State v. Abdulkadir , 286 Neb. 417 ( 2013 )

Nebraska Advance Sheets
STATE v. ABDULKADIR 417
Cite as 286 Neb. 417State of Nebraska, appellee, v.
Mohamed Abdulkadir, appellant.
___ N.W.2d ___
Filed August 2, 2013. No. S-12-893.
1. Appeal and Error. An appellate court may, at its option, notice plain error.
2. Appeal and Error: Words and Phrases. In determining plain error, where
the law at the time of trial was settled and clearly contrary to the law at the
time of the appeal, it is enough that an error be “plain” at the time of appellate
consideration.
3. Trial: Photographs. The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must determine their relevancy
and weigh their probative value against their prejudicial effect.
4. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
5. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
6. Jury Instructions: Appeal and Error. Failure to object to a jury instruction
after it has been submitted to counsel for review precludes raising an objection
on appeal absent plain error indicative of a probable miscarriage of justice.
7. Homicide: Words and Phrases. A sudden quarrel is a legally recognized and
sufficient provocation that causes a reasonable person to lose normal self-control.
8. ____: ____. A sudden quarrel does not necessarily mean an exchange of angry
words or an altercation contemporaneous with an unlawful killing and does not
require a physical struggle or other combative corporal contact between the
defendant and the victim.
9. Homicide: Intent. The question when determining whether a killing was upon
a sudden quarrel is whether there existed reasonable and adequate provocation
to excite one’s passion and obscure and disturb one’s power of reasoning to
the extent that one acted rashly and from passion, without due deliberation and
reflection, rather than from judgment.
10. Homicide: Lesser-Included Offenses. Although voluntary manslaughter is a
lesser degree of homicide, it is not a lesser-included offense of second degree
murder under the elements test, because it is possible to commit second degree
murder without committing voluntary manslaughter; one who intentionally
kills another without premeditation and without the provocation of a sudden
quarrel commits second degree murder, but does not simultaneously commit
manslaughter.
11. Homicide: Lesser-Included Offenses: Jury Instructions. Where there is evi-
dence that (1) a killing occurred intentionally without premeditation and (2) the
defendant was acting under the provocation of a sudden quarrel, a jury must be
given the option of convicting of either second degree murder or voluntary man-
slaughter depending upon its resolution of the fact issue regarding provocation.
12. Homicide: Photographs. Although the probative value of gruesome photo-
graphs should be weighed against the possible prejudicial effect before they are
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418 286 NEBRASKA REPORTS
admitted, if the photographs illustrate or make clear some controverted issue in
a homicide case, proper foundation having been laid, they may be received, even
if gruesome.
13. Criminal Law: Evidence. A defendant cannot negate an exhibit’s probative
value through a tactical decision to stipulate.
14. ____: ____. The State is allowed to present a coherent picture of the facts of the
crimes charged, and it may generally choose its evidence in so doing.
15. Criminal Law: Sentences. There is no statutory requirement that the affirma-
tively stated minimum term for a Class IB felony sentence be less than the maxi-
mum term, and although Neb. Rev. Stat. § 29-2204(1)(a)(ii) (Cum. Supp. 2012)
permits a sentencing judge imposing a maximum term of life imprisonment for
a Class IB felony to impose a minimum term of years not less than the statutory
mandatory minimum, it does not require the judge to do so.
16. Homicide: Sentences. A life-to-life sentence for second degree murder is a per-
missible sentence under Neb. Rev. Stat. § 29-2204 (Cum. Supp. 2012).
17. Statutes: Judicial Construction: Legislature: Presumptions: Intent. When
judicial interpretation of a statute has not evoked a legislative amendment, it is
presumed that the Legislature has acquiesced in the court’s interpretation.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
James R. Mowbray and Kelly S. Breen, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
I. NATURE OF CASE
Mohamed Abdulkadir was found guilty of second degree
murder and use of a deadly weapon to commit a felony for
the death of Michael Grandon. The district court sentenced
Abdulkadir to a term of imprisonment of life to life for the
second degree murder conviction and to a consecutive term of
imprisonment of 15 to 25 years for the use of a deadly weapon
conviction. Abdulkadir now appeals and alleges the district
court erred in giving incorrect jury instructions, in admitting
cumulative and gruesome photographs, and in sentencing him
to a term of imprisonment of life to life.
