State v. Cardeilhac

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/01/2016 09:05 AM CDT
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. CARDEILHAC
Cite as 293 Neb. 200
State of Nebraska, appellee, v.
Dylan Cardeilhac, appellant.
___ N.W.2d ___
Filed April 1, 2016. No. S-15-217.
1. Jury Instructions. Whether the jury instructions given by a trial court
are correct is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the conclusion
reached by the lower court.
3. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal 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 deter-
mination will not be disturbed.
4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
5. Criminal Law: Jury Misconduct: Proof. A criminal defendant claim-
ing jury misconduct bears the burden of proving, by a preponderance
of the evidence, (1) the existence of jury misconduct and (2) that such
misconduct was prejudicial to the extent that the defendant was denied a
fair trial.
6. Witnesses: Juror Misconduct: Proof. An appellate court reviews the
trial court’s determinations of witness credibility and historical fact for
clear error and reviews de novo the trial court’s ultimate determination
whether the defendant was prejudiced by juror misconduct.
7. Jury Misconduct: Trial: Appeal and Error. When an allegation of
jury misconduct is made and is supported by a showing which tends to
prove that serious misconduct occurred, the trial court should conduct an
evidentiary hearing to determine whether the alleged misconduct actu-
ally occurred. If it occurred, the trial court must then determine whether
it was prejudicial to the extent that the defendant was denied a fair trial.
If the trial court determines that the misconduct did not occur or that it
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was not prejudicial, adequate findings are to be made so that the deter-
mination may be reviewed.
8. Jury Misconduct: Rules of Evidence. The duty to hold an evidentiary
hearing with regard to allegations of jury misconduct does not extend to
matters which are barred from inquiry under Neb. Evid. R. 606(2), Neb.
Rev. Stat. § 27-606(2) (Reissue 2008).
9. Homicide: Sentences: Minors. A juvenile convicted of a homicide
offense cannot be sentenced to life in prison without parole absent
consideration of the juvenile’s special circumstances in light of the prin-
ciples and purposes of juvenile sentencing.
10. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the amount of violence
involved in the commission of the crime.
Appeal from the District Court for Scotts Bluff County:
Travis P. O’Gorman, Judge. Affirmed.
James R. Mowbray and Todd W. Lancaster, of Nebraska
Commission on Public Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, and
Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Dylan Cardeilhac was convicted by a jury of second degree
murder in the district court for Scotts Bluff County. The court
sentenced Cardeilhac, who was 15 years old at the time of
the murder, to imprisonment for 60 years to life. Cardeilhac
appeals his conviction and sentence. He claims that the court
improperly instructed the jury that it would be required to
deliberate until 9 p.m. before it could break for the day, that
juror misconduct requires a new trial, and that his sentence
should be vacated because the sentencing process failed to
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comply with proper juvenile sentencing principles. We affirm
Cardeilhac’s conviction and sentence.
STATEMENT OF FACTS
In February 2014, when he was 15 years old, Cardeilhac
was being detained in the juvenile section of the Scotts Bluff
County Detention Center (SBCDC) awaiting trial on charges
which included one count of robbery. At around 2 a.m. on
February 14, Amanda Baker, a correctional officer employed
at SBCDC, was performing a bed check in the juvenile males
section of the facility. Videos from SBCDC show that Baker
entered Cardeilhac’s cell and that she leaned forward to look
at something on the floor to which Cardeilhac was pointing.
Baker got down on her hands and knees and took a closer look.
As Baker rose to one knee and attempted to stand, Cardeilhac
moved behind her and put his arms around her neck and
face. The two fell to the ground, with Baker face down and
Cardeilhac on her back. Cardeilhac kept his arms wrapped
around Baker’s neck and released his arms only after Baker
stopped struggling. Cardeilhac then searched Baker’s person
and retrieved keys. He left his cell and was later found in
another cell. Minutes after Cardeilhac left his cell, another cor-
rectional officer found Baker lying on the cell floor. Despite the
efforts of other correctional offices and emergency responders
to revive her, Baker died. An autopsy showed that Baker died
of asphyxia due to manual strangulation.
Evidence at trial indicated that prior to February 14, 2014,
Cardeilhac and other detainees in the juvenile section of
SBCDC had discussed plans to escape from the facility. The
plans included, inter alia, “choking out” a guard in order to
get keys. Cardeilhac indicated during such discussions that he
would be willing to choke a guard. Other evidence indicated
that another juvenile detainee pressured Cardeilhac to take part
in an escape. After Cardeilhac choked Baker and left his cell,
he went to other juveniles’ cells, but they declined to escape
with him. He eventually went to another cell, where he was
found by guards.
