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www.nebraska.gov/apps-courts-epub/
03/08/2024 09:15 AM CST
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
State of Nebraska, appellee, v.
DeShawn L. Gleaton, Jr., appellant.
___ N.W.3d ___
Filed March 8, 2024. No. S-22-560.
1. Expert Witnesses: Appeal and Error. The standard for reviewing the
admissibility of expert testimony is abuse of discretion.
2. Judgments: Expert Witnesses: Words and Phrases. An abuse of discretion in the trial court’s determination under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786,
125 L. Ed. 2d 469
(1993), and Schafersman v. Agland Coop, 262 Neb. 215,
631 N.W.2d
862 (2001), occurs when a trial court’s decision is based upon reasons
that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
3. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786,
125 L. Ed. 2d 469
(1993), and Schafersman v. Agland Coop, 262 Neb. 215,
631 N.W.2d
862 (2001), framework, the trial court acts as a gatekeeper to ensure the
evidentiary relevance and reliability of an expert’s opinion.
4. Trial: Expert Witnesses: Intent. The purpose of this gatekeeping
function is to ensure that the courtroom door remains closed to “junk
science” that might unduly influence the jury, while admitting reliable
expert testimony that will assist the trier of fact.
5. Trial: Expert Witnesses. A trial court can consider several nonexclusive factors in determining the reliability of an expert’s opinion: (1)
whether a theory or technique can be (and has been) tested; (2) whether
it has been subjected to peer review and publication; (3) whether, in
respect to a particular technique, there is a high known or potential
rate of error; (4) whether there are standards controlling the technique’s
operation; and (5) whether the theory or technique enjoys general
acceptance within a relevant scientific community.
6. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
various contexts because the conduct will or may undermine a defend
ant’s right to a fair trial.
7. Trial: Prosecuting Attorneys: Juries. Prosecutors are charged with the
duty to conduct criminal trials in such a manner that the accused may
have a fair and impartial trial, and prosecutors are not to inflame the
prejudices or excite the passions of the jury against the accused.
8. ____: ____: ____. A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.
9. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial
misconduct in closing arguments, a court first determines whether the
prosecutor’s remarks were improper. It is then necessary to determine
the extent to which the improper remarks had a prejudicial effect on the
defendant’s right to a fair trial.
10. Sentences: Evidence: Appeal and Error. Absent an abuse of discretion, an appellate court will not disturb a trial court’s rulings as to the
source and type of evidence and information that may be used in determining the kind and extent of punishment to be imposed.
11. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.
12. Homicide: Sentences. A defendant is not entitled to credit for time
served against a life sentence; however, when the defendant receives a
sentence consecutive to the life sentence that has maximum and minimum terms, the defendant is entitled to receive credit for time served
against the consecutive sentence.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed as modified.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
Michael T. Hilgers, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
DeShawn L. Gleaton, Jr., appeals after he was convicted
of and sentenced for first degree murder, use of a firearm to
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
commit a felony, possession of a firearm by a prohibited person, and witness tampering. At Gleaton’s jury trial, several
forms of evidence implicated Gleaton in the shooting death of
Hailey Christiansen. On appeal, Gleaton argues that the district
court erred in admitting expert testimony regarding cell phone
location data, in overruling defense objections to statements
of the prosecutor during closing argument, and in declining
to strike certain victim impact material from the presentence
investigation report (PSR). Additionally, Gleaton argues the
district court committed judicial misconduct during sentencing.
We find no merit to Gleaton’s contentions, but do find plain
error in sentencing. Accordingly, we affirm Gleaton’s convictions and affirm his sentences as modified.
I. BACKGROUND
On July 24, 2020, Christiansen died from a single gunshot
wound to the chest. She was shot in her home in Norfolk,
Nebraska. Gleaton and Christiansen had previously been in a
dating relationship, and, earlier that month, Gleaton had been
charged with third degree domestic assault and first degree
criminal trespass in connection with an alleged altercation with
Christiansen. At the time Christiansen was shot, Gleaton was
free on bond.
Evidence at trial established that Gleaton called
Christiansen’s cell phone several times on the evening of
July 23, 2020, and in the early morning hours of July 24.
Christiansen’s friends answered some of the calls, and Gleaton
then demanded to speak to Christiansen. On the morning of
July 24, Christiansen’s next-door neighbor saw Gleaton enter
Christiansen’s residence. At approximately 6:45 a.m., other
neighbors heard a gunshot and saw Christiansen exit her front
door, screaming. Neighbors, law enforcement, and paramedics then assisted Christiansen as she moved in and out of
consciousness. When paramedics asked Christiansen who shot
her, she said she did not know. At that time, Christiansen was
repeatedly telling paramedics to tell her son that she loved
him. Christiansen died at a hospital later that day.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
At trial, the State offered two self-recorded Snapchat videos
of Gleaton, created in a social media application shortly after
the time of the shooting. In one of the videos, Gleaton is heard
saying, “Yeah, I shot the bitch,” and is also seen holding a
black semiautomatic pistol. In the other video, Gleaton said,
“I’m sorry but it had to be done. But they probably kill me.”
