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defendant’s prior conviction may be used for purposes of sentence enhancement.

Thus, although our reasoning differs somewhat from that of 

the district court, we agree with its conclusion that collateral 

estoppel did not bar the use of Bruckner’s 1999 and 2001 DUI 

convictions as two of the three prior convictions necessary to 

enhance his 2012 conviction to fourth offense.

CONCLUSION

For the reasons discussed, we affirm the judgment of the 

district court.

Affirmed.

Wright, J., participating on briefs.

State of Nebraska, appellee, v. 

Juan E. Castaneda, appellant.

___ N.W.2d ___

Filed February 7, 2014. No. S-11-023.

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 discretion a factor in determining admissibility.

2. Judgments: Appeal and Error. In making the determination as to factual questions, an appellate court does not reweigh the evidence or resolve conflicts in the 

evidence, but, rather, recognizes the trial court as the finder of fact and takes into 

consideration that it observed the witnesses.

3. Trial: Judges: Evidence. Trial judges are allowed to exclude evidence if its 

probative value is outweighed by unfair prejudice, confusion of the issues, or 

potential to mislead the jury.

4. Criminal Law: Trial: Rules of Evidence: Polygraph Tests. An evidentiary rule 

categorically excluding polygraph results is not arbitrary, because state and federal governments have broad latitude to establish rules excluding evidence from 

criminal trials.

5. Trial: Juries: Witnesses: Testimony. A fundamental principle of the justice system is that the jury is the lie detector, determining the weight and credibility of 

witness testimony.

6. Polygraph Tests: Prejudicial Statements. Polygraph results are generally inadmissible as unduly prejudicial.

7. Rules of Evidence: Hearsay. The foundation of trustworthiness required by 

the business records exception to the hearsay rule is sufficient to satisfy the 

authentication requirement of Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 

(Reissue 2008).
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8. Trial: Evidence: Appeal and Error. An appellate court reviews a trial court’s 

ruling on authentication for an abuse of discretion.

9. Trial: Rules of Evidence: Appeal and Error. Under Neb. Evid. R. 103, Neb. 

Rev. Stat. § 27-103 (Reissue 2008), error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is 

affected and, in case the ruling is one excluding evidence, the substance of the 

evidence was made known to the judge by offer or was apparent from the context 

within which questions were asked.

10. Constitutional Law: Appeal and Error. The Nebraska Supreme Court ordinarily construes Nebraska’s ex post facto clause to provide no greater protections 

than those guaranteed by the federal Constitution.

11. Constitutional Law: Statutes: Sentences. A law which purports to apply to 

events that occurred before the law’s enactment, and which disadvantages a 

defendant by creating or enhancing penalties that did not exist when the offense 

was committed, is an ex post facto law and will not be endorsed by the courts.

12. Criminal Law: Statutes: Legislature: 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.

Appeal from the District Court for Douglas County: John

D. Hartigan, Jr., Judge. Convictions affirmed, all sentences 

vacated, and cause remanded for resentencing.

Thomas C. Riley, Douglas County Public Defender, for 

appellant.

Jon Bruning, Attorney General, James D. Smith, and Stacy 

M. Foust for appellee.

Marsha Levick, Deputy Director and Chief Counsel, and 

Emily Keller and Lauren Fine for amicus curiae Juvenile 

Law Center.

Amy A. Miller, for amicus curiae American Civil Liberties 

Union Foundation of Nebraska.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Heavican, C.J.

I. INTRODUCTION

Juan E. Castaneda was convicted of several charges arising 

from three shootings that occurred in Omaha, Nebraska, on 
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November 12, 2008. We affirm Castaneda’s convictions in all 

respects, but conclude that the sentences of life imprisonment 

without the possibility of parole imposed upon Castaneda were 

unconstitutional. Accordingly, we vacate those sentences and 

remand the cause for resentencing.

II. BACKGROUND

Castaneda was convicted by a jury of two counts of first 

degree felony murder, one count of attempted second degree 

murder, one count of attempted robbery, three counts of use of 

a deadly weapon to commit a felony, and one count of criminal 

conspiracy. He was sentenced to two terms of life imprisonment without the possibility of parole for first degree murder, 

10 to 20 years in prison for attempted second degree murder, 

10 to 15 years in prison for attempted robbery, 10 to 15 years 

in prison for criminal conspiracy, and 10 to 15 years in prison 

for each of the weapons convictions. At the time of the shootings, Castaneda was 15 years old.

1. Shootings

The victim of the first shooting was found at approximately 

10:45 p.m. on November 12, 2008. Luis Silva, who lived on 

Dorcas Street in Omaha, was found outside his home by his 

cousin, Jose Hernandez. Hernandez testified that when he heard 

a car horn and other sounds, he went outside and saw Silva on 

the ground with two individuals standing over him. One of the 

individuals near Silva was holding a gun. He pointed the gun 

at Hernandez and, in Spanish, demanded money. Hernandez 

returned to the house, and the second individual said “let’s go,” 

in English.

Silva had been shot twice. One bullet grazed the left side 

of Silva’s head, and the second entered his chest under his 

left arm. Silva was declared dead upon his arrival at an 

Omaha hospital.

Hernandez described the two assailants. One was wearing 

black pants and a gray, hooded sweatshirt, and the other wore 

black pants and a black, hooded sweatshirt with the hood 

pulled over his head. Hernandez identified both as appearing 

to be “Latin,” but when counsel for the State asked Hernandez 
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about their ability to speak Spanish, he answered, “Not very 

well. Like they were born here.”

Shortly before Silva was shot, two brothers, Mark and 

Charles McCormick, were visiting their cousin at his residence 

near 13th and Dorcas Streets. As the McCormicks were leaving 

the residence at about 10:30 p.m., two men, one holding a gun, 

approached and demanded money. Mark replied that he had no 

money, and when he and Charles threatened the two men with 

a “piece of wood” or “tree stump,” the men started “backing 

away.” Mark described the first man, who was holding the gun, 

as wearing a gray, hooded sweatshirt. The second man was 

wearing a dark-colored, hooded sweatshirt.

At approximately 11 p.m., Charles Denton and Hilary Nelsen 

drove to a walkup automatic teller machine (ATM) in the 50th 

Street and Underwood Avenue area, where Denton parked the 

vehicle and got out to use the ATM. Denton observed two men 

walking through the parking lot, and he thought they looked 

out of place. After Denton returned to the vehicle and started 

to drive away, the two men ran toward Denton’s vehicle. One 

of the men approached the driver’s-side window and demanded 

money. The man fired a gun at the vehicle, and the driver’sside window shattered. Denton drove away and called the 911 

emergency dispatch service. When he was about 1 mile away, 

Denton stopped the vehicle because he realized he had been 

shot. Denton sustained a bullet wound through his bicep and a 

graze on his chest.