Nebraska Advance Sheets
STATE v. ABDULKADIR 419
Cite as 286 Neb. 417II. BACKGROUND
Abdulkadir was incarcerated at the Nebraska State
Penitentiary on June 30, 2011. On that day, Abdulkadir was
working in a prison facility when he was informed by other
inmates that his prison cell had been robbed. Abdulkadir imme-
diately left work and returned to his cell.
Abdulkadir returned to find that his television, headphones,
compact disc player, various clothing items, prayer oils, and
toiletries were missing from his cell. Abdulkadir notified case-
worker Cody Eastman that his items had been stolen. Eastman
told Abdulkadir to file a report.
Instead of filing the report, Abdulkadir, accompanied by
his friends, began asking other inmates if they knew any-
thing about the theft. From his questions, Abdulkadir deter-
mined that inmate Grandon was a possible suspect. Abdulkadir
approached Grandon in the prison gymnasium and questioned
him as to his possible involvement in the theft. Grandon swore
“on his hood” that he was not involved. At trial, a prisoner
testified that Abdulkadir was nonthreatening toward Grandon
during the questioning.
After questioning Grandon, Abdulkadir briefly returned to
his cell. At that time, Abdulkadir noticed that Grandon had
also returned. Abdulkadir testified that as he was leaving his
cell, he was “sucker punche[d]” above his left eye by Grandon.
Both men engaged in a struggle, and according to Abdulkadir,
Grandon pulled a knife out of his pocket. Abdulkadir was able
to gain control of the knife as Grandon placed him in a choke
hold. Abdulkadir testified that he then stabbed Grandon mul-
tiple times in self-defense.
Corporal Henry McFarland was stationed in the “bubble,” an
observation control center down the hall from where Grandon
was stabbed. Just before the stabbing, four inmates stood shoul-
der to shoulder blocking McFarland’s view from the bubble.
McFarland had never seen inmates stand like that before and
asked them through the intercom system to move. The inmates
said they were trimming each other’s hair and slowly dispersed
after McFarland commanded them to move.
As the inmates moved away, McFarland heard someone
yelling for help. McFarland did not see a knife at that point
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420 286 NEBRASKA REPORTS
and radioed that a fight with no weapons was in progress.
McFarland looked down the hallway and saw Grandon fall to
the floor. Abdulkadir was standing over Grandon, swinging
his arm in a downward motion, and McFarland then saw the
knife. McFarland testified that as Abdulkadir was standing
over Grandon, McFarland heard Abdulkadir state, “‘You think
you can steal from me?’”
Eastman was the first to respond to the fight. When he
arrived, he caught a glimpse of the knife and radioed that
a weapon was involved and that more personnel would be
needed. Abdulkadir was making thrusting motions toward
Grandon. Eastman told Abdulkadir that it was over and to drop
the weapon. Abdulkadir complied, and Eastman detained him.
Medical attention was given to Grandon, but he later died.
After being detained, Abdulkadir was sent to segregation.
Corporal Fawn Swisher was in the control room in the seg-
regation unit. She overheard all of the inmates in segregation
asking Abdulkadir what he did to be placed in segregation.
Swisher turned on the speaker box for Abdulkadir’s cell to
gather information. Swisher overheard Abdulkadir telling the
other inmates that “somebody was stealing his shit and he
couldn’t let that happen and that he’d do it again.”
1. Autopsy Photographs
Dr. Jean Thomsen, a pathologist, performed the autopsy
on Grandon. Thomsen testified that in her opinion, the cause
of Grandon’s death was the infliction of multiple “cutting
and stab wounds to his neck, chest, posterior, abdomen, and
buttocks.” During her testimony, the State offered, over the
defense counsel’s objections, exhibits 36 through 48, 50, and
51. The exhibits are 15 photographs depicting all 25 stab
wounds to Grandon’s body.
Prior to Thomsen’s testimony, the district court held a hear-
ing on the autopsy photographs. Counsel for Abdulkadir offered
to stipulate to the content of the photographs. He argued that
publishing all 15 photographs would be cumulative and would
unnecessarily inflame the jury. The district court asked defense
counsel: “I take it [defense counsel] is still requiring the State
Nebraska Advance Sheets
STATE v. ABDULKADIR 421
Cite as 286 Neb. 417to prove a lack of self-defense, is that right?” To which defense
counsel answered in the affirmative.
