State v. Ninham, No. 2008AP1139.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtANNETTE KINGSLAND ZIEGLER, J.
Citation2011 WI 33,797 N.W.2d 451
Decision Date20 May 2011
Docket NumberNo. 2008AP1139.
PartiesSTATE of Wisconsin, Plaintiff–Respondent,v.Omer NINHAM, Defendant–Appellant–Petitioner.

797 N.W.2d 451
2011 WI 33

STATE of Wisconsin, Plaintiff–Respondent,
v.
Omer NINHAM, Defendant–Appellant–Petitioner.

No. 2008AP1139.

Supreme Court of Wisconsin.

Oral Argument Jan. 5, 2011.Decided May 20, 2011.


[797 N.W.2d 455]

For the defendant-appellant-petitioner there were briefs by Frank M. Tuerkheimer of Godfrey & Kahn, S.C., and Bryan Stevenson of Equal Justice Initiative, and oral argument by Bryan Stevenson.For the plaintiff-respondent the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.Amicus curiae briefs were filed on behalf of Legal Assistance to Institutionalized Persons Project by Byron C. Lichstein and the Frank J. Remington Center, Madison, Counsel for Wisconsin Association of Criminal Defense Lawyers by Robert R. Henak, Jake L. Remington and Henak Law Office, S.C., Milwaukee, Wisconsin Psychiatric Association and the Wisconsin Psychological Association by G. Michael Halfenger, Linda M. Annoye,

[797 N.W.2d 456]

Kellen C. Kasper and Foley & Lardner, LLP, Milwaukee, and Wisconsin Council on Children and Families by Sarah A. Huck, Christopher R. Bub and Reinhart Boerner Van Deuren, S.C., Milwaukee.ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of a published decision of the court of appeals, State v. Ninham, 2009 WI App 64, 316 Wis.2d 776, 767 N.W.2d 326, which affirmed an order of the Brown County Circuit Court 1 denying the defendant's post-conviction motion for sentencing relief under Wis. Stat. § 974.06 (2007–08).2

¶ 2 A jury convicted the defendant Omer Ninham (Ninham) of first-degree intentional homicide and physical abuse of a child for the death of 13–year–old Zong Vang (Vang). Ninham was 14 years old at the time of the offense. The circuit court sentenced Ninham to life imprisonment without the possibility of parole.3

¶ 3 Ninham mounts a categorical constitutional challenge, arguing that sentencing a 14–year–old to life imprisonment without parole is cruel and unusual in violation of the Eighth Amendment of the United States Constitution and Article I, Section 6 of the Wisconsin Constitution. In the alternative, Ninham seeks sentence modification on the grounds that (1) his sentence is unduly harsh and excessive; (2) new scientific research regarding adolescent brain development constitutes a new factor that frustrates the purpose of the sentence; and (3) the circuit court relied on an improper factor when imposing the sentence. We disagree with Ninham on all four grounds, and accordingly, we affirm the decision of the court of appeals.

¶ 4 First, we hold that sentencing a 14–year–old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional. We arrive at our holding by applying the two-step approach employed by the United States Supreme Court, most recently in Graham v. Florida, ––– U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). First, we conclude that Ninham has failed to demonstrate that there is a national consensus against sentencing a 14–year–old to life imprisonment without parole when the crime is intentional homicide. Second, we conclude in the exercise of our own independent judgment that the punishment is not categorically unconstitutional.

¶ 5 In regard to Ninham's second argument, we conclude that his sentence of life imprisonment without the possibility of parole is not unduly harsh and excessive. Under the circumstances of this case, Ninham's punishment is severe, but it is not disproportionately so.

¶ 6 Third, we conclude that Ninham has not demonstrated by clear and convincing evidence that the scientific research on adolescent brain development to which he refers constitutes a “new factor.” While the studies themselves may not have been in existence at the time of Ninham's sentencing, the conclusions they reached were widely reported.

[797 N.W.2d 457]

¶ 7 Fourth, we conclude that Ninham has not demonstrated by clear and convincing evidence that the circuit court actually relied upon the religious beliefs of Vang's family when imposing Ninham's sentence.

I. FACTUAL BACKGROUND

¶ 8 We describe the facts of this case with an understanding that this horrific and senseless crime cannot adequately be reduced into words. The terror experienced by the victim and the hurt suffered by his family and friends is, in a word, unimaginable.

¶ 9 On September 24, 1998, around dusk, 13–year–old Vang was bicycling home along Webster Avenue in Green Bay, Wisconsin. Vang's older brother had sent Vang to the grocery store for tomatoes. Vang was returning home on his bicycle, carrying a plastic grocery bag filled with tomatoes, when he was approached by five juveniles: 14–year–old Ninham, 13–year–old Richard Crapeau (Crapeau), 13–year–old Jeffrey P., 14–year–old Amanda G., and 14–year–old Christin J.

