State v. Taylor

386 	287 NEBRASKA REPORTS
for resentencing in accordance with L.B. 44, as codified at
§ 28-105.02.
Upon our review of the record, we find plain error in the
district court’s sentencing order, which ordered that the three
sentences for the convictions of use of a deadly weapon to
commit a felony, counts II, IV, and VII, run concurrently with
any other sentence. We also find plain error in the district
court’s sentencing order, which ordered that the sentences for
the convictions of count V, attempted second degree murder;
count VI, attempted robbery; and count VIII, criminal con-
spiracy, run concurrently with the sentences for use of a deadly
weapon. We therefore vacate the sentences for counts II, IV, V,
VI, VII, and VIII, and remand the cause to the district court
with directions to resentence Ramirez on all these counts, so
that each sentence for the conviction of use of a deadly weapon
runs consecutively to all other sentences and concurrently with
no sentence.
C onviCtions affirmed, all sentenCes vaCated,
and Cause remanded for resentenCing.
state of nebraska, appellee, v.
trevelle J. taylor, appellant.
842 N.W.2d 771
Filed February 14, 2014. 	No. S-12-434.
1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court will review for clear error the
factual findings underpinning a trial court’s hearsay ruling and review de novo
the court’s ultimate determination whether the court admitted evidence over a
hearsay objection or excluded evidence on hearsay grounds.
2. Identification Procedures: Due Process: Appeal and Error. A district court’s
conclusion whether an identification is consistent with due process is reviewed de
novo, but the court’s findings of historical fact are reviewed for clear error.
3. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitu-
tionality and construction of a statute are questions of law, regarding which the
Nebraska Supreme Court is obligated to reach conclusions independent of those
reached by the court below.
4. Trial: Verdicts: Appeal and Error. Harmless error review looks to the basis
on which the trier of fact actually rested its verdict; the inquiry is not whether
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:36 AM CST

STATE v. TAYLOR 	387
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in a trial that occurred without the error a guilty verdict would surely have been
rendered, but, rather, whether the actual guilty verdict rendered in the questioned
trial was surely unattributable to the error.
5. Trial: Evidence: Appeal and Error. Erroneous admission of evidence is harm-
less error and does not require reversal if the evidence is cumulative and other
relevant evidence, properly admitted, supports the finding by the trier of fact.
6. Criminal Law: Identification Procedures: Witnesses: Words and Phrases. A
showup is usually defined as a one-on-one confrontation where the witness views
only the suspect, and it is commonly conducted at the scene of the crime, shortly
after the arrest or detention of a suspect and while the incident is still fresh in the
witness’ mind.
7. Constitutional Law: Identification Procedures: Due Process. An identification
procedure is constitutionally invalid only when it is so unnecessarily suggestive
and conducive to an irreparably mistaken identification that a defendant is denied
due process of law.
8. Identification Procedures. Reliability is the linchpin in determining the admis-
sibility of identification testimony.
9. 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: marlon
a. polk, Judge. Affirmed in part, sentence vacated in part, and
cause remanded for resentencing.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
H eaviCan, 	C.J., 	WrigHt, 	stepHan, 	miller-lerman, 	and
Cassel, JJ.
WrigHt, J.
I. NATURE OF CASE
A jury convicted Trevelle J. Taylor of first degree murder
and use of a deadly weapon to commit a felony. He was sen-
tenced to life imprisonment and a consecutive sentence of 10
years’ to 10 years’ imprisonment, respectively. His convictions
arose from his participation, at the age of 17 years, in the death
of Justin Gaines. In this direct appeal, Taylor alleges several
trial errors and claims his sentence of life imprisonment was