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Cite as 293 Neb. 200
The State charged Cardeilhac with first degree murder. At
trial, the jury was given the option of convicting Cardeilhac
of first degree murder, second degree murder, or unintentional
manslaughter. The evidence at trial included testimony by
various witnesses. Videos from SBCDC depicting the events
in Cardeilhac’s cell on February 14, 2014, were received into
evidence and played for the jury.
At the jury instruction conference, Cardeilhac objected to
an instruction in which the court was to advise the jury regard-
ing its deliberations. Cardeilhac objected to the portion of the
instruction that stated, “If you do not agree on a verdict by
9:00 o’clock p.m., you may separate and return for further
deliberations at 8:30 o’clock a.m. tomorrow.” Cardeilhac’s
counsel argued that requiring the jury to deliberate until 9
p.m., rather than 5 p.m., put undue pressure on the jurors and
would “force them into a decision because they are told they
have to be here until nine o’clock, which is not typical busi-
ness hours.” The court stated that its practice was to give the
jury the option of staying until 9 p.m., but that “if the jur[ors]
tell[] me at 4:30 they have had a long day and they would
like to separate, I have no problem with that either.” The
court overruled Cardeilhac’s objection and gave the instruction
as written.
After closing arguments, the case was submitted to the jury
at 11:03 a.m. At approximately 7:30 p.m. that same day, the
jury returned to the courtroom and delivered its verdict finding
Cardeilhac guilty of second degree murder.
Cardeilhac thereafter filed a motion for a new trial. At the
hearing on the motion, Cardeilhac contended that a new trial
was required because of juror misconduct. In support of his
allegations, Cardeilhac offered the affidavit of one of the jurors
into evidence. In the affidavit, the juror stated, inter alia, that
after approximately 6 hours of deliberation, she was the sole
juror who wanted to convict Cardeilhac of manslaughter rather
than second degree murder. She stated that some other jurors
made statements trying to persuade her to change her vote and
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that two of the jurors were “extremely belittling and belliger-
ent” to her. The juror stated the following:
One female juror asked if she could show [A]ffiant what
it would be like to [be] choked. Affiant agreed to this.
While Affiant was sitting in a chair, the juror came up
behind her and started to demonstrate on Affiant what it
was like to be chocked [sic] from behind. The juror had
her arm in front of [A]ffiant’s throat and was blocking
her air passage, but that choking did not cause her to
panic. It was when the juror then pushed her chest against
the back of Affiant’s head, pushing it forward causing
the pressure on the neck to increase that Affiant began
to panic.
The juror stated that soon after this demonstration, she changed
her vote from manslaughter to second degree murder; the juror
stated, however, that she did not feel pressured to change her
vote. The juror also stated that she did not believe that what
she called the “re-enactment of the choking performed on her”
accurately conformed to the evidence presented in court, which
evidence included the video that showed Cardeilhac chok-
ing Baker.
The State objected to receipt of the affidavit into evidence
on the basis of Neb. Evid. R. 606, Neb. Rev. Stat. § 27-606
(Reissue 2008), which generally precludes a juror from testi-
fying as to matters or statements occurring during the course
of the jury’s deliberations. Section 27-606, however, allows a
juror to “testify on the question whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear
upon any juror.”
The district court ruled that most of the juror’s affidavit
was not admissible under § 27-606. The court stated that the
only portions of the affidavit that were possibly admissible
were those wherein the juror described the “re-enactment” of
the choking and where she later stated that she did not think
the “re-enactment” accurately conformed to the evidence. The
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court concluded, however, that even those portions of the affi-
davit did not show by a preponderance of the evidence that
extraneous prejudicial information had been considered by the
jury. The court stated that the “re-enactment” was “not infor-
mation that originated outside of the jury room or the record”
and that instead it was “simply a critical examination of the
evidence and nothing extraneous.” The court stated that an evi-
dentiary hearing was not necessary and overruled the motion
for a new trial.
A sentencing hearing was conducted at which considerable
evidence was received. Cardeilhac presented live testimony by
two witnesses. The first witness was the mother of a friend of
Cardeilhac; she testified regarding Cardeilhac’s character and
problems that he had had at home. The second witness was
Dr. Kayla Pope, who was certified in child and adolescent
psychiatry. Dr. Pope testified generally regarding differences
in brain development and brain functioning between adults and
adolescents and, as a result of her examination of Cardeilhac’s
treatment records and interviews, testified specifically regard-
ing Cardeilhac’s development and behavior.