Nelsen testified that the men were wearing baggy jeans and 

hooded sweatshirts. Nelsen also testified that one of the sweatshirts was dark and one was white and that both men had the 

hoods pulled over their heads. Denton also said one sweatshirt 

was lighter and the other was darker. Nelsen said the men were 

young and were either “Mexican” or “African-American,” but 

not white. Denton stated that although he did not get a good 

look at the men’s faces, both were “Hispanic.”

Shortly after 11 p.m., a passerby saw a car with its engine 

running and lights on in front of a gas station at 52d and 

Leavenworth Streets. The witness stopped because there were 

no lights on in the parking lot. The car door was open, and its 

interior lights were on. The witness saw a person lying on the 
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ground nearby and called 911. The victim was identified as 

Tari Glinsmann, who worked at the gas station and had just 

finished her shift. The car was a green Ford Taurus Glinsmann 

had borrowed from a friend that night. Glinsmann was dead 

when rescue workers arrived on the scene.

2. Cervantes’ Version of Events

The State entered into an agreement with Edgar Cervantes 

to dismiss murder charges against him in exchange for his testimony. Cervantes testified that on November 12, 2008, he was 

living with Santiago Jacobo and his family. Cervantes agreed 

to transport Jacobo’s children to and from school in exchange 

for the use of Jacobo’s Chevrolet Cavalier.

According to Cervantes, he needed money so he called 

Eric Ramirez on November 12, 2008, and asked if Ramirez 

wanted “to go rob some people.” Later that day, Cervantes 

met Ramirez at the home of a female friend who lived near 

24th and L Streets. Cervantes stated that he had a beer and 

used cocaine while at the friend’s house. Other people at the 

house included Jacob Shantz and Castaneda. Ramirez ultimately requested that Cervantes give Shantz a ride home, and 

Cervantes agreed. Castaneda accompanied them.

Cervantes testified that he and Ramirez were wearing black 

pants and gray, hooded sweatshirts and that Castaneda was 

wearing black pants and a black coat with fur trim. Ramirez 

was in the front passenger seat, and Castaneda and Shantz were 

sitting in the back seat.

Cervantes stated that as he was driving to Shantz’ home, 

Ramirez asked to see the gun that Cervantes had recently purchased. The gun was under the driver’s seat, wrapped in a blue 

bandanna. Cervantes said he handed the gun to Ramirez, and 

Ramirez placed the gun under his seat. After they dropped off 

Shantz, Cervantes, Ramirez, and Castaneda drove to 13th and 

Dorcas Streets where they saw two men getting out of a truck. 

Cervantes stated that Ramirez and Castaneda got out of the car 

and that he heard a gunshot shortly thereafter. Cervantes said 

Ramirez and Castaneda ran back to the car and stated that they 

had attempted to rob two white men, but that the men did not 

have any money and had “started getting crazy.”
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Cervantes testified that he then drove to 16th and Dorcas 

Streets, where he pointed out Silva as “the Mexican guy in 

the Blazer.” Once again, Cervantes waited in the car while 

Ramirez and Castaneda got out. Cervantes said he heard 

two gunshots about a minute later. Cervantes stated that 

Ramirez later said that when Silva began blowing the car 

horn, Castaneda dragged Silva out of his vehicle and Ramirez 

shot him.

Cervantes testified that after the robbery and shooting of Silva, Cervantes drove to an area near 50th Street 

and Underwood Avenue, where they saw a man at an ATM. 

Cervantes said he waited on the other side of the street as 

Ramirez and Castaneda got out of the car. Cervantes said he 

heard two gunshots and then Ramirez and Castaneda came 

back to the car. Cervantes then drove south until they reached 

52d and Leavenworth Streets.

Cervantes stated that Ramirez asked Cervantes to stop 

when Ramirez saw Glinsmann at the gas station. Ramirez and 

Castaneda got out of the car, and Cervantes parked in a nearby 

lot. Cervantes said he heard a gunshot and then Ramirez and 

Castaneda came back to the car and got in.

Cervantes stated that he drove back to the female friend’s 

house near 24th and L Streets. On the way, Ramirez told 

Cervantes that Glinsmann had no money, that Castaneda pulled 

her out of the car, and that Ramirez shot her. Cervantes said he 

told Ramirez to keep the gun. After drinking beer and smoking marijuana for a short time, Cervantes returned to Jacobo’s 

house. Cervantes testified that he stayed up most of the night 

smoking marijuana and finally went to bed in the early morning hours.

When Jacobo woke Cervantes the next morning, Cervantes 

said Jacobo appeared nervous. Jacobo asked Cervantes about 

the night before, because Jacobo noticed a number of police 

officers in the area. Cervantes said he told Jacobo about the 

robberies and told Jacobo that Ramirez “kind of went crazy 

with the gun.” Jacobo told Cervantes to leave the home. 

Cervantes then went to his parents’ house and stayed there.

Cervantes got a ride from Roberto Hidalgo to his parents’ home after Jacobo asked him to leave. Hidalgo testified 
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that Cervantes said that “he [Cervantes] shot the guy and 

[Ramirez] did the rest.” When police contacted Hidalgo shortly 

after the shootings, Hidalgo denied any knowledge of the 

crimes. Hidalgo later gave a statement to police and stated that 

Cervantes never mentioned Castaneda’s involvement.

Five days after the shootings, the police contacted Cervantes 

and Cervantes denied all involvement. During a second interview on November 22, 2008, Cervantes admitted that he had 

been the driver of the car involved in the shootings and that 

Ramirez and Castaneda were also involved. Cervantes testified 

that he was tired of lying and that he was not initially completely truthful.

During cross-examination, Cervantes admitted that he lied 

to police on multiple occasions and that, in fact, he could not 

remember his lies. The trial court sustained the State’s motion 

in limine to exclude all testimony regarding two polygraph 

examinations taken by Cervantes. Cervantes insisted that he 

was the driver of the vehicle, that Castaneda pulled Silva and 

Glinsmann out of their respective vehicles, and that Ramirez 

shot Silva, Denton, and Glinsmann.

3. Search Warrants

Castaneda’s palmprint was found on the hood of Glinsmann’s 

vehicle, the Ford Taurus she had borrowed, and a search 

warrant was issued for his residence. Items removed from 

Castaneda’s bedroom included a dark-colored, hooded jacket, 

a disposable camera, a pair of shoes, an identification card, 

bandannas, and a blue spiral notebook.

During the initial search, an Omaha police officer observed 

a black jacket with a fur-lined hood. The jacket was not seized 

because it did not match any descriptions given by witnesses. 

However, the officer later viewed surveillance footage from 

the gas station where Glinsmann was shot and saw that one 

assailant was wearing a dark-colored, hooded jacket with 

fur trim.

An amended search warrant was executed on November 17, 

2008, to look for the hooded jacket. Although the jacket was 

not found, a photograph taken with a disposable camera shows 

the fur-lined jacket in the background in Castaneda’s bedroom. 
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An officer with the Omaha Police Department’s gang unit also 

took a photograph of Castaneda in which he was wearing a 

black jacket with fur trim.