388 	287 NEBRASKA REPORTS
unconstitutional under Miller v. Alabama, ___ U.S. ___, 132 S.
Ct. 2455, 183 L. Ed. 2d 407 (2012). We affirm his convictions
but remand the cause for resentencing on the conviction of first
degree murder.
II. SCOPE OF REVIEW
[1] Apart from rulings under the residual hearsay exception,
we will review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination whether the court admitted
evidence over a hearsay objection or excluded evidence on
hearsay grounds. State v. Scott, 284 Neb. 703, 824 N.W.2d
668 (2012).
[2] “[A] district court’s conclusion whether an identifica-
tion is consistent with due process is reviewed de novo, but
the court’s findings of historical fact are reviewed for clear
error.” State v. Nolan, 283 Neb. 50, 61, 807 N.W.2d 520, 533
(2012), cert. denied ___ U.S. ___, 133 S. Ct. 158, 184 L. Ed.
2d 78.
[3] The constitutionality and construction of a statute are
questions of law, regarding which we are obligated to reach
conclusions independent of those reached by the court below.
Scott, supra.
III. FACTS
On September 19, 2009, Catrice Bryson was standing outside
a friend’s house on Curtis Avenue in Omaha, Nebraska, when
Gaines pulled into the driveway. Bryson and Gaines spoke for
about 10 minutes, during which time Gaines remained seated
in his vehicle. At one point during the conversation, Bryson
went to her vehicle and reached into the middle console for
a pen. When Bryson turned around to rejoin Gaines, she
looked toward Curtis Avenue, saw two men with guns, and
heard gunshots.
The two men were in the street behind Gaines’ vehicle,
one on the driver’s side and one on the passenger side. The
shooter on the driver’s side was an African American with a
“[l]ow haircut” and wore a brown shirt with orange writing
on it. The shooter on the passenger side was a “light-skinned”

STATE v. TAYLOR 	389
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African American with long braids, a white basketball jersey,
and a “do-rag.”
Bryson heard Gaines say that he had been shot. She ran
toward Gaines’ vehicle, screaming for the shooters to stop and
to leave Gaines alone. The shooter on the driver’s side ran east
along Curtis Avenue, and the shooter on the passenger side ran
west. Gaines subsequently died from the injuries sustained in
the shooting. An autopsy revealed that death was caused by a
gunshot wound to the back.
After Omaha police officers arrived on the scene, they
broadcast a description of one shooter as an African-American
male with long braids, a white shirt, and jean shorts. Police
also broadcast a description of a “possible suspect” white
vehicle that did not have hubcaps.
As Officer Joel Strominger headed toward the location of
the shooting, he saw a vehicle that matched the description
of the white vehicle. Near the passenger side, he observed an
African-American male who was wearing a white T-shirt and
dark-colored shorts and had something brown in his hand.
Strominger radioed a description of the person to other offi-
cers. At trial, Strominger identified Taylor as the person he had
seen near the white vehicle.
When the white vehicle went west, and Taylor went east,
Strominger followed the vehicle. Once he learned that the
vehicle was reported stolen, he pulled it over on 42d Street
near Curtis Avenue. Strominger held the lone occupant, Joshua
Kercheval, at gunpoint until additional officers arrived to assist
with an arrest.
Officer Jarvis Duncan and another officer responded to
Strominger’s description of the person seen near the white
vehicle, and while traveling in the direction Strominger indi-
cated the individual had gone, they saw an African-American
male matching the description. As they stopped, the man, later
identified as Taylor, started running. The officers caught him
at Kercheval’s house and placed him in handcuffs. Before he
was apprehended, Taylor threw a brown shirt under a tree in
the front yard of Kercheval’s house. At trial, Bryson identified
the shirt as the shirt worn by the shooter on the driver’s side of
Gaines’ vehicle.