Dr. Pope had talked with Cardeilhac, his mother, and his
friend’s mother, and so she testified regarding Cardeilhac’s
particular circumstances. Dr. Pope testified, inter alia, that
Cardeilhac had “become much more emotionally reactive”
after his parents divorced when he was 7 or 8 years old and
that he suffered further trauma when he was placed into foster
care after a finding of abuse and neglect. Dr. Pope opined that
at the time he choked Baker, Cardeilhac was “only thinking
in the moment” and “reacting to this impulsive need to get
out of detention,” and that he was “not thinking like a mature
adult as to the consequences and whether this was a realistic
plan.” She also opined that because of his particular cir-
cumstances, Cardeilhac was “more susceptible to peer pres-
sure than a normally developing adolescent,” and that “there
was a lot going on with other peers in the detention center
and . . . he was affected by that.” Dr. Pope speculated that
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STATE v. CARDEILHAC
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Cardeilhac’s behavior and maturity would have developed by
the time he reached age 25 or 30, but she acknowledged that
she was not a forensic psychiatrist and that she did not do
risk assessments.
After the parties presented their arguments at sentencing,
and before it imposed sentence, the court stated, inter alia:
In arriving at your sentence I have considered your
age, your mentality, your education, your experience,
your social and cultural background, your past criminal
record, the motivation for your offense, and the amount
of violence involved. I have also considered the testimony
that I heard this afternoon as well.
In addition to the live testimony presented by Cardeilhac at
the sentencing hearing, the court considered other evidence,
including the presentence investigation report. The court set
forth the reasoning behind its sentencing decision and stated
that the crime for which Cardeilhac was convicted was “just
a senseless act of violence” that resulted in a child losing a
mother, parents losing a child, and a community losing one of
its members. The court stated that in reviewing the record, it
could not find an indication of remorse on Cardeilhac’s part.
Instead, the court stated the record showed that Cardeilhac’s
behavior in jail had been “rude, offensive, [and] noncompliant”
and that Cardeilhac was “somebody who is very dangerous at
this point in time and somebody that society needs protection
from.” The court acknowledged that the case was “also tragic
. . . from [Cardeilhac’s] standpoint,” because his life had “gone
very wrong very early.”
The court sentenced Cardeilhac to imprisonment for not
less than 60 years and not more than life. The court indicated
that by virtue of the sentence imposed, Cardeilhac would “be
eligible for parole at some point in time.” The court ordered
the sentence to be served consecutively to a sentence that
Cardeilhac was serving for a separate robbery crime.
Cardeilhac appeals his conviction and sentence.
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STATE v. CARDEILHAC
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ASSIGNMENTS OF ERROR
Cardeilhac claims, restated and reordered, that the dis-
trict court erred when it instructed the jury that it would be
required to deliberate until 9 p.m. before it could break for
the night and when it overruled his motion for a new trial
based on alleged juror misconduct. He also claims that the
court imposed an excessive sentence, because the sentence did
not comply with constitutional requirements for sentencing
a juvenile.
STANDARDS OF REVIEW
[1,2] Whether the jury instructions given by a trial court are
correct is a question of law. State v. Armagost, 291 Neb. 117,
864 N.W.2d 417 (2015). When reviewing questions of law, an
appellate court resolves the questions independently of the con-
clusion reached by the lower court. Id.
[3] 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. State v. Ballew, 291 Neb. 577, 867 N.W.2d
571 (2015).
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Casares, 291 Neb. 150, 864 N.W.2d
667 (2015).
ANALYSIS
Court Did Not Err When It Instructed Jury That It
Would Be Required to Deliberate Until 9 p.m.
Cardeilhac claims that the district court erred when it
instructed the jury that it would be required to deliberate until
9 p.m. before it could break for the night. Cardeilhac argues
that forcing the jurors to stay beyond normal business hours
coerced them to come to a decision sooner than they might
have had they been able to break at 5 p.m. and resume delib-
erations the next morning. We conclude that the instruction was
not coercive and that the court did not err in giving it.
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Cardeilhac cites to cases such as State v. Garza, 185 Neb.
445, 176 N.W.2d 664 (1970), and State v. Floyd, 272 Neb. 898,
725 N.W.2d 817 (2007), disapproved on other grounds, State
v. McCulloch, 274 Neb. 636, 742 N.W.2d 727, in which dead-
locked juries were directed to continue deliberating in ways
that this court concluded unfairly prejudiced the defendant. In
Garza, after over 15 hours of deliberation, the jury reported
that it was deadlocked at 11 to 1; the trial court instructed the
jury to continue deliberations. The trial court stated that the
case should be disposed of by the jury and that the trial court
could not be convinced there was no possibility the jury could
not reach agreement. In Garza, we concluded that the trial
court’s admonition had the purpose of peremptorily directing
an agreement and had “prevented the defendant from having
his fate determined by an impartial and uncoerced jury.” 185
Neb. at 449, 176 N.W.2d at 667.
In Floyd, a bailiff told the lone dissenting member of a jury
that had been instructed by the court to continue deliberations
that the court would “‘“keep sending the jury back until you
reach a unanimous decision.”’” 272 Neb. at 905, 725 N.W.2d
at 826. This court concluded that the bailiff’s statement “could
have pressured the average juror to change his or her vote
in order to avoid protracted deliberations.” Id. at 911, 725
N.W.2d at 830.