4. Forensic Evidence

A crime scene technician with a specialty in firearms and 

ammunition testified that to a reasonable degree of scientific 

certainty, all of the recovered bullets from all of the crime 

scenes were fired from the same weapon.

The Chevrolet Cavalier used in the commission of the 

crimes was searched. Among the items found were a gray, 

hooded sweatshirt and a brown leather wallet containing 

Silva’s identification. Castaneda could not be excluded as a 

donor for the DNA swab of the outside of the right sleeve 

or the outside of the left sleeve of the sweatshirt. Castaneda 

also could not be excluded as the donor for the swabs taken 

of the side of the right seat and the back seat levers of the 

car, nor could Castaneda be excluded as a donor for DNA 

swabbed from a sports drink bottle found in the back seat of 

the Cavalier.

5. Alibi Evidence

Castaneda offered alibi evidence from John Orduna and 

Castaneda’s stepmother, who both testified that Castaneda was 

at home the night of November 12, 2008. Orduna, who lived 

in the same apartment building as Castaneda and his family, 

testified that he saw Castaneda that night between 9:30 and 

10 p.m., but certainly before 11 p.m. Orduna stated that he 

and his wife often sat on the porch of the apartment building drinking beer until 1:30 or 2 a.m. and that on November 

12, Castaneda came out and spoke with them. Orduna said 

that Castaneda was alone, that Castaneda went back inside 

of the apartment building, and that Orduna and his wife were 

on the porch until late that night. On rebuttal, however, the 

State called the manager from the restaurant where Orduna’s 

wife had been employed. Employment records indicated that 

Orduna’s wife had not clocked out until nearly 1 a.m. on 

November 13.

Castaneda’s stepmother testified that on November 12, 2008, 

Castaneda went to school and arrived home around 3:30 p.m. 
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Castaneda left the apartment with his father at approximately 

6 p.m. to pick up Castaneda’s girlfriend, and they took the 

girlfriend back home around 8:30 p.m. Castaneda and his 

father were home by 9 p.m., and Castaneda did not leave the 

apartment again that evening. Castaneda’s stepmother testified 

that she was awake until 11 p.m. On cross-examination, however, she said that she was a sound sleeper and that she would 

not have awakened if Castaneda had left the apartment. She 

also stated that she did not recall seeing Orduna on the porch 

that day.

The jury found Castaneda guilty on all counts, and he 

appeals.

III. ASSIGNMENTS OF ERROR

Castaneda assigns that the trial court erred when it (1) 

allowed the jury to review an exhibit during its deliberations, 

(2) precluded him from offering evidence that Cervantes had 

failed a polygraph examination, (3) allowed cell phone records 

into evidence, (4) allowed the State to present fingerprint evidence, and (5) sustained the State’s hearsay objection to an 

Internet news report. Castaneda also assigns that the accumulation of errors constitutes reversible error, even if any one error 

does not. In addition, he argues that the trial court erred when 

it unconstitutionally sentenced Castaneda to life in prison without the possibility of parole.

The State argues that the trial court committed plain error 

when it did not make the sentences for use of a deadly weapon 

consecutive to all convictions.

IV. STANDARD OF REVIEW

[1] 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 discretion a factor in determining 

admissibility.1

[2] In making the determination as to factual questions, 

an appellate court does not reweigh the evidence or resolve 

1 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
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conflicts in the evidence, but, rather, recognizes the trial court 

as the finder of fact and takes into consideration that it 

observed the witnesses.2

V. ANALYSIS

Castaneda’s assignments of error generally fall into two 

categories: whether the trial court erred when it admitted or 

excluded certain evidence and whether it is unconstitutional to 

sentence a juvenile to life without the possibility of parole. We 

address the evidentiary issues first.

1. Evidentiary Issues

(a) Exhibit 201—Crime Scene Video

William Henningsen, a criminalist and expert in digital 

images and forensic video with the Omaha Police Department, 

removed the entire surveillance system from the gas station 

where Glinsmann was shot. The cameras were motion sensitive, and Henningsen was able to make a frame-by-frame copy 

of the video and to clarify and enlarge the images. Exhibit 

201 was one of those enhanced copies, and it included yellow 

notes and arrows pointing to Glinsmann and “Subject #1” and 

“Subject #2.”

During deliberations, the jury requested that it be allowed to 

review the complete video presentation created by Henningsen. 

The defense objected, asserting that it gave improper emphasis 

on Henningsen’s testimony. The jury indicated that it wanted 

to review the gas station video in slow motion or frame-byframe. The only exhibit that allowed for such a review was 

exhibit 201. With counsel present in the courtroom, the court 

allowed limited review of portions of exhibit 201, as requested 

by the jury. The jury was not allowed to take the exhibit to the 

jury room.

Castaneda claims it was error to allow the jury to 

review the exhibit because it was testimonial evidence that 

2 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
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improperly emphasized Henningsen’s testimony and not that of 

the other witnesses.

Conversely, the State argues that the video was substantive 

evidence of the Glinsmann murder and that Henningsen’s notes 

did no more than indicate portions of the video that the members of the jury could view for themselves.

This court has previously noted that, generally, a trial court 

does not have discretion to submit testimony materials to 

the jury for unsupervised review, but that the trial court has 

broad discretion to submit to the jury nontestimonial exhibits, 

in particular, those constituting substantive evidence of the 

defendant’s guilt.3 And in this instance, the video to which 

Castaneda objects is substantive evidence of the crimes for 

which Castaneda was charged. The images from that video 

were proof that Castaneda was, in fact, one of the perpetrators 

of the charged murders.

Henningsen’s testimony at trial provided an explanation of 

the techniques used to retrieve the video surveillance from the 

gas station and the steps he followed to organize the video for 

presentation for trial. But his notes to exhibit 201 were not part 

of that testimony; rather, the notes were merely intended to 

facilitate the jury’s viewing of the exhibit.

And in any case, the trial court followed the procedure 

adopted by this court for use in determining when a jury 

should be permitted to view evidence after the parties rest. We 

have noted:

When a jury makes a request to rehear certain evidence, 

the common-law rule requires that a trial court discover 

the exact nature of the jury’s difficulty, isolate the precise testimony which can solve it, and weigh the probative value of the testimony against the danger of undue 

emphasis. If, after this careful exercise of discretion, 

the court decides to allow some repetition of the taperecorded evidence for the jury, it can do so in open court 

3 State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009).
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in the presence of the parties or their counsel or under 

other strictly controlled procedures of which the parties 

have been notified.4

During deliberations, the jury asked to be allowed to watch 

the surveillance video in slow motion or frame-by-frame. After 

inquiring as to the specific testimony that would resolve the 

jury’s question, the trial court determined that exhibit 201 

was the only exhibit that would meet the jury’s request. With 

counsel present in the courtroom, the court allowed the jury to 

review the exhibit. The trial court did not abuse its discretion 

in allowing the jury to review the video in the courtroom in the 

presence of counsel.