The State argued that the wounds, including the wounds
to Grandon’s arms and hands, were consistent with defensive
wounds. The district court found the exhibits not cumula-
tive and found each exhibit to be relevant on the issue of
self-defense.
2. Jury Instructions
During the jury instruction conference, Abdulkadir proposed
jury instructions for first degree murder, second degree murder,
and manslaughter. The district court accepted those instruc-
tions with minor changes. Abdulkadir did not object to the final
instructions, which were as follows:
COUNT I:
MURDER IN THE FIRST DEGREE
Under Count I of the Indictment in this case, depend-
ing on the evidence, you may return one of four possible
verdicts. You may find Mohamed Abdulkadir:
1. Guilty of murder in the first degree; or
2. Guilty of murder in the second degree; or
3. Guilty of manslaughter; or
4. Not guilty
A. ELEMENTS
1. Murder in the first degree.
The elements which the State must prove by evi-
dence beyond a reasonable doubt in order to convict Mr.
Abdulkadir of murder in the first degree are:
(1) That Mr. Abdulkadir killed Michael Grandon;
(2) That Mr. Abdulkadir did so purposely;
(3) That Mr. Abdulkadir did so with deliberate and pre-
meditated malice;
(4) That Mr. Abdulkadir did not do so as the result of
a sudden quarrel;
(5) That Mr. Abdulkadir did not do so in self-defense;
(6) That Mr. Abdulkadir did so on or about June 30,
2011; and
(7) That Mr. Abdulkadir did so in Lancaster County.
....
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The State has the burden of proving beyond a reason-
able doubt each and every one of the foregoing elements,
and this burden never shifts.
2. Murder in the second degree.
The elements which the State must prove by evi-
dence beyond a reasonable doubt in order to convict Mr.
Abdulkadir of murder in the second degree are:
(1) That Mr. Abdulkadir killed Michael Grandon;
(2) That Mr. Abdulkadir did so intentionally;
(3) That Mr. Abdulkadir did not do so as the result of
a sudden quarrel;
(4) That Mr. Abdulkadir did not do so in self-defense;
(5) That Mr. Abdulkadir did so on or about June 30,
2011; and
(6) That Mr. Abdulkadir did so in Lancaster County.
The State has the burden of proving beyond a reason-
able doubt each and every one of the foregoing elements,
and this burden never shifts.
3. Manslaughter.
The elements which the State must prove by evi-
dence beyond a reasonable doubt in order to convict Mr.
Abdulkadir of manslaughter are:
(1) That Mr. Abdulkadir killed Michael Grandon;
(2) That Mr. Abdulkadir did so intentionally upon a
sudden quarrel;
(3) That Mr. Abdulkadir did not do so in self-defense;
....
(4) That Mr. Abdulkadir did so on or about June 30,
2011; and
(5) That Mr. Abdulkadir did so in Lancaster County.
The State has the burden of proving beyond a reason-
able doubt each and every one of the foregoing elements,
and this burden never shifts.
B. EFFECTS OF FINDINGS
You must separately consider in the following order
the crimes of first degree murder, second degree murder,
and manslaughter. For the crime of first degree murder,
you must decide whether the State proved each element
beyond a reasonable doubt. If the State did so prove
Nebraska Advance Sheets
STATE v. ABDULKADIR 423
Cite as 286 Neb. 417each element, then you must find Mr. Abdulkadir guilty
of murder in the first degree and proceed no further
on Count I. If you find that the State did not so prove,
then you must proceed to consider the crime of second
degree murder.
For the crime of second degree murder, you must
decide whether the State proved each element beyond a
reasonable doubt. If the State did so prove each element,
then you must find Mr. Abdulkadir guilty of murder in the
second degree and proceed no further on Count I. If you
find the State did not so prove, then you must proceed to
consider the crime of manslaughter.
For the crime of manslaughter, you must decide whether
the State proved each element beyond a reasonable doubt.
If the State did so prove each element, then you must find
Mr. Abdulkadir guilty of manslaughter. If you find the . . .
State did not so prove, then you must find Mr. Abdulkadir
not guilty of all charges under Count I.
Although your final verdict must be unanimous, during
your preliminary deliberations and discussions, you are
not required to be unanimous before considering whether
Mr. Abdulkadir is guilty of a lesser offense (i.e., second
degree murder or manslaughter.)
