State v. Ramirez

Citation287 Neb. 356,842 N.W.2d 694
Decision Date07 February 2014
Docket NumberNo. S–11–486,S–11–486
PartiesState of Nebraska, Appellee, v. Eric A. Ramirez, Appellant.
CourtSupreme Court of Nebraska

OPINION TEXT STARTS HERE

Prior Version Recognized as Unconstitutional

Neb. Rev. Stat. § 28-105(1) (2008)Appeal from the District Court for Douglas County: John D. Hartigan, Jr., Judge. Convictions affirmed, all sentences vacated, and cause remanded for resentencing.

James Martin Davis, of Davis Law Office, and Mark A. Weber, of Carlson & Burnett, L.L.P., Omaha, for appellant.

Jon Bruning, Attorney General, James D. Smith, Lincoln, and Carrie A. Thober for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
Syllabus by the Court

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.

3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

4. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion.

5. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the court abused its discretion.

6. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

7. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

8. Trial: Juries: Evidence. Demonstrative exhibits are defined by the purpose for which they are offered at trial; demonstrative exhibits aid or assist the jury in understanding the evidence or issues in a case.

9. Trial: Evidence. Exhibits admitted only for demonstrative purposes do not constitute substantive evidence.

10. Trial: Evidence: Appeal and Error. On appeal, a defendant may not assert a different ground for his objection to the admission of evidence than was offered at trial.

11. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.

12. Evidence: Words and Phrases. Cumulative evidence means evidence tending to prove the same point of which other evidence has been offered.

13. Trial: Evidence: Appeal and Error. The erroneous admission of evidence is not reversible error if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding of the trier of fact.

14. Criminal Law: Statutes: 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.

15. Appeal and Error. An appellate court always reserves the right to note plain error which was not complained of at trial or on appeal.

16. Sentences: Weapons. Although it is generally within the trial court's discretion to direct that sentences imposed for separate crimes be served concurrently or consecutively, Neb.Rev.Stat. § 28–1205(3) (Reissue 2008) does not permit such discretion in sentencing, because it mandates that a sentence for the use of a deadly weapon in the commission of a felony be served consecutively to any other sentence imposed and concurrent with no other sentence.

17. Sentences: Appeal and Error. An appellate court has the power on direct appeal to remand a cause for the imposition of a lawful sentence where an erroneous one has been pronounced.

Miller–Lerman, J.

NATURE OF CASE

In this direct appeal, Eric A. Ramirez appeals from his convictions and sentences in the district court for Douglas County of two counts of first degree murder, three counts of use of a deadly weapon to commit a felony, one count of attempted second degree murder, one count of attempted robbery, and one count of criminal conspiracy. The first degree murder convictions are each Class IA felonies. Ramirez was 17 years old at the time of the murders. Ramirez assigns error to certain rulings regarding the admission and withdrawal of evidence. We find no merit to these assignments of error and affirm his convictions. Regarding the sentences imposed for his convictions, we conclude that the two life imprisonment sentences without the possibility of parole imposed for the two convictions of first degree murder, counts I and III, are unconstitutional and, accordingly, we vacate those sentences and remand the cause for resentencing consistent with Neb.Rev.Stat. § 28–105.02 (Supp.2013). We find plain error in regard to the sentences imposed for the convictions of use of a deadly weapon to commit a felony, counts II, IV, and VII, and we vacate such sentences and remand the cause for resentencing consistent with Neb.Rev.Stat. § 28–1205(3) (Cum.Supp.2012), such that each sentence imposed for the conviction of use of a deadly weapon runs consecutively to all other sentences and concurrently with no other sentence. We also find plain error in regard to the three sentences imposed for the convictions of count V, attempted second degree murder; count VI, attempted robbery; and count VIII, criminal conspiracy, because, as currently written, each of these three sentences was ordered to run concurrently with the sentences for the convictions of use of a deadly weapon, and, even after resentencing in counts II, IV, and VII, these three sentences as written would impose sentences which would run concurrently with at least two sentences for the convictions of use of a deadly weapon. We vacate the sentences for counts V, VI, and VIII and remand the cause for resentencing such that the sentences imposed do not run concurrently with the sentences for the convictions of use of a deadly weapon. Accordingly, we affirm the convictions, vacate all of the sentences, and remand the cause for resentencing consistent with this opinion.