After Gleaton was arrested, he was interviewed by law
enforcement. During the interview, Gleaton admitted that he
was with Christiansen on the morning of the shooting and that
he shot Christiansen one time. According to the interviewer,
Gleaton explained that he was upset because Christiansen said
she was going to send him back to jail and that he felt he had
“no choice” but to shoot her.
A jury convicted Gleaton on all counts. Following the convictions, the district court sentenced Gleaton to life imprisonment for first degree murder, 25 to 30 years’ imprisonment for
possession of a firearm by a prohibited person, 40 to 50 years’
imprisonment for use of a firearm to commit a felony, and to
1 to 2 years’ imprisonment for witness tampering. The district
court granted Gleaton 413 days’ credit for time served on his
life sentence. Gleaton timely appealed.
Additional procedural history and evidence, when relevant,
will be discussed in the analysis section below.
II. ASSIGNMENTS OF ERROR
Gleaton assigns five errors on appeal. We have consolidated and paraphrased those errors as follows: The district
court erred in (1) admitting expert testimony that relied on
cell phone location data, (2) overruling defense objections to
statements of the prosecutor made during closing argument,
(3) declining to strike challenged victim impact material from
the PSR, and (4) committing “[j]udicial [m]isconduct” during
sentencing.
Additionally, the State asserts that the district court committed plain error when it applied 413 days’ credit for time served
to Gleaton’s life sentence.
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
III. ANALYSIS
1. Expert Testimony
Gleaton assigns that the district court erred in receiving
expert testimony of Robert Hurley concerning the locations
of Gleaton’s and Christiansen’s cell phones. Hurley, a criminal investigator with the Lincoln Police Department, relied
on cell phone location data known as round-trip time data
(RTT data) to provide opinions about the location and movement of Gleaton’s and Christiansen’s phones on the day of
Christiansen’s death.
(a) Additional Background
Prior to trial, Gleaton filed a motion in limine that challenged the admissibility of expert testimony from the State
based on RTT data. Gleaton argued that any such testimony
should be excluded as unreliable under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786,
125 L.
Ed. 2d 469 (1993), and Schafersman v. Agland Coop,
262 Neb.
215,
631 N.W.2d 862 (2001) (Daubert/Schafersman).
The district court held a pretrial hearing on Gleaton’s
motion at which Hurley testified. Hurley testified that he had
been employed by the Lincoln Police Department for 31 years
and had worked as a criminal investigator since 2006. Hurley
testified that he also served in the U.S. Army and worked as a
communications officer for several years, specializing in setting up cellular networks in the field and providing oversight
for radio and satellite communications. Hurley testified that
he started using his military training and experience to analyze cell phone records when he began his work as a criminal investigator.
Hurley testified that Verizon was the cellular service provider for the phones belonging to Gleaton and Christiansen.
Hurley testified that RTT data is one type of data Verizon
generates. RTT data includes the amount of time it takes for
a cell phone signal to travel between the cell phone and the
tower to which it connects, and back again. Verizon claims to
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316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
use RTT data to track customers’ data usage and to improve
its network.
Hurley testified to how he uses RTT data in his work as
a criminal investigator. He explained that cell phones send
signals to towers, which are generally triangular in shape and
divided into three 120-degree sectors. When a cell phone connects to a tower, cellular data shows the time at which that
connection was made and the tower and sector to which the
phone connected. In addition to this information, Verizon’s
RTT data includes the amount of time it takes for the cellular
signal to travel to and from the tower, expressed in terms of
the distance between the phone and the tower. Based on the
distance the RTT data indicates a phone is from a tower at
a particular time and the sector to which it connects, Hurley
believes he can determine that a phone was somewhere along
a 120-degree arc corresponding to that sector at the time at
which it connected.
The State offered evidence of prior instances in which
Hurley’s methodology had been applied. Hurley first applied
the methodology when investigating the murder of Sydney
Loofe in 2017. See State v. Trail,
312 Neb. 843,
981 N.W.2d
269 (2022). Loofe had disappeared, and Hurley used RTT data
to search for her remains. Cell phone location data for phones
of individuals suspected responsible for Loofe’s disappearance indicated that the suspects traveled west from Wilber,
Nebraska, to a rural area in Clay County, Nebraska, the day
after Loofe was last seen. Hurley used RTT data from the
suspects’ phones to plot out the locations of their phones during that day. The RTT data indicated that one of the phones
remained 3.83 miles away from a tower for an extended
period of time on that day; the suspects’ residence was 3.83
miles from that tower. Additionally, the RTT data indicated
that there were times when the suspects’ phones were stationary during their trip west. Hurley plotted where the RTT data
showed those phones were located while stationary and suggested that law enforcement search along the road in those
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316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
areas. Loofe’s remains were discovered in almost all of those
areas. Hurley testified that at one location, a body part was
found within 20 feet of where the RTT data indicated the
phones were stationary.