(b) Polygraph Examinations

Cervantes was given two polygraph examinations. The first 

was administered on April 16, 2010, after a jailhouse informant told police Cervantes had admitted that he shot Silva and 

that Ramirez shot Glinsmann. Cervantes was asked whether 

he had fired the shots that resulted in the deaths of Silva and 

Glinsmann. The officer administering the test determined that 

Cervantes was being deceptive in his answers to the questions 

about Silva. The test was inconclusive as to the questions 

about Glinsmann.

Cervantes was told by police that he failed the test. He was 

interviewed by police a second time, during which Cervantes 

explained that he believed he failed the first polygraph examination based on his guilt at having pointed out Silva to Ramirez 

and Castaneda. Cervantes was then asked to provide a written 

statement about the events of November 12, 2008, after which 

he was given a second polygraph examination. It consisted 

only of questions about whether the written statement was true. 

Cervantes was told he passed the second test.

The State made a motion in limine, seeking to bar the 

defense from mentioning the polygraph examinations or their 

results. The trial court sustained the motion, and in an offer of 

4 State v. Dixon, 259 Neb. 976, 987, 614 N.W.2d 288, 297 (2000), 

disapproved on other grounds, State v. Smith, 284 Neb. 636, 822 N.W.2d 

401 (2012).
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proof, the defense showed generally that in the first polygraph 

examination given on April 16, 2010, Cervantes had been 

deceptive regarding his role in Silva’s death and had denied 

telling the jailhouse informant he shot Silva.

Castaneda argues that he should have been allowed to crossexamine Cervantes regarding his failure of the first polygraph 

examination and that the failure to allow this questioning prevented him from presenting a complete defense as provided in 

Holmes v. South Carolina.

5

In Holmes, the defendant sought to introduce evidence of a 

third party’s guilt in order to raise doubt about his own guilt.6

South Carolina rules of evidence prohibited admission of evidence relating to a third party’s guilt if it “‘“cast[s] a bare suspicion upon another”’” or “‘“raise[s] a conjectural inference 

as to the commission of the crime by another.”’”7 The South 

Carolina Supreme Court held that because there was strong 

forensic evidence against the defendant, he could not introduce 

evidence of a third party’s guilt simply to raise the inference of 

his own innocence.8

[3] The U.S. Supreme Court stated that while state courts 

have broad latitude to establish rules excluding evidence from 

criminal trials, that latitude has limits. “‘Whether rooted directly 

in the Due Process Clause of the Fourteenth Amendment or in 

the Compulsory Process or Confrontation Clauses of the Sixth 

Amendment, the Constitution guarantees criminal defendants 

“a meaningful opportunity to present a complete defense.”’”9

But the Supreme Court also noted that

well-established rules of evidence permit trial judges to 

exclude evidence if its probative value is outweighed by 

certain other factors such as unfair prejudice, confusion 

5 Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 

503 (2006).

6 Id.

7 Id., 547 U.S. at 324, quoting State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 

(1941).

8 Id.

9 Id., 547 U.S. at 324, quoting Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 

2142, 90 L. Ed. 2d 636 (1986).
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of the issues, or potential to mislead the jury. . . . Plainly 

referring to rules of this type, we have stated that the 

Constitution permits judges “to exclude evidence that is 

‘repetitive . . . , only marginally relevant’ or poses an 

undue risk of ‘harassment, prejudice, [or] confusion of 

the issues.’”10

Castaneda relies on cases from other jurisdictions to suggest that the evidence of polygraph examinations should have 

been admitted. However, we do not find the cases supportive 

of Castaneda’s position. In State v. McDonough,

11 after the 

State’s main witness to a robbery was told that he had failed a 

polygraph examination, he changed his testimony and identified the defendant as the robber. At trial, the witness admitted 

that he first attempted to change his testimony out of fear of 

retaliation by the defendant or his family. The defendant sought 

to impeach the witness with the polygraph evidence, seeking 

to demonstrate that the test was instrumental in procuring the 

witness’ identification of the defendant at trial.12 Under those 

circumstances, the court concluded, the polygraph examination 

was more probative than prejudicial. The court held that the 

admission of polygraph results was not unduly prejudicial to 

the defendant, but it cautioned that polygraph results are generally not admissible.

In State v. Green,

13 on cross-examination, the State referred 

to a polygraph examination taken by a witness who allegedly overheard a conversation that would have supported the 

defendant’s claim of self-defense. On appeal, the State asserted 

that it referred to the polygraph to show that the witness 

“used facts he could not have known at the time of taking the 

polygraph examination to explain to police officers why he 

had failed the polygraph examination.”14 The appellate court 

held that statements made during a polygraph examination 

10 Id., 547 U.S. at 326-27, quoting Crane, supra note 9.

11 State v. McDonough, 350 A.2d 556 (Me. 1976).

12 Id.

13 State v. Green, 245 Kan. 398, 781 P.2d 678 (1989).

14 Id. at 406, 781 P.2d at 685.
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are admissible to demonstrate a lack of credibility but that the 

results of a polygraph examination are excluded because of 

their unreliability.15

Factually similar to the case at bar, in U.S. v. Pitner,

16

an informant was given a polygraph examination and gave 

answers that indicated deception. After the informant was 

confronted with the results of the examination, he changed 

his story. The federal district court ultimately admitted the 

evidence that the witness changed his story, but excluded the 

results of the examination itself.

[4,5] In the case at bar, Castaneda is seeking to admit the 

results of the polygraph examinations. In United States v. 

Scheffer,

17 the U.S. Supreme Court has held that an evidentiary 

rule categorically excluding polygraph results is not arbitrary, 

because state and federal governments have broad latitude to 

establish rules excluding evidence from criminal trials. There 

is no consensus that polygraph evidence is reliable, and a fundamental principle of the justice system is that the jury is the 

lie detector, determining the weight and credibility of witness 

testimony.18 The Holmes Court cited Scheffer with approval 

as a case involving an evidentiary rule that was not arbitrary 

or unreasonable.19

[6] In Nebraska, we have held that polygraph results are 

generally inadmissible as unduly prejudicial.20 However, in 

State v. Riley,

21 where the mere mention that a witness had 

taken a polygraph examination and presumably passed it bolstered the witness’ credibility, we concluded that the trial court 

abused its discretion when it overruled the defendant’s motion 

for a mistrial based on the polygraph reference. Implicit in our 

15 Id.

16 U.S. v. Pitner, 969 F. Supp. 1246 (W.D. Wash. 1997).

17 United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413 

(1998).

18 Id.

19 Holmes, supra note 5.

20 See State v. Riley, 281 Neb. 394, 796 N.W.2d 371 (2011).

21 Id.
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holding was the proposition that it was the jury’s responsibility 

to determine the credibility of witnesses.