390 	287 NEBRASKA REPORTS
Duncan placed Taylor in the back seat of a police cruiser
and took him to Strominger, who was five or six blocks away.
Strominger immediately identified Taylor as the person he
had seen by the white vehicle. No more than 10 minutes had
elapsed since Strominger had seen Taylor next to the vehicle.
Taylor was subsequently charged with first degree murder
and use of a deadly weapon to commit a felony. Taylor’s first
trial resulted in a reversal on appeal to this court for the giv-
ing of an erroneous jury instruction. The cause was remanded
for retrial. See State v. Taylor, 282 Neb. 297, 803 N.W.2d
746 (2011).
At Taylor’s second trial, the State called several witnesses
who, on the day of the shooting, had observed Taylor or
an individual matching his description near Curtis Avenue.
Alisha Hobson and Frances Fortenberry testified that right
after they heard gunshots, they saw a man matching Taylor’s
description running along Curtis Avenue. Trisha Lade saw
Taylor running along Vernon Avenue, which is near Curtis
Avenue. She saw Taylor kneel behind some bushes and
heard him yell into his cell phone, “[C]ome get me.” Joseph
Copeland testified that just after he heard gunfire, he saw an
African-American male running along Redick Avenue, which
is near Curtis Avenue.
The State also adduced evidence that more than 2 months
after the shooting, Copeland’s son found a gun hidden in the
bushes or trees of a nearby school. The weapon was a semi-
automatic 9-mm pistol. Three bullet casings recovered from the
scene of the shooting were matched to the pistol.
Kercheval testified that on the day of the shooting, Taylor
and Joshua Nolan came to his house; asked if he wanted to ride
around in their vehicle, which was white; and then requested
that he drive. The three drove around in the vehicle for about
1 hour before stopping at a convenience store from approxi-
mately 1:21 to 1:34 p.m. After they left the convenience store,
Kercheval let Taylor out of the vehicle at 44th Street and
Curtis Avenue so that Taylor could obtain some marijuana and
Kercheval parked the vehicle on 45th Street. About 5 minutes
later, Nolan exited the vehicle and headed down 45th Street
toward Curtis Avenue.

STATE v. TAYLOR 	391
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Kercheval testified that about 2 minutes after Nolan left the
vehicle, Kercheval heard approximately 10 gunshots and saw
Nolan running toward the vehicle from the direction of Curtis
Avenue. Kercheval explained that Nolan got into the vehicle,
asked Kercheval to “drive off,” and then got out of the vehicle
at a school near 40th Street and Bauman Avenue. Shortly
thereafter, Kercheval was pulled over by a police officer and
arrested for driving a stolen vehicle.
The jury convicted Taylor of both charges. The district court
sentenced him to life imprisonment for first degree murder
and 10 years’ to 10 years’ imprisonment for use of a deadly
weapon to commit a felony, to be served consecutively to the
life sentence.
Taylor timely appeals. This court is required to hear appeals
in cases in which a sentence of death or life imprisonment is
imposed. See Neb. Rev. Stat. § 24-1106(1) (Reissue 2008).
IV. ASSIGNMENTS OF ERROR
Taylor assigns, consolidated and restated, that the district
court erred in (1) allowing the State to present inadmissible
hearsay regarding the location of the gun and (2) allowing
Strominger to identify Taylor in court. Taylor also assigns that
his sentence of life imprisonment was unconstitutional.
V. ANALYSIS
1. testimony regarding loCation
of 9-mm pistol
(a) Hearsay
At trial, Copeland testified about the location of the gun
found by his son a few months after the shooting. Copeland
testified:
[Prosecution:] Drawing your attention to November 27
of 2009, did you have the occasion to call police officers
out to your residence at about 12:30 that afternoon?
[Copeland:] Yes.
Q. And could you tell us what you called officers
out for?
A. My son and a neighbor boy were playing down at
the school flying an airplane, and in the process they’d

392 	287 NEBRASKA REPORTS
lost the airplane in the trees. And while looking for it,
they found a gun in the trees, bushes.
Q. And did your son tell you about this gun or did he
show you where the gun was?
A. He brought the gun to me.
Q. And did your son show you where he recovered the
gun from?
A. Yes.
Q. And with regards to Exhibit 201, can you show us
where your son told you — showed you he recovered the
gun from?
[Defense counsel]: I’m going to object. It’s hearsay.
[Prosecution]: I can restate.
THE COURT: Sustained.
Q. (By [prosecution]) Did your son physically take you
to the location?
A. Yes.
Q. And so you physically went to that location?
A. Yes.
Q. And can you show us on Exhibit 201 what location
you went to?
[Defense counsel]: Same thing, it’s hearsay. [He is]
trying to testify as to where the gun was located based
on the testimony of someone who didn’t locate the gun.
So it’s hearsay. The only way he knows where it was
is hearsay, is what I’m saying, from the statement from
the son.
THE COURT: Overruled. You may answer.
[Copeland]: On the corner of 40th and Mary. Right as
you come around that corner, that house there, there’s
some bushes right there. Just right off the street. About
six foot [sic] off the street.
Taylor alleges that Copeland’s testimony where his son
found the gun was inadmissible hearsay. The State concedes
that Copeland’s testimony regarding the exact location of the
gun was inadmissible hearsay.
Hearsay is a statement, other than one made by the declar-
ant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted. Neb. Evid. R. 801(3),