¶ 10 Ninham and the other four juveniles did not know or recognize Vang. Moreover, by all accounts, Vang never said or did anything to provoke the five juveniles. Rather, at the time, Crapeau was upset with his mother and “wanted to fight or see a fight.” Consequently, Crapeau said to Ninham, “Let's mess with this kid,” and Ninham responded, “ ‘I got your back,’ meaning he would back [Crapeau] up in a fight.”

¶ 11 Ninham and Crapeau began by verbally taunting Vang, while the other three juveniles “egg[ed]” them on. Ninham and Crapeau's assaults escalated into physical attacks. Crapeau bumped into Vang's shoulder and yanked his bicycle away from him. Crapeau also grabbed Vang's grocery bag out of his hands and threw it in the direction of St. Vincent's Hospital, located along the same street. When Vang asked for his bicycle back, Ninham punched Vang, knocking him down.

¶ 12 Vang got up and started running towards the nearby St. Vincent's Hospital parking ramp. All five juveniles chased after Vang, eventually catching up to him on the top, or fifth floor, of the parking ramp. When they caught up to him, Crapeau punched Vang in the face. Vang repeatedly asked why they were trying to hurt him and pleaded with them to leave him alone. Instead, Ninham and Crapeau began pushing Vang back and forth between them, in a game Jeffrey P. referred to as “chicken.” Ninham punched Vang in the chest as he pushed him back and forth.

¶ 13 Ninham then pinned Vang by his wrists against the parking ramp's concrete wall. While Vang squirmed to get out of Ninham's grasp, Crapeau again punched Vang in the face. According to Crapeau, Vang was crying and screaming, “ ‘Let me go.’ ”

¶ 14 With Ninham still holding Vang by his wrists, Crapeau grabbed Vang's ankles. Ninham and Crapeau then began swinging Vang back and forth out over the parking ramp's concrete wall—a drop that measured nearly 45 feet to the ground. Vang was crying and screaming, begging Ninham and Crapeau not to drop him. While swinging Vang out over the wall, Crapeau let go of Vang's feet and told Ninham to “[d]rop him.” Ninham let go of Vang's wrists, and in Crapeau's words, Vang “just sailed out over the wall.”

¶ 15 At the same time, approximately 8:00 p.m., bystander Steven Heraly was in his vehicle exiting the St. Vincent's Hospital parking ramp when he heard what sounded like a “bag of wet cement hitting the pavement.”

[797 N.W.2d 458]

¶ 16 Vang landed on his back on the parking ramp's paved exit lane, 12 feet from the base of the ramp.

¶ 17 Rescue personnel, dispatched at 8:03 p.m., detected a faint pulse from Vang. Vang was transported to St. Vincent's Hospital where physicians were unable to revive him.

¶ 18 An autopsy revealed that Vang suffered a blunt impact to his head and trunk and died from craniocerebral trauma due to a fall from height.

¶ 19 Ninham and the other four juveniles never checked on Vang's condition and instead ran from the scene. Still, the Green Bay Police Department was able to focus its investigation on the five juveniles after some of them, in particular, Jeffrey P. and Amanda G., indicated to relatives and police that they knew who was responsible for Vang's death.

¶ 20 In his statement to police, Jeffrey P. described how Ninham stood for several seconds looking over the edge of the wall at Vang below. Ninham then looked at Jeffrey P. and said, “Don't say nothing. Better not say shit.”

II. PROCEDURAL POSTURE

¶ 21 On June 14, 1999, Ninham was charged with first-degree intentional homicide in violation of Wis. Stat. § 940.01(1) (1997–98) and physical abuse of a child contrary to Wis. Stat. § 948.03(2)(b) (1997–98), both as a party to a crime under Wis. Stat. § 939.05 (1997–98).4 The charge of first-degree intentional homicide subjected Ninham to the jurisdiction of criminal court. See Wis. Stat. § 938.183(1)(am) (1997–98).5

¶ 22 On October 13, 1999, prior to trial on the aforementioned charges, the State charged Ninham with one count of threat to a judge in violation of Wis. Stat. § 940.203(2) (1999–00) and three counts of intimidation of a witness in violation of Wis. Stat. § 940.43(3) (1999–00). The complaint alleged that while Ninham was detained in Brown County's juvenile detention facility, he threatened the life of Judge Richard J. Dietz, the circuit court judge then presiding over Ninham's case. The complaint further alleged that upon learning of the other juveniles' statements to police, Ninham threatened to conduct a “drive by” of Jeffrey P.'s house, to “rape and kill” Amanda G., and to arrange for the killing of Crapeau's sister.