Castaneda claims that he wanted to be able to confront 

Cervantes with the fact that he had changed his version of 

events after he was told he failed the first polygraph examination. But ultimately, Castaneda is seeking to admit the results 

of the polygraph to cast doubt on Cervantes’ credibility as a 

witness—something that the jury, as fact finder, is charged 

with determining. Similar to Riley, in which the mention of 

a polygraph examination bolstered a witness’ testimony, the 

mention of Cervantes’ failed polygraph examination in this 

case would cast doubt on his credibility.

Furthermore, Castaneda had the opportunity to rigorously 

cross-examine Cervantes regarding the conflicting statements 

he made to police. Castaneda also cross-examined the police 

officer who reinterviewed Cervantes and asked the officer’s 

opinion as to whether Cervantes lied about his role in the 

shootings. The following exchange occurred during the recrossexamination of the officer:

[Defense counsel:] And when you say you wanted to 

see if [Cervantes] was telling the truth, you mean you 

would challenge him with statements of other people?

[Officer:] Correct.

Q. And you told him flat out he was lying to you, 

didn’t you?

A. Yes, I did.

Q. And you had reason to believe that he was lying to 

you, didn’t you?

A. With the change of information, yes.

Q. Is that the only reason? Just yes or no.

A. Is that the only reason?

Q. That you had reason to believe he wasn’t telling 

the truth?

A. No.

The officer ultimately testified that Cervantes changed some 

details but that overall, Cervantes’ version of the events of 

November 12, 2008, did not change. The jury also heard testimony from the person who gave Cervantes a ride the day after 
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the shooting and from the jailhouse informant who claimed 

that Cervantes had admitted to killing Silva. While the particulars of Cervantes’ story changed, he never wavered in his 

statements to police that he was the driver of the vehicle on the 

night of the shootings, that Castaneda was involved, and that 

Ramirez shot Silva and Glinsmann.

Castaneda was able to thoroughly cross-examine Cervantes 

regarding the conflicting statements he made to police and 

was able to systematically develop his defense by showing 

that Cervantes lied to police and that Cervantes changed his 

story when he was confronted with his lies. Without being told 

of the polygraph examinations or their results, the jury was 

made aware that police had reason to believe that Cervantes 

was lying. It was not necessary to actually ask Cervantes if he 

failed the first polygraph examination.

As the U.S. Supreme Court noted, the jury acts as a lie 

detector, and as the finder of fact, the jury was responsible 

for determining whether Cervantes was a credible witness.22

The trial court did not err in sustaining the State’s motion in 

limine excluding the results of the polygraph examinations. 

Castaneda’s second assignment of error is without merit.

(c) Cell Phone Records

Castaneda next assigns that the trial court erred by admitting 

the records of cell phone calls and text messages.

The operations coordinator for a cell phone company in 

Nebraska testified as a custodian of records for that company. 

Records of cell phone calls and texts are each stored in different servers for 6 months. Data are recorded at the time a 

call is made or a text is sent. A subpoena was issued for the 

cell phone numbers registered to Castaneda’s stepmother and 

to Ramirez. The records showed no calls on Castaneda’s cell 

phone between 9:50 p.m. and 11:44 p.m. on November 12, 

2008. Cell phone activity resumed at 11:44 p.m. and continued 

until 12:25 a.m.

22 See Scheffer, supra note 17.
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Castaneda argues that computer-generated records which 

are manually entered are not assertions of a declarant and 

should be scrutinized for admissibility under rule 901,23 which 

provides the requirements for authentication or identification 

of evidence.

[7] We recently addressed a similar argument in State v. 

Taylor.

24 We stated that “[i]f the proponent’s showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of rule 

901(1).”25 “The foundation of trustworthiness required by the 

business records exception is sufficient to satisfy the authentication requirement of rule 901.”26 In Taylor, the cell phone 

records at issue were authenticated by the same employee who 

testified in the case at bar. The employee’s testimony in Taylor

was sufficient to authenticate the cell phone records, and it is 

also sufficient in this case.

Our opinion in Taylor was released after Castaneda submitted his briefs. Castaneda conceded at oral argument that Taylor 

resolved the issue. This assignment of error is therefore without merit.

(d) Fingerprint Evidence

At trial, the court received into evidence the surveillance 

footage from the gas station where Glinsmann was shot and a 

latent palmprint lifted from the hood of Glinsmann’s vehicle, 

the Ford Taurus she had borrowed. Glinsmann’s vehicle was 

towed to the police garage at the impound lot for processing. 

Because the vehicle was dirty, areas where dirt had been disturbed were visible and crime scene technicians were able to 

check for latent prints on those areas. Video surveillance from 

the gas station also showed the assailants pass near the hood 

of the vehicle.

A crime scene technician with a specialty in fingerprint identification testified that she dusted the exterior of 

23 Neb. Evid. R. 901, Neb. Rev. Stat. § 27-901 (Reissue 2008).

24 State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).

25 Id. at 315, 803 N.W.2d at 760.

26 Id. at 315, 803 N.W.2d at 761.
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Glinsmann’s vehicle for fingerprints, concentrating on areas 

where it appeared that the dust and dirt on the vehicle had been 

smudged. The fingerprint specialist lifted three latent prints 

from the vehicle: one from above the driver’s-side door handle, 

which print belonged to Glinsmann, and two on the hood of the 

vehicle on the passenger side, which prints appeared to be two 

parts of a left palmprint. That palmprint was later identified as 

belonging to Castaneda.

Castaneda argues that the trial court committed reversible 

error when it allowed the State to present testimony regarding 

fingerprint identification through the use of the “Automated 

Fingerprint Identification System” (AFIS), a database of prints 

on file from Nebraska. Castaneda claims that because the fingerprint specialist did not know when Castaneda’s prints were 

scanned into AFIS, any testimony regarding AFIS was hearsay. 

Castaneda suggests that testimony should have been elicited 

to show the process used to enter his fingerprints into AFIS. 

Without such testimony, Castaneda claims there was insufficient foundation.

[8] An appellate court reviews a trial court’s ruling on 

authentication for an abuse of discretion.27 We note that 

although Castaneda attacked the scientific validity and reliability of fingerprint identification at trial, he does not raise that 

issue on appeal.

In support of his argument, Castaneda cites a North 

Carolina case in which an officer compared the latent fingerprint to a “master file,” and then compared fingerprints 

taken by the officer to latent prints found at the scene of the 

crime.28 The North Carolina court determined that testimony 

regarding the master file fingerprint violated the hearsay rule 

and should have been excluded. If the conviction rested on 

the fingerprint evidence, it could not stand. However, the 

court found that the “evidence as to the common origin of 

[the] defendant’s known fingerprint and the latent print . . . 

is so overwhelming, and the prejudicial effect of the incompetent testimony concerning the master file fingerprint is so 

27 See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

28 See State v. Foster, 284 N.C. 259, 263, 200 S.E.2d 782, 786 (1973).
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insignificant by comparison, that the incompetent evidence 

was harmless beyond a reasonable doubt.”29 Exclusion of the 

evidence concerning the master file fingerprint would not 

have produced a different result.30

We find Foster persuasive but unhelpful to Castaneda’s 

arguments. The technician in Foster used virtually the same 

procedure used by the technicians in the case at bar. After 

using a “master file” or AFIS to make a preliminary identification, a new set of inked prints was taken from the subject. 