STATE v. TAYLOR 	393
Cite as 287 Neb. 386
Neb. Rev. Stat. § 27-801(3) (Reissue 2008). Under Neb. Evid.
R. 802, Neb. Rev. Stat. § 27-802 (Reissue 2008), hearsay is
not admissible unless a specific exception to the hearsay rule
applies. The State does not argue that Copeland’s statement fell
within any of these exceptions.
Copeland’s statement concerning the exact location of the
gun should not have been admitted, because it was hearsay.
His testimony that the gun was found at the corner of 40th
and Mary Streets was based solely on the out-of-court state-
ment of his son. Copeland did not personally find the gun.
Copeland knew the precise location in which the gun was
found only because his son communicated that information
to Copeland.
(b) Harmless Error
The State maintains that admission of Copeland’s testimony
that the gun was found at the corner of 40th and Mary Streets
was harmless error. Taylor claims the location of the gun was
an essential part of the State’s theory of the case and, therefore,
its admission was not harmless error.
[4] Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty ver-
dict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. State v. Kitt, 284 Neb. 611, 823
N.W.2d 175 (2012).
[5] We conclude that the admission of Copeland’s testi-
mony concerning the precise location of the gun was harmless
error. The evidence was cumulative, and there was a substan-
tial amount of other evidence that established Taylor’s guilt.
Erroneous admission of evidence is harmless error and does
not require reversal if the evidence is cumulative and other
relevant evidence, properly admitted, supports the finding by
the trier of fact. State v. Robinson, 271 Neb. 698, 715 N.W.2d
531 (2006).
Taylor objected when Copeland was asked to identify the
exact location where the gun was found. When the objec-
tion was overruled, Copeland stated that the gun was found

394 	287 NEBRASKA REPORTS
in the bushes at 40th and Mary Streets about 6 feet from the
street. But Copeland had already testified without objection
that his son and a neighbor found the gun while looking for
their lost airplane in the trees at the school. He also testified
without objection that on the day of the shooting, there was a
lot of traffic around the school, indicating that the school was
close to his home. Thus, evidence admitted without objection
showed the gun was found near Copeland’s home.
Taylor claims the admission of the hearsay was not harm-
less and urges this court to consider the State’s closing argu-
ment, because it made several references to the 9-mm pistol.
The State’s closing argument referred to “the gun that [Taylor]
ditched later on as he ran away from the murder.” It also
referred to the exact location of the gun. However, the fact that
the gun was located precisely at 40th and Mary Streets was not
vital to the State’s case. The important fact was that the gun
was found near Copeland’s home, in the area where Copeland
had seen someone running the day of the shooting. Evidence of
that fact was admitted without objection.
Because evidence of the general location of the gun was
received without objection, the subsequent hearsay was cumu-
lative. Additionally, there was a substantial amount of other
evidence that established Taylor’s guilt.
Hobson, Fortenberry, and Lade testified that they saw
someone matching Taylor’s description in the area at the
time of the shooting. Lade identified Taylor at trial. She
also testified that on the day of the shooting, Taylor walked
immediately in front of her as she pulled into her driveway.
She heard him talking on his cell phone saying, “[W]here you
at? Where you at? Come get me. I’m on 42nd.” She testi-
fied that he then hid behind some bushes and that she heard
Taylor say, “[C]ome get me” into his cell phone. Cell phone
records indicated multiple calls between Taylor’s telephone
number and Nolan’s telephone number around the time of the
shooting. Convenience store surveillance video footage also
placed Taylor with Nolan and Kercheval before the shoot-
ing occurred.
Taylor was apprehended shortly after the shooting, just sev-
eral blocks away. At that time, Strominger identified Taylor