STATEMENT OF FACTS

This case involves three shootings that occurred on the night of November 12, 2008, at three separate locations in Omaha, Nebraska, within an hour of each other. These shootings resulted in the deaths of two people and injury to a third person. Ramirez, Edgar Cervantes, and Juan E. Castaneda were later arrested for the crimes; Cervantes testified against Ramirez and Castaneda pursuant to a plea agreement.

The first shooting took place at a residence located on Dorcas Street, in Omaha, where Luis Silva was shot at approximately 10:45 p.m. outside his residence. Jose Hernandez, Silva's cousin, was living with Silva at the time, along with an aunt and another cousin. Hernandez testified that he was home at approximately 10:30 p.m. when Silva's truck, a Chevrolet Blazer, arrived and parked in the driveway. Hernandez testified that he went outside to ask Silva to come inside and that Silva told Hernandez he was going to finish a telephone call. About 2 minutes later, Hernandez heard the truck's horn honk. Hernandez testified that he looked outside and saw Silva lying on the ground near the truck and a man with a gun standing next to him. Hernandez also saw another man by a tree nearby. The man next to Silva pointed his gun at Hernandez and, speaking in Spanish, said that they only wanted money.” The other man then said, “Let's go,” in English. Through his porch window, Hernandez watched the two men leave. Hernandez testified that the man who pointed the gun at him was wearing black pants and a black, hooded sweatshirt and had a goatee and that the other man was wearing black pants and a gray sweatshirt.

Silva was shot twice. One bullet grazed the left side of his head. The other bullet entered his upper back, and continued to the left side of his chest. Silva was pronounced dead upon his arrival at an Omaha hospital.

The second shooting took place near North 50th Street and Underwood Avenue. Shortly after Silva was shot, Charles Denton and Hilary Nelsen drove to a walkup automatic teller machine (ATM). Denton got out of the van he was driving to use the ATM, while Nelsen remained in the van. Nelsen and Denton saw two people walking toward their vehicle. Nelsen testified that they were male and were wearing their hoods up. Nelsen testified that after Denton started the van, the two men started running toward the van. One of the men approached the driver's-side window and yelled at Nelsen and Denton to give him money. The man fired his gun, and Denton drove away. Denton called the 911 emergency dispatch service, but after he realized that he had been shot, he asked Nelsen to talk to the 911 operator.

Nelsen testified that she believed the men were not white but that she could not tell if they were “Hispanic” or “black.” Nelsen and Denton both testified that the gun was silver. Denton stated the men were Hispanic and that the man with the gun had facial hair. Denton testified that the shooter was wearing a lighter-colored, hooded sweatshirt; that the other man was wearing a darker-colored, hooded sweatshirt; and that both men were wearing their hoods up. Denton...

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  • State v. Ballew
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    • Nebraska Supreme Court
    • 14 Agosto 2015
    ...the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014). Whether two convictions result in multiple punishments for the same offense for double jeopardy purposes presents a ques......
  • Wilson v. Wilson
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    ...for what constitutes plain error several times in Kuhnel v. BNSF Railway Co., 287 Neb. 541, 844 N.W.2d 251 (2014) ; State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014) ; State v. Trice, 286 Neb. 183, 835 N.W.2d 667 (2013) ; United States Cold Storage v. City of La Vista, 285 Neb. 579, 831......
  • State v. Prado
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    • 12 Octubre 2021
    ...Cumulative evidence means evidence tending to prove the same point of which other evidence has been offered. State v. Ramirez , 287 Neb. 356, 842 N.W.2d 694 (2014). Generally, erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and o......
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