Those prints were then compared to the latent prints found at 

the crime scene. Therefore, even if testimony regarding the 

“master file” prints, or the prints found in AFIS, could be considered inadmissible hearsay, the error was harmless, because 

the actual identification was made from the inked prints that 

the technician personally obtained from Castaneda.

In addition, Castaneda was able to cross-examine the fingerprint specialist thoroughly on her credentials and training, as 

well as on the fact that she did not know any details concerning the date Castaneda’s prints were scanned into AFIS or the 

identity of the person who completed the scan. As pointed out 

by the State, whether the known prints in AFIS belonged to 

Castaneda went to the weight of the evidence, which is determined by a jury.31 The trial court did not abuse its discretion 

by allowing the testimony. This assignment of error is also 

without merit.

(e) Internet News Report

Castaneda offered into evidence a printout of an Internet 

news story that indicated Castaneda’s palmprint had been found 

on the hood of the Glinsmann vehicle at 52d and Leavenworth 

Streets. The trial court refused to allow it, finding that it was 

inadmissible hearsay.

Castaneda argues that the story was not offered for the truth 

of the matter asserted, but, rather, was offered to demonstrate 

that it was public knowledge that Castaneda had been arrested, 

29 Id. at 274, 200 S.E.2d at 793.

30 Id.

31 See State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011).
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that his palmprint was found at the scene, and that Cervantes 

named Castaneda, who had been arrested, to turn suspicion 

away from himself.

[9] Under evidence rule 10332:

(1) Error may not be predicated upon a ruling which 

admits or excludes evidence unless a substantial right of 

the party is affected, and:

. . . .

(b) In case the ruling is one excluding evidence, the 

substance of the evidence was made known to the judge 

by offer or was apparent from the context within which 

questions were asked.

When Castaneda sought to introduce the news story during 

trial, he did not argue that the story would demonstrate that 

fingerprint evidence linking Castaneda to the crime was public 

knowledge. Castaneda argued only that the story was not being 

offered for the truth of the matter. He failed to establish the 

news story’s relevance, and we find no error in the trial court’s 

refusal to admit it into evidence.

(f) Cumulative Errors

Also without merit is Castaneda’s assignment of error that 

the cumulative errors require reversal and a new trial. Because 

we find no merit to any of Castaneda’s assignments of error, 

there are no cumulative errors, and we accordingly reject 

this argument.

2. Sentences

(a) Arguments on Appeal

Castaneda argues that the district court erred in sentencing 

him to life imprisonment without the possibility of parole. 

The basis of Castaneda’s argument at the time this case was 

originally argued was that the U.S. Supreme Court’s decision 

in Graham v. Florida33 categorically prohibited a sentence 

of life imprisonment without the possibility of parole for 

32 Neb. Evid. R. 103, Neb. Rev. Stat. § 27-103 (Reissue 2008).

33 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010).
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juvenile offenders. In Graham, a juvenile who participated 

in an armed robbery was charged as an adult and sentenced 

to life imprisonment without the possibility of parole. The 

Supreme Court ruled that sentencing a juvenile to life imprisonment without parole for a nonhomicide crime was a violation of the Eighth Amendment prohibition against cruel and 

unusual punishment.

(b) Miller v. Alabama

Following the submission of Castaneda’s appeal to this 

court, the U.S. Supreme Court decided Miller v. Alabama.34

Miller held it is unconstitutional to sentence a juvenile convicted of a homicide to a mandatory sentence of life imprisonment without the possibility of parole.

(c) Further Argument

This court ordered further argument on the impact of Miller

on Castaneda’s sentence. During those arguments, the State 

argued that Castaneda’s sentences are unaffected by Miller

because they were not sentences without the possibility of 

parole. Rather, upon commutation to a term of years, parole 

would be available to Castaneda. The State further argued 

that if Miller did apply, Castaneda’s current sentences of 

life imprisonment without the possibility of parole should be 

vacated and the cause remanded for resentencing in light of the 

sentencing factors discussed in Miller.

Conversely, Castaneda argued that the sentences imposed 

upon him were without the possibility of parole and that thus, 

Miller was applicable. Castaneda further argued that as a result 

of Miller, he could not be charged with a Class IA felony, 

because the only allowable sentence for such a felony would 

be life imprisonment. Castaneda instead asserted that he should 

be sentenced for second degree murder, a Class IB felony, 

because it is the “most serious degree of homicide for which 

he may be prosecuted” and thus provides the sentencing court 

34 Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).
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with the individualized sentencing options required by Graham 

and Miller.

35

(d) Life Imprisonment Without 

Possibility of Parole

We first address the State’s contention that Miller is inapplicable because Castaneda was not sentenced to life imprisonment without the possibility of parole.

At the time Castaneda was sentenced, Nebraska’s statutes 

provided that a juvenile convicted of first degree murder was 

subject to mandatory life imprisonment. The statutes did not 

expressly contain the qualifier “without parole.”36 However, 

according to Neb. Rev. Stat. § 83-1,110 (Reissue 2008), a 

committed offender becomes eligible for parole in Nebraska 

after serving “one-half the minimum term of his or her sentence.” Because there is no way to compute “one-half” of a 

life sentence, an offender sentenced to life imprisonment in 

Nebraska for first degree murder is not eligible for parole.37

Instead, although such an offender has his record reviewed by 

the Board of Parole every 10 years, he or she is not eligible 

for parole until the “sentence is commuted.”38 If commutation 

occurs, the offender’s record is reviewed annually when he or 

she is within 5 years of parole eligibility.39

In the State’s supplemental brief, it argues that Miller barred 

only those sentences denying any “‘possibility of parole.’”40 It 

contends that Nebraska’s scheme does not fall within this category, because parole is possible in Nebraska if the sentence 

is commuted to a term of years. Specifically, Neb. Const. art. 

IV, § 13, authorizes the Board of Pardons, a group composed 

35 Supplemental brief for appellant at 20.

36 See Neb. Rev. Stat. §§ 28-105 and 28-105.01 (Reissue 2008).

37 Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008). See State v. 

Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006).

38 Neb. Rev. Stat. § 83-192(1)(f)(v) (Reissue 2008).

39 Id.

40 Supplemental brief for appellee at 2, quoting Graham, supra note 33.
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of the Governor, the Attorney General, and the Secretary of 

State,41 to commute the sentence in “all cases of conviction,” 

which includes sentences of life imprisonment.42 Once the 

sentence is so commuted, the Board of Parole can review 

the sentence and release an inmate on parole.43 According to 

the State, under Nebraska law, Castaneda therefore has some 

possibility of being paroled, and thus his sentences do not 

violate Miller.