Cardeilhac contends that the court’s instruction in this
case had an effect similar to Garza, supra, because jurors
knew that they would be required to stay until 9 p.m. if they
had not reached a verdict sooner. We believe that Cardeilhac
overstates the effect of this instruction. The instruction in the
present case is significantly different from those in the cases
relied upon by Cardeilhac both as to timing and content. The
instruction was as follows: “If you do not agree on a verdict
by 9:00 o’clock p.m., you may separate and return for further
deliberations at 8:30 o’clock a.m. tomorrow.” The instruc-
tion was given before the jury started deliberations as part of
the instructions the court would routinely give to inform the
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jury of how deliberations would proceed. Although the record
indicates that at one point in the deliberations there was a
juror who had not come to agreement with the other jurors,
there is no indication that the jury ever reported to the court
that it was deadlocked or that the court gave the instruction at
issue as part of an admonition for the jury to continue delib-
erations. Considering the context in which it was given, it is
unlikely that jurors would have taken the instruction as being
coercive or as pressuring them to reach an agreement in order
to avoid protracted deliberations.
Cardeilhac notes that in response to his objection to the
instruction, the court stated that it would consider allowing the
jury to break sooner if the jury so requested. He takes issue
with the fact that the court did not revise the instruction and
explicitly instruct the jury that the court would be willing to
consider such a request. However, as the State notes, the court
concluded the instruction regarding jury deliberations by set-
ting forth the procedure by which the jury could submit written
questions to the court through the bailiff. Therefore, had the
jury wished to break from deliberations at an earlier hour, it
was made aware that it had the ability to make such a request,
but it did not do so.
The record shows that deliberations commenced at approx-
imately 11 a.m. and that the jury returned its verdict at
approximately 7:30 p.m. the same day. There is no indication
that the jury expressed a desire to break at an earlier hour or
any indication that it was pressured to reach agreement when
it did.
We find no error in the district court’s instruction, and we
reject this assignment of error.
Court Did Not Abuse Its Discretion When It
Overruled Motion for New Trial in Which
Cardeilhac Alleged Juror Misconduct.
Cardeilhac claims that the district court erred when it over-
ruled his motion for a new trial in which he claimed juror
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misconduct. We determine that no juror misconduct was
shown, and we therefore conclude that the district court did not
abuse its discretion when it overruled Cardelihac’s motion for
a new trial.
Cardeilhac asserts that he should have been granted a new
trial because jurors participated in a reenactment of the chok-
ing of Baker, which reenactment was not consistent with the
evidence presented at trial. He contends that the reenactment
violated the prohibition against bringing extraneous prejudi-
cial material to the jury’s attention and therefore constituted
jury misconduct. The district court concluded, however, that
Cardeilhac did not show by a preponderance of the evidence
that extraneous prejudicial information had been considered
by the jury, because the reenactment was “not information that
originated outside of the jury room or the record” and instead
it was “simply a critical examination of the evidence and noth-
ing extraneous.”
[5,6] A criminal defendant claiming jury misconduct bears
the burden of proving, by a preponderance of the evidence,
(1) the existence of jury misconduct and (2) that such mis-
conduct was prejudicial to the extent that the defendant was
denied a fair trial. State v. Stricklin, 290 Neb. 542, 861 N.W.2d
367 (2015). We review the trial court’s determinations of wit-
ness credibility and historical fact for clear error and review
de novo the trial court’s ultimate determination whether the
defend­ant was prejudiced by juror misconduct. Id.
[7] We have held that when an allegation of jury misconduct
is made and is supported by a showing which tends to prove
that serious misconduct occurred, the trial court should conduct
an evidentiary hearing to determine whether the alleged mis-
conduct actually occurred. If it occurred, the trial court must
then determine whether it was prejudicial to the extent that the
defendant was denied a fair trial. Stricklin, supra. If the trial
court determines that the misconduct did not occur or that it
was not prejudicial, adequate findings are to be made so that
the determination may be reviewed. Id. Consistent with the
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foregoing, in the present case, the district court determined that
Cardeilhac had not made a showing that tended to prove that
serious misconduct had occurred, and therefore the court did
not hold an evidentiary hearing.
[8] Referring to the rules of evidence, we have further held
that the duty to hold an evidentiary hearing with regard to alle-
gations of jury misconduct does not extend to matters which
are barred from inquiry under § 27-606(2). Stricklin, supra.
