resentencing in accordance with L.B. 44’s provisions. Corrections are needed regarding the sentencing for murder and other related offenses. The appellate court identified plain error in the district court’s sentencing order concerning the use of a deadly weapon to commit a felony (counts II, IV, and VII) and other charges such as attempted second-degree murder (count V), attempted robbery (count VI), and criminal conspiracy (count VIII). Plain error can be recognized on appeal when an obvious mistake, not raised during trial, adversely impacts a party's significant rights and undermines the judicial process. Specifically, the sentences for the use of a deadly weapon should have been ordered to run consecutively to all other sentences, rather than concurrently, and the sentences for attempted second-degree murder, attempted robbery, and criminal conspiracy should not have been served concurrently with the deadly weapon sentences. The district court’s December 30, 2010, order detailed Ramirez's convictions and outlined the sentences imposed: life imprisonment for counts I and III (murder in the first degree), 15 years for counts II, IV, and VII (use of a deadly weapon), and various concurrent sentences for counts V (attempted murder), VI (attempted robbery), and VIII (criminal conspiracy). The judge confirmed these sentences during the hearing, emphasizing that the sentences for the use of a deadly weapon must be served consecutively to the underlying convictions. Count 6 imposes a sentence of 12 to 15 years for attempted robbery. Count 7, regarding the use of a deadly weapon during this felony, mandates an additional 12 to 15 years, to be served consecutively. Count 8, for criminal conspiracy, also carries a 12 to 15-year sentence, which is concurrent with all other counts. The sentences for Counts 1 and 2 are to be served concurrently with those for Counts 3 and 4, and also with Counts 5 and 6. However, there is a legal misinterpretation regarding the use of a deadly weapon; Nebraska law (Section 28-1205(3)) requires that sentences for using a deadly weapon must be served consecutively to any other sentences, and not concurrently. The district court incorrectly allowed for concurrent sentences relating to the use of a deadly weapon in Counts II, IV, and VII. Additionally, the court erroneously ordered Counts V, VI, and VIII to run concurrently with the weapon use convictions. This misapplication of the law constitutes plain error. The appellate court has the authority to remand the case for lawful sentencing where an error has occurred. Sentences for counts II (use of a deadly weapon), IV (use of a deadly weapon), and VII (use of a deadly weapon) are vacated, along with sentences for count V (attempted second degree murder), count VI (attempted robbery), and count VIII (criminal conspiracy). The district court is directed to resentence Ramirez, ensuring that sentences for the use of a deadly weapon run consecutively to all other sentences and not concurrently. The court did not err in accepting evidence related to exhibits 259 and 224, nor in denying motions for mistrial and new trial based on these exhibits. Ramirez's convictions are affirmed; however, life sentences imposed for counts I and III were deemed unconstitutional under Miller v. Alabama, necessitating their vacation and remand for resentencing in line with L.B. 44. The district court's initial sentencing order contained plain errors by ordering some sentences to run concurrently, which are also vacated. All sentences are vacated, and the case is remanded for resentencing.