The jury found Abdulkadir guilty of second degree murder
and use of a deadly weapon to commit a felony. The district
court sentenced Abdulkadir to a term of imprisonment of life to
life for the second degree murder conviction and to a consecu-
tive term of imprisonment of 15 to 25 years for the use of a
deadly weapon conviction. Abdulkadir now appeals.
III. ASSIGNMENTS OF ERROR
Abdulkadir argues, restated and summarized, that the dis-
trict court erred by (1) denying a requested instruction that the
State prove beyond a reasonable doubt that Abdulkadir did not
act in a state of passion upon sudden provocation, (2) using a
second degree murder step instruction that did not require the
jury to consider the elements of both crimes with the option
for convicting Abdulkadir of manslaughter, (3) allowing the
admission of cumulative gruesome autopsy photographs, and
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424 286 NEBRASKA REPORTS
(4) sentencing Abdulkadir to “life to life,” because such sen-
tence is a determinate sentence which invades and usurps the
province of the Legislature.
IV. STANDARD OF REVIEW
[1,2] An appellate court may, at its option, notice plain
error.1 In determining plain error, where the law at the time of
trial was settled and clearly contrary to the law at the time of
the appeal, it is enough that an error be “plain” at the time of
appellate consideration.2
[3] The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must deter-
mine their relevancy and weigh their probative value against
their prejudicial effect.3
[4] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.4
[5] Sentences within statutory limits will be disturbed by an
appellate court only if the sentences complained of were an
abuse of judicial discretion.5
V. ANALYSIS
1. Jury Instructions
[6] On appeal, Abdulkadir argues that the jury instructions
were incorrect. However, Abdulkadir did not object at trial to
the jury instructions that he now assigns as error. Failure to
object to a jury instruction after it has been submitted to coun-
sel for review precludes raising an objection on appeal absent
plain error indicative of a probable miscarriage of justice.6
Therefore, we will review both of his assignments of error
concerning the jury instructions for plain error.
1
See State v. Nadeem, 284 Neb 513, 822 N.W.2d 372 (2012).
2
State v. Smith, 284 Neb. 636, 822 N.W.2d 401 (2012).
3
State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
4
State v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).
5
Id.
6
State v. Watt, 285 Neb. 647, ___ N.W.2d ___ (2013).
Nebraska Advance Sheets
STATE v. ABDULKADIR 425
Cite as 286 Neb. 417(a) Sudden Quarrel Versus “Heat of
Passion on Sudden Provocation”
Abdulkadir argues that under Mullaney v. Wilbur,7 the Due
Process Clause of the U.S. Constitution requires that the pros-
ecution prove beyond a reasonable doubt the absence of the
“‘heat of passion on sudden provocation’” when the issue is
properly presented in a homicide case.8 He argues that the exact
language “heat of passion on sudden provocation” is required
and the use of only “sudden quarrel” in the jury instructions
constituted plain error.9 We disagree.
In Mullaney, the U.S. Supreme Court was addressing a
Maine statute that required the defendant to prove that he
acted in the heat of passion on sudden provocation, in order
to reduce a charge from second degree murder to manslaugh-
ter.10 The Court held that placing the burden of proof with the
defend­ nt violated his due process rights.11
a
Contrary to Abdulkadir’s argument, the Court did not rule
that states are required to use the language “heat of passion
on sudden provocation” when distinguishing between second
degree murder and manslaughter. Rather, the Court applied tra-
ditional notions of due process to the specific language adopted
by the Maine Legislature.
The Nebraska Legislature, like the Maine Legislature, has
also prescribed by statute a manslaughter offense. Neb. Rev.
Stat. § 28-305 (Reissue 2008) states that “[a] person commits
manslaughter if he kills another without malice, either upon a
sudden quarrel, or causes the death of another unintentionally
while in the commission of an unlawful act.”
[7-9] In State v. Smith (Smith I),12 we defined a sudden
quarrel as a legally recognized and sufficient provocation
7
Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508(1975).
8
Brief for appellant at 12.
9
Id. at 14.
10
Mullaney v. Wilbur, supra note 7.
11
Id.
12
State v. Smith, 282 Neb 720, 806 N.W.2d 383 (2011).
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426 286 NEBRASKA REPORTS
that causes a reasonable person to lose normal self-control.