Section 27-606(2) provides:
Upon an inquiry into the validity of a verdict or indict-
ment, a juror may not testify as to any matter or statement
occurring during the course of the jury’s deliberations or
to the effect of anything upon his or any other juror’s
mind or emotions as influencing him to assent to or dis-
sent from the verdict or indictment or concerning his
mental processes in connection therewith, except that a
juror may testify on the question whether extraneous prej-
udicial information was improperly brought to the jury’s
attention or whether any outside influence was improperly
brought to bear upon any juror. Nor may his affidavit or
evidence of any statement by him indicating an effect of
this kind be received for these purposes.
In the present case, Cardeilac offered the affidavit of a
juror regarding, inter alia, the “re-enactment of the choking
performed on her.” The district court in this case properly
refused to consider much of the juror’s affidavit, because it
was not admissible under § 27-606. The court considered only
the portions of the affidavit that were possibly admissible as
indicating that extraneous prejudicial information may have
been improperly brought to the jury’s attention. The portions
of the affidavit considered by the court were those regard-
ing the alleged reenactment of the choking, which Cardeilhac
contends show that the jury considered extraneous prejudicial
information, and a later portion regarding the juror’s statement
to the effect that she did not think the reenactment accurately
conformed to the evidence.
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We have said that the key phrase in § 27-606(2) is “extra-
neous prejudicial information” and that within this phrase,
the crucial word is “extraneous,” which means “‘“existing or
originating outside or beyond: external in origin: coming from
the outside . . . brought in, introduced, or added from an exter-
nal source or point of origin.”’” State v. Thomas, 262 Neb.
985, 999, 637 N.W.2d 632, 650 (2002). In Thomas, we stated
that when “[n]one of the jurors brought extraneous information
to the jury or obtained extra information about the facts of the
case,” then extraneous prejudicial information was not brought
to the jury’s attention and we further noted that information
provided by a member of the jury from his or her direct knowl-
edge was not considered as coming from an external source.
Id. at 1000, 637 N.W.2d at 650.
Reenactments or other exercises by which the jury tests the
evidence presented at trial are generally considered appropri-
ate jury conduct. It has been said:
It is not expected that jurors should leave their common
sense and cognitive functions at the door before enter-
ing the jury room. Nor is it expected that jurors should
not apply their own knowledge, experience, and percep-
tions acquired in the everyday affairs of life to reach a
verdict. . . .
....
Reenactments in the jury room based on the jury’s
recollection of the testimony are usually allowed as an
application of the jury’s common sense and deductive
reasoning to determine the truth of the facts in dispute.
Bennett L. Gershman, Contaminating the Verdict: The Problem
of Juror Misconduct, 50 S.D. L. Rev. 322, 331, 333 (2005).
Cases from other jurisdictions are in accord. For example,
in State v. Balisok, 123 Wash. 2d 114, 866 P.2d 631 (1994),
jurors attempted to reenact a struggle between the defendant
and the victim in order to test whether it could have happened
in the manner described by the defendant, who claimed self-
defense. The Supreme Court of Washington determined in
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Balisok that the jurors’ reenactment did not constitute extrinsic
evidence, because it did not involve evidence outside of, or
extrinsic to, the evidence that was presented at trial, and that
the reenactment was “nothing more than a critical examina-
tion of [the defendant’s] self-defense theory.” 123 Wash. 2d at
120, 866 P.2d at 634. See, also, State v. Pease, 163 P.3d 985,
989 (Alaska App. 2007) (“[c]ourts have repeatedly upheld
jurors’ efforts to test the credibility or plausibility of trial tes-
timony by . . . re-enacting the events or conditions described
by witnesses”).
We agree with the district court’s determination that the
reenactment in this case did not constitute extraneous preju-
dicial information. The choking demonstration in this case
was part of the jury’s critical examination of an aspect of the
evidence. The juror stated in her affidavit that the other juror
“asked if she could show affiant what it would be like to [be]
choked” and that after the affiant-juror consented, the other
juror demonstrated a choking from behind on the affiant-juror,
because the evidence in the case was to the effect that Baker
was choked from behind. The other juror did not bring any
extraneous information to the jury, and it was not extra infor-
mation about the facts of the case. There is no indication that
the reenactment was seen by jurors as providing or generating
new information directly related to the facts of this case; in
fact, the affiant-juror stated that she did not think the reen-
actment was consistent with the evidence of how Baker was
choked. Therefore, the reenactment was merely an exercise
engaged in to critically examine the evidence.
We conclude that Cardeilhac did not show the existence
of juror misconduct and that therefore, the district court did
not err when it decided not to hold an evidentiary hearing.
Because Cardeilhac did not show juror misconduct, the district
court did not abuse its discretion when it overruled his motion
for a new trial. We reject this assignment of error.
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Court Did Not Impose an Excessive Sentence.