STATE v. TAYLOR 	395
Cite as 287 Neb. 386
as the individual he saw near the white vehicle Kercheval
was driving, which vehicle fit the description of the vehicle
suspected to be involved in the shooting. Taylor’s finger-
prints were also found on a cup in the vehicle Kercheval
was driving.
Shortly before being apprehended by police, Taylor dis-
carded a brown shirt. Bryson, the eyewitness to the shooting,
identified the shirt discarded by Taylor as the shirt worn by
the shooter. Material found on Taylor’s hands was identified as
possibly coming from a firearm.
Because evidence of the general location of the gun was
received without objection and the subsequent hearsay was
cumulative and because there was a substantial amount of
other evidence that established Taylor’s guilt, the guilty verdict
against Taylor was surely unattributable to the error in admit-
ting Copeland’s hearsay testimony that the gun was found at
40th and Mary Streets. Admitting the evidence of the gun’s
exact location was harmless error.
2. strominger’s identifiCation
Over Taylor’s objection, the district court allowed Strominger
to identify Taylor as the person he had seen next to the vehicle
suspected to be involved in the shooting. Taylor claims the
court erred in permitting this identification, because it was
tainted by the circumstances surrounding Strominger’s previ-
ous identification of Taylor. He contends that Strominger’s
identification on the day of the shooting was overly sugges-
tive, because Taylor was taken to Strominger in handcuffs and
because Strominger was told that Taylor had been arrested
nearby and had discarded a brown shirt before his arrest. He
claims Strominger’s identification also was undermined by
Kercheval’s testimony that Taylor left the white vehicle before
the shooting and that Kercheval did not see Taylor again until
long after the shooting.
[6] Strominger’s identification of Taylor was the result of
a showup. A showup is usually defined as a one-on-one con-
frontation where the witness views only the suspect, and it is
commonly conducted at the scene of the crime, shortly after
the arrest or detention of a suspect and while the incident is

396 	287 NEBRASKA REPORTS
still fresh in the witness’ mind. State v. Garcia, 235 Neb. 53,
453 N.W.2d 469 (1990).
[7] An identification procedure is constitutionally invalid
only when it is so unnecessarily suggestive and conducive to
an irreparably mistaken identification that a defendant is denied
due process of law. State v. Smith, 269 Neb. 773, 696 N.W.2d
871 (2005). See, also, Perry v. New Hampshire, 565 U.S. 228,
132 S. Ct. 716, 181 L. Ed. 2d 694 (2012). The admission of
evidence of a showup does not, by itself, violate due process.
See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d
401 (1972). A determination of impermissible suggestiveness is
based on the totality of the circumstances. See id.
The U.S. Supreme Court has stated a two-part test for
determining the admissibility of an out-of-court identification:
“First, the trial court must decide whether the police used an
unnecessarily suggestive identification procedure. . . . If they
did, the court must next consider whether the improper iden-
tification procedure so tainted the resulting identification as
to render it unreliable and therefore inadmissible.” Perry, 565
U.S. at 235.
[8] Reliability is the linchpin in determining the admissibil-
ity of identification testimony. State v. Faust, 269 Neb. 749,
696 N.W.2d 420 (2005). We have stated:
The factors to be considered [in determining the reli-
ability of a witness’ identification] include (1) the oppor-
tunity of the witness to view the alleged criminal at the
time of the crime, (2) the witness’ degree of attention,
(3) the accuracy of his or her prior description of the
criminal, (4) the level of certainty demonstrated at the
confrontation, and (5) the time between the crime and the
confrontation. . . . Against these factors is to be weighed
the corrupting influence of the suggestive identifica-
tion itself.
Id. at 757, 696 N.W.2d at 427 (citations omitted).
We previously considered the constitutionality of a one-
on-one identification in State v. Wickline, 232 Neb. 329, 440
N.W.2d 249 (1989), disapproved on other grounds, State v.
Sanders, 235 Neb. 183, 455 N.W.2d 108 (1990). In Wickline,
232 Neb. at 335, 440 N.W.2d at 253, we concluded that the