But the mere existence of a remote possibility of parole does 

not keep Nebraska’s sentencing scheme from falling within 

the dictates of Miller. Miller requires the sentencing scheme 

to provide “‘some meaningful opportunity to obtain release 

based on demonstrated maturity and rehabilitation.’”44 Miller

cited the scheme in Graham as coming within its dictates. 

And the scheme at issue in Graham, like Nebraska’s, did not 

expressly provide that the life sentence was “without parole.” 

Nevertheless, the Court held in Graham that because Florida 

had abolished its parole system, the sentence effectively gave 

the defendant no possibility of release “unless he is granted 

executive clemency.”45

Similarly, in Bonilla v. State,

46 the Iowa Supreme Court 

addressed whether Graham applied to a juvenile defendant 

convicted of a nonhomicide offense. Iowa’s statute provided 

that the defendant’s sentence was for life and that he “‘shall 

not be released on parole unless the governor commutes the 

sentence to a term of years.’”47 The Iowa court held that the 

fact that the defendant could “theoretically” receive a commutation was too much of a “‘remote possibility’” to support 

41 Neb. Rev. Stat. § 83-1,126 (Reissue 2008).

42 See, Poindexter, supra note 37; Otey v. State, 240 Neb. 813, 485 N.W.2d 

153 (1992).

43 § 83-192(1)(f)(v).

44 Miller, supra note 34, 132 S. Ct. at 2469 (emphasis supplied), quoting 

Graham, supra note 33.

45 Graham, supra note 33, 560 U.S. at 57.

46 Bonilla v. State, 791 N.W.2d 697 (Iowa 2010).

47 Id. at 700, quoting Iowa Code Ann. § 902.1 (West 2003).
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an argument that the defendant’s sentence was not without parole.48

And in State v. Dyer,

49 a Louisiana court found that defendants sentenced to life imprisonment were effectively sentenced 

to life without parole when they could not be eligible for 

parole “‘until [the] life sentence has been commuted to a fixed 

term of years.’” Noting that in Louisiana, the governor had 

complete discretion regarding whether to commute a sentence, 

Dyer held that the sentences were effectively without parole 

and fell under the dictates of Graham.

50

In addition, the U.S. Supreme Court itself has opined on the 

substantial difference between executive commutation power 

and parole.51 According to the Court, parole and commutation 

are different concepts as a matter of law, because parole is “a 

regular part of the rehabilitative process,”52 while commutation 

is “an ad hoc exercise of executive clemency.”53

Nebraska’s parole system has absolutely no application to 

Castaneda unless and until executive clemency in the form 

of sentence commutation is granted. And in Nebraska, executive clemency is a “‘free gift from the supreme authority,’” 

“‘to be bestowed according to his own discretion.’”54 The 

Board of Pardons thus has the unfettered discretion to grant or 

deny a commutation for any reason or for no reason at all.55

The sentencing scheme here and the availability of executive 

clemency under only a standard of unfettered discretion is 

remarkably similar to Florida, Iowa, and Louisiana. We find 

that Nebraska’s sentence of life imprisonment is effectively 

life imprisonment without parole under the rationale of Miller

48 Id. at 700 n.2.

49 State v. Dyer, 77 So. 3d 928, 929 (La. 2011).

50 Id.

51 Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983).

52 Id., 463 U.S. at 300.

53 Id., 463 U.S. at 301.

54 Otey, supra note 42, 240 Neb. at 824, 485 N.W.2d at 163 (emphasis in 

original), quoting Pleuler v. State, 11 Neb. 547, 10 N.W. 481 (1881).

55 Poindexter, supra note 37.
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and Graham, because it provides no meaningful opportunity 

to obtain release. As such, we reject the State’s argument that 

Miller is inapplicable because Castaneda was not sentenced to 

life imprisonment without the possibility of parole.

(e) Griffith v. Kentucky

Other than arguing that Miller was inapplicable for the 

reasons detailed and rejected above, the State concedes that 

Miller, as a new rule of law, would be applicable to any case 

on direct review. Castaneda concurs, and we agree. In Griffith 

v. Kentucky,

56 the U.S. Supreme Court held that “a new rule 

for the conduct of criminal prosecutions is to be applied 

retroactively to all cases, state or federal, pending on direct 

review or not yet final, with no exception for cases in which 

the new rule constitutes a ‘clear break’ with the past.” Because 

this case is currently on direct appeal, Miller is applicable 

to Castaneda.

(f) L.B. 44 and §§ 28-105.02 

and 83-1,110.04

Since we heard further arguments, the Nebraska Legislature 

passed, and the Governor approved, 2013 Neb. Laws, L.B. 44, 

which amended state law to “change penalty provisions with 

respect to Class IA felonies committed by persons under 

eighteen years of age [and] to change parole procedures with 

respect to offenses committed by persons under eighteen years 

of age.”

Neb. Rev. Stat. § 28-105.02 (Supp. 2013) 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 

56 Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 

(1987).
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consider 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;

(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 psychological history.

And Neb. Rev. Stat. § 83-1,110.04 (Supp. 2013) further 

provides:

(1) Any offender who was under the age of eighteen 

years when he or she committed the offense for which 

he or she was convicted and incarcerated shall, if the 

offender is denied parole, be considered for release on 

parole by the Board of Parole every year after the denial.

(2) During each hearing before the Board of Parole 

for the offender, the board shall consider and review, at 

a minimum:

(a) The offender’s educational and court documents;

(b) The offender’s participation in available rehabilitative and educational programs while incarcerated;

(c) The offender’s age at the time of the offense;

(d) The offender’s level of maturity;

(e) The offender’s ability to appreciate the risks and 

consequences of his or her conduct;

(f) The offender’s intellectual capacity;

(g) The offender’s level of participation in the offense;
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(h) The offender’s efforts toward rehabilitation; and

(i) Any other mitigating factor or circumstance submitted by the offender.

(g) Disposition

At the time of Castaneda’s sentencing for the first degree 

murder convictions, Class IA felonies, the district court was 

required by § 28-105(1) to impose sentences of life imprisonment. As we have explained, those sentences were tantamount 

to life imprisonment without the possibility of parole and, 

under Miller, were unconstitutional. As such, Castaneda’s life 

imprisonment sentences must be vacated and Castaneda must 

be resentenced.

Subsequent to the enactment of L.B. 44, this court sought 

supplemental briefing on the issue of whether Castaneda should 

be resentenced under the provisions of L.B. 44. The State contends that L.B. 44 should be utilized; Castaneda argues that to 

do so would violate the Ex Post Facto Clauses of the U.S.57 and 

Nebraska Constitutions.58

[10,11] This court ordinarily construes Nebraska’s ex post 

facto clause to provide no greater protections than those guaranteed by the federal Constitution.59 We have said that “‘[a] 

law which purports to apply to events that occurred before 

the law’s enactment, and which disadvantages a defendant by 

creating or enhancing penalties that did not exist when the 

offense was committed, is an ex post facto law and will not be 

endorsed by the courts.’”60

We have also held:

“Any statute which punishes as a crime an act previously committed which was innocent when done, which 

makes more burdensome the punishment for a crime after 

its commission, or which deprives one charged with a 

57 U.S. Const. art. I, § 10.

58 Neb. Const. art. I, § 16.

59 State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).

60 Id. at 83, 815 N.W.2d at 884.
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crime of any defense available according to law at the 

time when the act was committed is prohibited as ex 

post facto. The Ex Post Facto Clause does not, however, 

extend to limit legislative control of remedies and modes 

of procedure which do not affect matters of substance. 