[9] Cardeilhac claims generally that the sentence of impris-
onment for 60 years to life imposed by the district court was
excessive. In contending that his sentence was excessive,
Cardeilhac, who was 15 years old at the time of his crime,
specifically claims that the sentencing process failed to com-
ply with constitutional requirements for sentencing juveniles
set forth in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012), and that this court should therefore
vacate his sentence. “In Miller v. Alabama, [supra], the Court
held that a juvenile convicted of a homicide offense could not
be sentenced to life in prison without parole absent consid-
eration of the juvenile’s special circumstances in light of the
principles and purposes of juvenile sentencing.” Montgomery
v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 725, 193 L. Ed.
2d 599 (2016). Although Cardeilhac acknowledges that he
was not sentenced to life in prison without the possibility
of parole, he nevertheless urges us to adopt and apply the
sentencing process announced in Miller to lengthy term-of-
years sentences imposed on juveniles. For several reasons,
including the fact that Cardeilhac had the full benefit of the
individualized sentence decisionmaking prescribed by Miller,
it is unnecessary for us to decide the extent of the cases to
which the Miller sentencing principles apply and we affirm
Cardeilhac’s sentence.
Cardeilhac was convicted of second degree murder, which is
a Class IB felony under Neb. Rev. Stat. § 28-304(2) (Reissue
2008). The penalty for a Class IB felony is imprisonment for
a minimum of 20 years and a maximum of life. Neb. Rev.
Stat. § 28-105(1) (Cum. Supp. 2014). Cardeilhac’s sentence
of imprisonment for 60 years to life is therefore within statu-
tory limits.
[10] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as
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any applicable legal principles in determining the sentence
to be imposed. State v. Casares, 291 Neb. 150, 864 N.W.2d
667 (2015). With regard to the relevant factors that must cus-
tomarily be considered and applied, we have stated that when
imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense, and
(8) the amount of violence involved in the commission of the
crime. Id.
We note in this case that the court in fact considered each
of these factors and so stated at the sentencing hearing. The
court further set forth its reasoning for the sentence it imposed.
The court emphasized the senselessness of the act of violence,
the effect it had on others, and the perceived lack of remorse
on Cardeilhac’s part. The court noted that Cardeilhac was
shown to be dangerous and that society needed to be protected
from such dangerousness. The court also indicated that it had
considered the mitigating factors presented by Cardeilhac’s
evidence related to his status as a person under age 18, includ-
ing the evidence that Cardeilhac’s life had “gone very wrong
very early.”
Having reviewed the record and the evidence considered
by the court at sentencing, we cannot say that the sentence
imposed was an abuse of discretion under the standards set
forth above. However, Cardeilhac contends that because he
was a juvenile, additional legal principles are applicable in
this case, and that such additional principles are constitu-
tional in nature as set forth by the U.S. Supreme Court in
Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed.
2d 407 (2012). Thus, Cardeilhac contends we should vacate
his sentence and remand his cause for a hearing consistent
with Miller.
In Miller, supra, the Court held that mandatory sentences
of life imprisonment without parole for those under age 18
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at the time they committed homicides violates the Eighth
Amendment’s prohibition on cruel and unusual punishment.
As we recognized in State v. Mantich, 287 Neb. 320, 339-40,
842 N.W.2d 716, 730 (2014), Miller did not “categorically
bar” the imposition of a sentence of life imprisonment without
parole but instead “held that a sentencer must consider spe-
cific, individualized factors before handing down a sentence
of life imprisonment without parole for a juvenile.” The U.S.
Supreme Court stated in Miller that “we do not foreclose a
sentencer’s ability to make that judgment [of life imprisonment
without parole] in homicide cases, [however] we require it to
take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison.” 132 S. Ct. at 2469.
As we noted in State v. Ramirez, 287 Neb. 356, 842
N.W.2d 694 (2014), in response to Miller, the Nebraska
Legislature enacted Neb. Rev. Stat. § 28-105.02 (Cum. Supp.
2014), regarding sentencing for certain murderers convicted
of crimes classified as Class IA felonies. Section 28-105.02
provides:
(1) Notwithstanding any other provision of law, the
penalty for any person convicted of a Class IA felony for
an offense committed when such person was under the
age of eighteen years shall be a maximum sentence of not
greater than life imprisonment and a minimum sentence
of not less than forty years’ imprisonment.
(2) In determining the sentence of a convicted person
under subsection (1) of this section, the court shall con-
sider mitigating factors which led to the commission of
the offense. The convicted person may submit mitigating
factors to the court, including, but not limited to:
(a) The convicted person’s age at the time of the
offense;
(b) The impetuosity of the convicted person;
(c) The convicted person’s family and community
environment;
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(d) The convicted person’s ability to appreciate the
risks and consequences of the conduct;
(e) The convicted person’s intellectual capacity; and
(f) The outcome of a comprehensive mental health
evaluation of the convicted person conducted by an
adolescent mental health professional licensed in this
state. The evaluation shall include, but not be limited to,
interviews with the convicted person’s family in order
to learn about the convicted person’s prenatal history,
developmental history, medical history, substance abuse
treatment history, if any, social history, and psychologi-
cal history.