STATE v. TAYLOR 	397
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identification of a defendant was not unduly suggestive where
(1) the witness observed the defendant standing near a stolen
vehicle and, a few minutes later, hiding behind a utility pole
and (2) about 4 hours after initially observing the defendant,
the same witness identified the defendant “without displaying
or suggesting any uncertainty in her identification.”
Strominger’s identification of Taylor was made under cir-
cumstances comparable to those in Wickline, and we conclude
that the identification of Taylor was not unduly suggestive or
conducive to a mistaken identification. On the day of the shoot-
ing, Strominger observed a person outside a vehicle that may
have been involved in the shooting. Within a matter of minutes,
other police officers brought Taylor to Strominger’s location.
Strominger immediately identified Taylor as the person he had
previously observed. Under these circumstances, Taylor was
not denied due process of law. Strominger’s identification was
not unnecessarily suggestive or conducive to an irreparably
mistaken identification.
Taylor emphasizes that he was handcuffed in the back of a
police cruiser and that the officers who detained Taylor told
Strominger that Taylor might be the person who ran from
the white vehicle. But these facts do not render Strominger’s
identification unduly suggestive. Strominger was a police offi-
cer. His duties required him to identify suspects. As he was
responding to a shooting, Strominger saw Taylor standing
next to a vehicle that may have been involved in the shoot-
ing. Because Strominger thought Taylor also might have been
involved in the shooting, Strominger provided a description
of Taylor to other officers, who located Taylor based on that
description. Then, during the initial minutes of the inves-
tigation, Strominger identified Taylor as the person he had
observed near the suspect vehicle. This procedure was not
unduly suggestive.
3. sentenCe
Taylor was born in December 1991, and therefore, when
the shooting occurred on September 19, 2009, he was under
the age of 18 years. Because of his age, Taylor asserts that his
sentence of life imprisonment was unconstitutional.

398 	287 NEBRASKA REPORTS
In Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012), the U.S. Supreme Court concluded that a
judge or jury must have the opportunity to consider mitigating
circumstances before imposing the harshest possible penalties
on juveniles. Accordingly, the Court held that mandatory sen-
tences of life without parole for juveniles violated the Eighth
Amendment’s ban on cruel and unusual punishment.
Miller applies to cases that were on direct review when it
was decided. See, State v. Ramirez, ante p. 356, 842 N.W.2d
694 (2014); State v. Castaneda, ante p. 289, 842 N.W.2d
740 (2014); Whiteside v. State, 2013 Ark. 176, 426 S.W.3d
917 (2013), cert. denied ___ U.S. ___, 134 S. Ct. 311, 187
L. Ed. 2d 220; People v. Eliason, 300 Mich. App. 293, 833
N.W.2d 357 (2013); Hill v. Snyder, No. 10-14568, 2013 WL
364198 (E.D. Mich. Jan. 30, 2013) (unpublished opinion).
Taylor was sentenced in May 2012, and he appealed. Miller
was decided that June. Because Miller was decided while
Taylor’s appeal was pending, its rule applies to him. See
Castaneda, supra.
At the time Taylor was sentenced, Nebraska’s statutes pro-
vided that a juvenile convicted of first degree murder was
subject to mandatory life imprisonment. See Neb. Rev. Stat.
§§ 28-105 (Cum. Supp. 2012) and 28-105.01 (Reissue 2008).
The statutes did not expressly contain the qualifier “with-
out parole.” Nevertheless, because it provided no “meaning-
ful opportunity” to obtain release, Nebraska’s sentence of
life imprisonment was effectively life imprisonment “without
parole” under the rationale of Miller and Graham v. Florida,
560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). See
Castaneda, ante at 314, 842 N.W.2d at 758.
We conclude that under Miller, Taylor’s sentence of life
imprisonment was unconstitutional. Because Taylor’s life sen-
tence was unconstitutional, it must be vacated and Taylor must
be resentenced.
Taylor’s resentencing is controlled by our recent decision in
Castaneda, supra. In that case, we concluded that Neb. Rev.
Stat. § 28-105.02 (Supp. 2013) applied to the resentencing of
a defendant who was sentenced to life imprisonment without
the possibility of parole for crimes he committed when he was