¶ 23 On the initial charges of first-degree intentional homicide and physical abuse of a child, Ninham's case proceeded to a four-day jury trial. At trial, Ninham's defense was that he was not there on the parking ramp on the evening of September 24, 1998, and even if he was, he did not intend to drop Vang from the edge.6 On

[797 N.W.2d 459]

March 24, 2000, the jury convicted Ninham of both first-degree intentional homicide and physical abuse of a child.

¶ 24 The circuit court conducted a sentencing hearing on June 29, 2000. At...

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44 practice notes
  • State v. Ellison, No. 33215-2-III
    • United States
    • Court of Appeals of Washington
    • June 14, 2016
    ...not as morally reprehensible as criminal behavior of adults. State v. Ninham, 2009 WI App 64, 316 Wis. 2d 776, 781, 767 N.W.2d 326, aff'd, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451. In addition, according to Roper, children are more vulnerable or susceptible to negative influences and pee......
  • State v. Dowdy, No. 2010AP772–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 14, 2012
    ...was most recently articulated in State v. Harbor, 2011 WI 28, ¶¶ 35–52, 333 Wis.2d 53, 797 N.W.2d 828. See also State v. Ninham, 2011 WI 33, ¶¶ 88–90, 333 Wis.2d 335, 797 N.W.2d 451. 4. Wisconsin Stat. § 940.225(2)(a) (2001–02) provides that whoever “[h]as sexual contact or sexual intercour......
  • State v. Cummings, Nos. 2011AP1653–CR, 2012AP520–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 24, 2014
    ...sentence modification must show the existence of a “new factor” unknown to the court at the time of sentencing. See, e.g., State v. Ninham, 2011 WI 33, ¶ 88, 333 Wis.2d 335, 797 N.W.2d 451. [850 N.W.2d 929] ¶ 71 In the absence of a new factor, a circuit court has authority to modify a sente......
  • State v. Wiedenhoeft, No. 2011AP2188.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 17, 2014
    ...within “defined parameters,” and “[a] court cannot base a sentence modification on reflection and second thoughts alone.” State v. Ninham, 2011 WI 33, ¶ 88, 333 Wis.2d 335, 797 N.W.2d 451;State v. Harbor, 2011 WI 28, ¶ 35, 333 Wis.2d 53, 797 N.W.2d 828. Generally, a circuit court may modify......
  • Request a trial to view additional results
46 cases
  • State v. Ellison, No. 33215-2-III
    • United States
    • Court of Appeals of Washington
    • June 14, 2016
    ...not as morally reprehensible as criminal behavior of adults. State v. Ninham, 2009 WI App 64, 316 Wis. 2d 776, 781, 767 N.W.2d 326, aff'd, 2011 WI 33, 333 Wis. 2d 335, 797 N.W.2d 451. In addition, according to Roper, children are more vulnerable or susceptible to negative influences and pee......
  • State v. Dowdy, No. 2010AP772–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • February 14, 2012
    ...was most recently articulated in State v. Harbor, 2011 WI 28, ¶¶ 35–52, 333 Wis.2d 53, 797 N.W.2d 828. See also State v. Ninham, 2011 WI 33, ¶¶ 88–90, 333 Wis.2d 335, 797 N.W.2d 451. 4. Wisconsin Stat. § 940.225(2)(a) (2001–02) provides that whoever “[h]as sexual contact or sexual intercour......
  • State v. Cummings, Nos. 2011AP1653–CR, 2012AP520–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 24, 2014
    ...sentence modification must show the existence of a “new factor” unknown to the court at the time of sentencing. See, e.g., State v. Ninham, 2011 WI 33, ¶ 88, 333 Wis.2d 335, 797 N.W.2d 451. [850 N.W.2d 929] ¶ 71 In the absence of a new factor, a circuit court has authority to modify a sente......
  • State v. Wiedenhoeft, No. 2011AP2188.
    • United States
    • United States State Supreme Court of Wisconsin
    • April 17, 2014
    ...within “defined parameters,” and “[a] court cannot base a sentence modification on reflection and second thoughts alone.” State v. Ninham, 2011 WI 33, ¶ 88, 333 Wis.2d 335, 797 N.W.2d 451;State v. Harbor, 2011 WI 28, ¶ 35, 333 Wis.2d 53, 797 N.W.2d 828. Generally, a circuit court may modify......
  • Request a trial to view additional results

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