Section 28-105.02 applies specifically to sentences for Class IA
felonies, and therefore by its terms, does not apply to the
present sentence resulting from Cardeilhac’s conviction for
second degree murder, a Class IB felony. Arguably, because a
person convicted of a Class IB felony could be sentenced to
imprisonment for a term of life to life, the Legislature might
have chosen to require a court to consider the mitigating fac-
tors listed in § 28-105.02(2) when sentencing a juvenile for a
Class IB felony, as well as for a Class IA felony. However, the
Legislature did not so provide and therefore the district court
could not have violated § 28-105.02 by failing to consider
such specific statutory factors in sentencing Cardeilhac in this
Class IB felony case.
Although consideration of the statutory factors in § 28-105.02
was not required, Cardeilhac nevertheless argues that because
a juvenile convicted of a Class IB felony can be sentenced
to life imprisonment, Miller v. Alabama, ___ U.S. ___, 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012), requires a sentencing
court to consider the factors set forth in § 28-105.02 before it
sentences a juvenile for a Class IB felony. Because the court
in this case did not explicitly state it was following the factors
listed in § 28-105.02, Cardeilhac contends that Miller juvenile
sentencing principles dictate that his sentence be vacated. We
reject this argument for several reasons, including the fact that
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Cardeilhac was not sentenced to life imprisonment without
parole, and in any event, he received the full benefit of Miller
juvenile sentencing principles.
We note first that unlike the focus of Miller, supra, i.e.,
mandatory life in prison without parole, Cardeilhac was not in
fact sentenced to imprisonment for life without the possibility
of parole. Instead, Cardeilhac was sentenced to imprisonment
for a minimum of 60 years to life to be served consecutively
to an 8- to 15-year sentence in a separate robbery case that he
was already serving. Therefore, he will be eligible for parole
as the district court noted at sentencing. See Neb. Rev. Stat.
§ 83-1,110(1) (Reissue 2014) (“[e]very committed offender
shall be eligible for parole when the offender has served one-
half the minimum term of his or her sentence”). Cf. State v.
Castaneda, 287 Neb. 289, 842 N.W.2d 740 (2014) (offender
sentenced to minimum of life imprisonment is not eligible for
parole). Strictly read, Miller forbids only the imposition of a
mandatory sentence of life imprisonment without parole on
a person under age 18 who has committed a homicide. And
according to the U.S. Supreme Court in its recent opinion,
“[a] state may remedy a Miller violation by permitting juve-
nile homicide offenders to be considered for parole, rather
than by resentencing them.” Montgomery v. Louisiana, ___
U.S. ___, 136 S. Ct. 718, 736, 193 L. Ed. 2d 599 (2016) (cit-
ing approvingly of Wyoming legislation providing that juve-
nile offenders sentenced to life imprisonment are eligible for
parole after 25 years (Wyo. Stat. Ann. § 6-10-301(c) (2013))).
Because the sentence imposed on Cardeilhac allows him to
be considered for parole, Miller would not be offended on
this basis.
We are aware that other courts have discussed whether the
sentencing principles of Miller, supra, apply when a juvenile
is not sentenced to life imprisonment but instead is sentenced
to a term of years that is lengthy or, when aggregated with
other sentences, the term of imprisonment is so long that
the defend­ ant will have effectively served a term of life
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imprisonment before he or she is eligible for parole. Such
opinions tend to note that the Court’s decision in Miller was
based in part on Graham v. Florida, 560 U.S. 48, 130 S. Ct.
2011, 176 L. Ed. 2d 825 (2010), which generally held that life
imprisonment without the possibility of parole for juveniles
convicted of nonhomicide offenses was unconstitutional. In
particular, Graham stated that such juveniles must be given
“some meaningful opportunity to obtain release based on dem-
onstrated maturity and rehabilitation.” 560 U.S. at 75. Even
though the U.S. Supreme Court has not addressed whether
imprisonment for a lengthy term of years triggers Miller sen-
tencing principles, these courts have reasoned that a meaning-
ful opportunity to obtain release requires that a lengthy term
of years be considered the equivalent of a life sentence and
that Miller sentencing protections relating to life sentences for
juveniles apply to such lengthy terms of imprisonment. See,
e.g., Casiano v. Commissioner of Correction, 317 Conn. 52,
115 A.3d 1031 (2015); State v. Null, 836 N.W.2d 41 (Iowa
2013); Bear Cloud v. State, 334 P.3d 132 (Wyo. 2014). Other
courts have decided that at some point, a term of years might
become the equivalent of imprisonment for life or life with-
out parole and reduced the sentence on appeal. See Brown v.