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Cite as 287 Neb. 386
under the age of 18 years. Section § 28-105.02(1) provides that
“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.” When sentencing an individual
under this statute, certain mitigating factors must be consid-
ered. See § 28-105.02(2). Section 28-105.02 was enacted after
Castaneda and Taylor were sentenced for Class IA felonies but
while their individual appeals were pending. See 2013 Neb.
Laws, L.B. 44, § 2.
[9] The defendant in Castaneda argued, as does Taylor,
that § 28-105.02 did not apply to him and that he should be
sentenced for second degree murder. We rejected the argu-
ment of the defendant in Castaneda that § 28-105.02 increased
the punishment available for his crime and concluded instead
that the newly enacted statute did not violate ex post facto
principles. We also determined that § 28-105.02 did not affect
the elements of the offense or the facts necessary to establish
guilt. “‘[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.’” State v. Castaneda, ante p. 289, 319, 842 N.W.2d
740, 762 (2014) (quoting State v. Randolph, 186 Neb. 297, 183
N.W.2d 225 (1971)). We vacated Castaneda’s life sentences
and remanded the cause for resentencing under the procedures
set forth in § 28-105.02.
Taylor’s 	arguments 	are 	identical 	to 	those 	which 	we
rejected in Castaneda. Therefore, for the reasons explained
in Castaneda, we conclude that § 28-105.02 applies to Taylor
upon 	resentencing. We 	vacate Taylor’s 	life 	sentence 	and
remand the cause for resentencing under the procedures set
forth in § 28-105.02.
VI. CONCLUSION
Taylor’s assignments of error regarding alleged trial error
are without merit, and we affirm his convictions. However,
Taylor’s sentence of life imprisonment was unconstitutional

400 	287 NEBRASKA REPORTS
and is therefore vacated. We remand the cause for resen-
tencing by the district court as to Taylor’s conviction for a
Class IA felony. Taylor’s sentence for use of a deadly weapon
to commit a felony is affirmed and is to be consecutive
to the sentence imposed by the district court on the mur-
der conviction.
affirmed in part, sentenCe vaCated in part,
and Cause remanded for resentenCing.
C onnolly and mCC ormaCk, JJ., participating on briefs.
Jeanette Carney, appellee, v.
JaCquelyn miller, appellant.
842 N.W.2d 782
Filed February 14, 2014. 	No. S-12-1138.
1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.
2. Summary Judgment: Immunity: Appeal and Error. The district court’s
denial of summary judgment on grounds of qualified immunity is subject to de
novo review.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdic-
tion over the matter before it, irrespective of whether the issue is raised by
the parties.
4. Final Orders: Appeal and Error. Generally, only final orders are appealable.
5. ____: ____. Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the three types
of final orders that an appellate court may review are (1) an order that affects a
substantial right and that determines the action and prevents a judgment, (2) an
order that affects a substantial right made during a special proceeding, and (3) an
order that affects a substantial right made on summary application in an action
after a judgment is rendered.
6. Summary Judgment: Final Orders. An order denying summary judgment is not
a final order under Neb. Rev. Stat. § 25-1902 (Reissue 2008).
7. Final Orders. The collateral order doctrine is an exception to the final order rule.
8. Final Orders: Immunity: Appeal and Error. Under the collateral order doc-
trine, the denial of a claim of qualified immunity is appealable, notwithstanding
the absence of a final judgment, if the denial of immunity turns on a question
of law.
9. ____: ____: ____. The denial of a claim of qualified immunity is immediately
reviewable under the collateral order doctrine where the issues presented are
purely questions of law.