We explained that it does not necessarily mean an exchange
of angry words or an altercation contemporaneous with an
unlawful killing and does not require a physical struggle or
other combative corporal contact between the defendant and
the victim.13 The question, we said, is whether there existed
reasonable and adequate provocation to excite one’s passion
and obscure and disturb one’s power of reasoning to the extent
that one acted rashly and from passion, without due delibera-
tion and reflection, rather than from judgment.14 We note that
the district court included the following proposition of law
in the jury instructions: “It is not the provocation alone that
reduces the grade of the crime, but, rather, the sudden happen-
ing or occurrence of the provocation so as to render the mind
incapable of reflection and obscure the reason so that the ele-
ments necessary to constitute murder are absent.” (Emphasis
supplied.) In our recent decision in State v. Trice,15 we held
that such an instruction was in error, because malice is not
a statutory element of second degree murder in Nebraska.
However, as we held in Trice, the inclusion of that instruction
does not constitute a prejudicial error, but nonetheless it should
be avoided.
We find that the district court gave the correct instruction
on “sudden quarrel,” which is the terminology adopted by
the Nebraska Legislature. The U.S. Supreme Court’s deci-
sion in Mullaney does not require the use of “heat of passion
on sudden provocation.” Furthermore, we find that “sudden
quarrel,” as defined by our case law, is for all intents and pur-
poses equivalent. Therefore, we do not find that the district
court’s instruction on “sudden quarrel” resulted in a miscar-
riage of justice.
(b) Step Instruction
Abdulkadir next argues that the step instruction given
to the jury did not allow the jury to consider the crime
13
Id.
14
See id.
15
State v. Trice, ante p. 183, ___ N.W.2d ___ (2013).
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STATE v. ABDULKADIR 427
Cite as 286 Neb. 417of manslaughter while deliberating the elements of second
degree murder. Because the second degree murder instruc-
tion required the State to disprove beyond a reasonable doubt
that Abdulkadir killed Grandon during a sudden quarrel,
we disagree.
Our decision is guided by State v. Smith (Smith II),16 a case
we received on petition for further review from the Nebraska
Court of Appeals. In Smith II, the district court instructed the
jury to convict the defendant of second degree murder if the
State proved beyond a reasonable doubt that the defendant had
killed intentionally, but without premeditation. The court fur-
ther instructed the jury that only if the State failed to prove one
of those elements could the jury go on to consider whether the
defendant had committed manslaughter.17
[10,11] We held that although voluntary manslaughter is a
lesser degree of homicide, it is not a lesser-included offense
of second degree murder under the elements test, because it
is possible to commit second degree murder without com-
mitting voluntary manslaughter; one who intentionally kills
another without premeditation and without the provocation
of a sudden quarrel commits second degree murder, but does
not simultaneously commit manslaughter.18 Therefore, we held
where there is evidence that (1) a killing occurred intentionally
without premeditation and (2) the defendant was acting under
the provocation of a sudden quarrel, a jury must be given the
option of convicting of either second degree murder or vol-
untary manslaughter depending upon its resolution of the fact
issue regarding provocation.19 We found evidence of both ele-
ments and affirmed the Court of Appeals’ decision to remand
the cause for a new trial.20
Here, the jury instructions allowed the jury to resolve
the fact issue regarding “upon a sudden quarrel” within the
16
State v. Smith, supra note 2.
17
Id.
18
Id.
19
Id.
20
Id.
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second degree murder instruction. By forcing the jury to
decide whether a sudden quarrel existed in the second degree
murder instruction, the instruction satisfied the requirements
set out in Smith II. By convicting Abdulkadir of second degree
murder, the jury necessarily found that Abdulkadir did not kill
Grandon upon a sudden quarrel. Therefore, the district court
did not err with its step instruction.
2. Autopsy Photographs
Abdulkadir argues that the admission and publication to the
jury of the 15 autopsy photographs were cumulative and were
outweighed by their prejudice to Abdulkadir. We disagree and
find that each photograph was probative for the jury’s deter-
mination of whether Abdulkadir was acting in self-defense and
whether he killed as a result of a sudden quarrel.