Thus, statutes governing substantive matters in effect at 

the time of a crime govern, and not later enacted statutes. 

In contrast, the procedural statutes in effect on the date 

of a hearing or proceeding govern, and not those in effect 

when the violation took place.

“A change in law will be deemed to affect matters of 

substance where it increases the punishment or changes 

the ingredients of the offense or the ultimate facts necessary to establish guilt. In other words, a rule is substantive 

if it alters the range of conduct or the class of persons 

that the law punishes. In contrast, rules that regulate 

only the manner of determining a defendant’s culpability 

are procedural.”61

We are therefore faced with the issue of whether the sentencing provisions set forth in L.B. 44 increase the punishment or change the ingredients of the offense or the ultimate 

facts necessary to establish guilt. Because L.B. 44 deals with 

sentencing, it does not affect the ingredients of the offense or 

the facts necessary to establish guilt. Thus, we must answer 

whether L.B. 44 increases the punishment; if it does, then the 

change is substantive and ex post facto principles bar application of L.B. 44 to Castaneda on resentencing.

Castaneda argues that we must determine whether L.B. 44 

increases the punishment by comparing the possible range of 

sentences under L.B. 44 with the possible range of sentences 

for a Class IB felony. This argument is based upon Castaneda’s 

contention that because Miller invalidated the Nebraska sentencing scheme for Class IA felonies committed by juveniles, 

a Class IB felony is the “most serious degree of homicide for 

which he may be prosecuted.”62

61 Id.

62 Supplemental brief for appellant at 21.
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We find this argument contradicts precedent from the U.S. 

Supreme Court. In Dobbert v. Florida,

63 the defendant was 

convicted of first degree murder. At the time the murder was 

committed, the applicable Florida statute provided that the 

murder was to be punished by death unless the jury recommended mercy. Before the case came to final judgment, the 

Florida Supreme Court, based on a U.S. Supreme Court decision, found the statute to be unconstitutional.64 Florida then 

enacted a new statute specifying procedures to be utilized prior 

to the imposition of a death penalty. On appeal, the defendant 

argued that applying the new statute to him would violate ex 

post facto principles by increasing the punishment he was subject to. His argument was that because the prior statute was 

found to be unconstitutional, there was no valid death penalty 

in Florida as of the date of his actions, and that he thus could 

not be subjected to that penalty under the new statute. The 

Court rejected this argument, concluding:

[T]his sophistic argument mocks the substance of the 

Ex Post Facto Clause. Whether or not the old statute 

would, in the future, withstand constitutional attack, 

it clearly indicated Florida’s view of the severity of 

murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute 

was intended to provide maximum deterrence, and its 

existence on the statute books provided fair warning as 

to the degree of culpability which the State ascribed to 

the act of murder.

. . . Here the existence of the statute served as an 

“operative fact” to warn the petitioner of the penalty 

which Florida would seek to impose on him if he were 

convicted of first-degree murder. This was sufficient compliance with the ex post facto provision of the United 

States Constitution.65

63 Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977).

64 See Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 

(1972).

65 Dobbert, supra note 63, 432 U.S. at 297.
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Dobbert makes it clear that the effect of Miller on Nebraska 

law is not a factor in the ex post facto analysis of whether a 

later-enacted statute increases punishment for a crime. Rather, 

the proper comparison is the range of penalties that Nebraska 

law provided for a Class IA felony committed by a juvenile at 

the time Castaneda committed his crimes, within the range of 

penalties Nebraska law provides for a Class IA felony committed by a juvenile at the time Castaneda is resentenced. We 

observe that this is consistent with the underlying purpose of 

the Ex Post Facto Clause: to “assure that legislative Acts give 

fair warning of their effect and permit individuals to rely on 

their meaning until explicitly changed.”66

At the time Castaneda was sentenced, the only possible sentence for a first degree murder committed by a juvenile was 

life imprisonment. Under L.B. 44, the sentence is anywhere 

from 40 years to life imprisonment.67 The possible range of 

sentences provided for in L.B. 44 is not greater than the possible range of sentences which Castaneda was originally subjected to.68 As such, the change effected by L.B. 44 does not 

violate ex post facto principles.

[12] Nor is it inconsistent under Nebraska law for this 

mitigation in sentencing to apply upon resentencing. “[W]here 

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.”69

And in this case, the Legislature has not provided otherwise. 

We therefore vacate Castaneda’s life sentences and remand the 

cause for resentencing under the procedures set forth under 

L.B. 44.

66 Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 67 L. Ed. 2d 17 

(1981).

67 See § 28-105.02(1).

68 See §§ 28-105 and 28-105.01.

69 State v. Randolph, 186 Neb. 297, 301-02, 183 N.W.2d 225, 228 (1971). 

See, State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999); State v. 

Groff, 247 Neb. 586, 529 N.W.2d 50 (1995).
Nebraska Advance Sheets

320 287 NEBRASKA REPORTS

We decline to address Castaneda’s argument under Graham

as presented by his brief on appeal, because the possibility 

exists that upon remand, Castaneda might not be resentenced 

to life imprisonment.

Finally, the State argues that the district court committed 

plain error when it failed to order Castaneda’s three sentences 

for use of a deadly weapon to run consecutively “to all other 

sentences imposed.”70 We agree and vacate all of Castaneda’s 

other sentences and remand the cause for resentencing.71

VI. CONCLUSION

Castaneda’s assignments regarding trial error are without 

merit. But the life imprisonment sentences imposed upon 

Castaneda were effectively life imprisonment without the possibility of parole and unconstitutional under Miller.

72 We accordingly vacate those unconstitutional sentences and remand the 

cause for resentencing. We also vacate all of Castaneda’s other 

sentences, because the district court committed plain error in 

ordering some of those sentences to run concurrently rather 

than consecutively.

 Convictions affirmed, all sentences vacated, 

and cause remanded for resentencing.

70 Brief for appellee at 75 (emphasis in original).

71 See, Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2012); State v. Scott, 284 

Neb. 703, 824 N.W.2d 668 (2012); State v. Russell, 248 Neb. 723, 539 

N.W.2d 8 (1995).

72 Miller, supra note 34.

State of Nebraska, appellee, v. 

Douglas M. Mantich, appellant.

___ N.W.2d ___

Filed February 7, 2014. No. S-11-301.

1. Constitutional Law: Sentences. Whether a sentence violates the Eighth 

Amendment’s cruel and unusual punishment clause presents a question of law.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate 

court reaches a conclusion independent of the lower court’s ruling.