State, 10 N.E.3d 1 (Ind. 2014) (ruling that 150-year aggregate
sentence for two counts of murder and one count of robbery
is similar to life without parole, Supreme Court of Indiana
reduced sentence to 80 years).
Other courts have found that even a lengthy term of years
is not the equivalent of a life sentence if parole is possible
within the defendant’s expected lifetime. In State v. Zuber,
442 N.J. Super. 611, 126 A.3d 335 (2015), the Superior Court
of New Jersey considered the case of a defendant who was
serving consecutive sentences for numerous offenses arising
out of two incidents when he was a juvenile. Although the
sentences of imprisonment totaled 110 years, the defend­
ant would be eligible for parole in 55 years. The court
in Zuber assumed without deciding that the principles of
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Graham could apply to the defendant’s total aggregated sen-
tences. The court concluded that because the defendant’s
predicted lifespan exceeded his parole eligibility date, the
defendant had a meaningful and realistic opportunity to obtain
release, and that therefore, the sentence was not de facto a
life sentence.
The court in Zuber, supra, specifically disagreed with Null,
supra, and Bear Cloud, supra, and what it characterized as
the holdings in those cases to the effect that a defendant’s
“‘geriatric release’” was sufficient to trigger the protections
of Graham, supra, and Miller v. Alabama, ___ U.S. ___, 132
S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The court in Zuber
also disagreed with what it characterized as the holding in
Casiano, supra, that Graham required that a defendant have
an opportunity for a meaningful life outside of prison in which
to engage in a career or to raise a family. See, also, Thomas v.
State, 78 So. 3d 644 (Fla. App. 2011) (deciding under Graham,
that while at some point term-of-years sentence may become
functional equivalent of life, 50-year sentence is not functional
equivalent). The Zuber opinion is consistent with the recent
case of Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct.
718, 737, 193 L. Ed. 2d 599 (2016), in which the Court char-
acterized the period after release on parole not in terms of the
quality of life but of consisting merely of “some years of life
outside prison walls.”
The foregoing and similar cases are concerned initially with
whether the nature of the sentence imposed triggers Graham
and Miller juvenile sentencing protections such that the sen-
tences should be vacated and the causes remanded for sentenc-
ing hearings consistent with Miller. In this case, we need not
decide whether Miller applies to a sentence having a minimum
other than life imprisonment or, if it does, whether the mini-
mum sentence here is of such a nature or length that the Miller
protections of individualized sentencing apply and require an
order of remand, because the sentencing hearing in this case
did in fact comply with Miller principles.
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Considerable evidence was offered at the sentencing hear-
ing regarding Cardeilhac’s life, maturity, abilities, history,
and environment. At the sentencing, in addition to stating
that it considered the usual factors, including the defendant’s
age, maturity, experience, and background, the court stated
that it considered the testimony it heard at the sentenc-
ing hearing. Such testimony included two witnesses pre-
sented by Cardeilhac. The first was the mother of a friend of
Cardeilhac who testified regarding Cardeilhac’s character and
problems that he had had at home. In addition, Cardeilhac
called Dr. Pope, specifically as a witness regarding sentenc-
ing. Dr. Pope was certified in child and adolescent psychia-
try. Dr. Pope’s testimony included general testimony regard-
ing differences in brain development and brain functioning
between adults and adolescents as well as specific observa-
tions about Cardeilhac based on her review of his records
and interviews with Cardeilhac, his mother, and his friend’s
mother. Dr. Pope testified regarding Cardeilhac’s particular
circumstances. Her testimony incorporated the features of a
Miller sentencing hearing.
Although, as we noted above, the court was not required
to follow § 28-105.02(2), because, by its terms, the statute
applies to Class IA felonies and Cardeilhac was sentenced for a
Class IB felony, the testimony presented by Cardeilhac at sen-
tencing covered numerous factors set forth in § 28-105.02(2).
Such evidence related to, inter alia, Cardeilhac’s age, impetu-
osity, family and community environment, and ability to appre-
ciate risks. Therefore, although the court did not explicitly
state that it considered the factors set forth in § 28-105.02(2),
it did consider evidence which addressed those statutory fac-
tors. In addition, the sentencing decision comported with the
principles and purposes of juvenile sentencing and the process
prescribed in Miller, supra, which directs the sentencing court
to “take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison,” 132 S. Ct. at 2469. Therefore, although
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we need not decide whether Miller applies, we determine that
the court in this case did in fact take into account the consid-
erations required by Miller before it sentenced Cardeilhac.
Cardeilhac’s assignment of error challenging his sentence is
without merit.
CONCLUSION
Having rejected Cardeilhac’s assignments of error, we
affirm his conviction for second degree murder and the sen-
tence of imprisonment of 60 years to life.
A ffirmed.
McCormack and Stacy, JJ., not participating.