[12-14] We review the district court’s decision to admit
the autopsy photographs for abuse of discretion. Although the
probative value of gruesome photographs should be weighed
against the possible prejudicial effect before they are admitted,
if the photographs illustrate or make clear some controverted
issue in a homicide case, proper foundation having been laid,
they may be received, even if gruesome.21 A defendant cannot
negate an exhibit’s probative value through a tactical decision
to stipulate.22 The State is allowed to present a coherent picture
of the facts of the crimes charged, and it may generally choose
its evidence in so doing.23
Here, the autopsy photographs of Grandon were admitted to
show the extent of the wounds and the manner in which they
resulted in his death. According to Thomsen, the wounds were
consistent with defensive wounds, indicating that Grandon
was trying to defend himself from Abdulkadir. Furthermore,
many of the wounds indicated that Abdulkadir was striking
downward on Grandon, indicating a superior position in the
fight. The photographs were not inordinately gruesome, nor did
21
See State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated
on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2006).
22
State v. Freemont, supra note 3.
23
Id.
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STATE v. ABDULKADIR 429
Cite as 286 Neb. 417their potential prejudice substantially outweigh their probative
value in detailing the nature and cause of Grandon’s injuries.
Therefore, the district court did not abuse its discretion in
allowing the autopsy photographs into evidence.
3. Life to Life—Determinate Sentence
Lastly, Abdulkadir argues that the district court erred in
imposing a sentence of “life to life” for second degree murder.
He asserts that such sentence is in all practicality a determi-
nate sentence which invades and usurps the province of the
Legislature in defining criminal liability and the classification
of punishment. We disagree. We have held that life to life is
not an illegal punishment, and the Legislature has acquiesced
in our reading.
Under Neb. Rev. Stat. § 29-2204(1)(a)(ii)(A) (Cum. Supp.
2012), a court imposing an indeterminate sentence upon an
offender shall:
Beginning July 1, 1998:
. . . Fix the minimum and maximum limits of the sen-
tence to be served within the limits provided by law for
any class of felony other than a Class IV felony, except
that when a maximum limit of life is imposed by the
court for a Class IB felony, the minimum limit may be
any term of years not less than the statutory mandatory
minimum. If the criminal offense is a Class IV felony, the
court shall fix the minimum and maximum limits of the
sentence, but the minimum limit fixed by the court shall
not be less than the minimum provided by law nor more
than one-third of the maximum term and the maximum
limit shall not be greater than the maximum provided
by law[.]
[15,16] In State v. Marrs,24 we rejected the argument
now advanced by Abdulkadir that life-to-life imprisonment
was not an authorized sentence intended by the Legislature.
We concluded that there was no statutory requirement that
the affirm­tively stated minimum term for a Class IB fel-
a
ony sentence be less than the maximum term, and although
24
State v. Marrs, supra note 4.
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§ 29-2204(1)(a)(ii) permits a sentencing judge imposing a
maximum term of life imprisonment for a Class IB felony to
impose a minimum term of years not less than the statutory
mandatory minimum, it does not require the judge to do so.25
We held that a life-to-life sentence for second degree murder
was a permissible sentence under § 29-2204.26 We reaffirmed
that decision in State v. Moore.27
[17] Abdulkadir argues that our reading of § 29-2204
usurps the province of the Legislature. It is true that once
the Legislature has defined the crime and the corresponding
punishment for a violation of the crime, the responsibility
of the judicial branch is to apply those punishments accord-
ing to the nature and range established by the Legislature.28
However, in 2006, we interpreted the Legislature’s statute
to allow life-to-life sentences for second degree murder, and
the Legislature has not altered the sentencing structure for
Class IB felonies since our decision in Marrs.29 When judicial
interpretation of a statute has not evoked a legislative amend-
ment, it is presumed that the Legislature has acquiesced in the
court’s interpretation.30
We find that the life-to-life sentence is not illegal under the
statutes as written and that the Legislature has acquiesced to
our interpretation of its statute. Therefore, we find that the dis-
trict court’s sentence did not usurp the legislative authority to
define crimes and classify punishment.
VI. CONCLUSION
For the foregoing reasons, we affirm Abdulkadir’s convic-
tions and sentences.
Affirmed.
25
Id.
26
Id.
27
State v. Moore, 277 Neb. 111, 759 N.W.2d 698 (2009).
28
State v. Divis, 256 Neb. 328, 589 N.W.2d 537 (1999).
29
State v. Marrs, supra note 4.
30
State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013).