The State introduced evidence that Hurley also used RTT
data to investigate the suspects’ movements on the day Loofe
was last seen. RTT data showed that on that evening, the suspects’ phones were in an area that included a home improvement store at a particular time. Surveillance video showed the
suspects in that store at that time. RTT data also showed that
the suspects were in an area that included another, similar,
store at a particular time. Surveillance video showed the suspects in the latter store at that time.
Hurley testified that, in addition to the Loofe investigation,
he had used RTT data in an investigation of a homicide in
Lincoln, Nebraska. Hurley testified that he plotted an arc corresponding to where the RTT data showed a phone belonging
to a suspect was located at a particular time and that the arc
“went right across the house where the homicide occurred.”
Hurley explained that at the same time the RTT data showed
the phone was within an arc that included the house, video
from a doorbell camera at the house showed the suspect holding the phone.
The State also introduced evidence at the pretrial hearing
that Hurley taught his methodology to Cory Townsend, one
of the investigators he worked with during the Loofe investigation. Townsend then used Hurley’s methodology in an
investigation of another case, in Cuming County, Nebraska.
The district court received a transcript of testimony Hurley
and Townsend provided in that case regarding RTT data.
Townsend testified that in that case, RTT data showed that
suspects were in areas that included particular gas stations at
two different times, and video surveillance footage confirmed
that the suspects were in the gas stations at those times. He
also testified that RTT data showed that the suspects were in
an area that included a particular intersection for an extended
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
period of time, and police records of a traffic stop and in-car
camera footage from a police car confirmed that the suspects
were stopped at that intersection during that time.
Hurley testified that in this case, he analyzed RTT data
for a phone belonging to Gleaton and a phone belonging
to Christiansen. Hurley testified that in his analysis of RTT
data, he utilized software developed by Pen-Link, Ltd. Hurley
testified that he had also used Pen-Link software in the
Loofe investigation, but to map only tower and sector data,
not RTT data. According to Hurley, at the time of the Loofe
investigation, the Pen-Link software did not have the ability
to map RTT data. In that case, Hurley manually mapped the
120-degree arcs indicated by the RTT data. Hurley testified
that, following the Loofe investigation, he helped Pen-Link
develop its software so that the software could also map
RTT data.
Hurley explained that this case was the first investigation
where he utilized Pen-Link software to map RTT data. Hurley
entered the Verizon data into the Pen-Link software, and the
software then organized and overlaid the data onto a map.
Hurley stated that Pen-Link’s mapping software is comparable
to Google Maps. Hurley was asked if he had ever inserted
phone data into Pen-Link software and found that the Pen-Link software analysis was wrong. Hurley stated that he has
“not had an issue with Pen-Link [software] interpreting the
data correctly.” Hurley further explained that if the RTT data
is correctly entered into the Pen-Link software, it will “map
out the exact same thing [he] could do by hand.”
Hurley testified that the RTT data for Gleaton’s phone
showed that in the early morning hours of July 24, 2020, the
phone traveled from Sioux City, Iowa, to Norfolk, Nebraska;
that the phone remained in and around Norfolk for several hours; and that at about 6:30 a.m. on July 24, it was
within an arc that included Christiansen’s home. According
to Hurley, RTT data indicated that Gleaton’s phone traveled
back to Sioux City later that day, traversing through Jackson,
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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
STATE V. GLEATON
Cite as 316 Neb. 114
Nebraska, on the way. Hurley testified that RTT data from
Christiansen’s phone indicated that her phone was in an area
that included a particular bar in Norfolk until approximately
2 a.m., that her phone was in an area that included the house
of one of her friends until approximately 4 a.m., and that her
phone was in a location that included her own house until just
after 4:30 a.m., which was the last activity on her phone.
Hurley acknowledged that he could not determine who was
using a phone at a particular time or whether the phone was
at a specific location or address at a specific time. Gleaton
argued that because of those limitations, Hurley’s testimony, if
allowed, should be appropriately limited.
In a written order following the Daubert/Schafersman hearing, the district court overruled Gleaton’s motion in limine in
part. In its order, the district court determined that Hurley’s
methodology was “repeatable and reliable.” The district court
referred to evidence that Hurley’s methodology had been used
and produced reliable results in other criminal investigations.
Although the district court explained that it would generally permit Hurley to testify, it agreed to limit his testimony as requested by Gleaton. The district court ordered that
Hurley would “not be allowed to testify that a specific person,
such as the owner of a phone, was traveling on a route or
located in a certain place.” Further, the district court ordered
that Hurley would not be allowed to testify that a cell phone
“was at a specific address or location,” but could testify that
“a certain address or location is within an area or arc of convergence where the cell phone communicated with the cell
phone tower.”
At trial, the State called a Verizon records analyst to provide foundation for the RTT data. She testified that Verizon
provided RTT data to law enforcement for phones associated
with Gleaton and Christiansen. On cross-examination, she
confirmed that RTT data shows the distance between a phone
and the tower to which it is connecting. She added, however,
that Verizon “can’t confirm that it’s exact.” Defense counsel
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STATE V. GLEATON
Cite as 316 Neb. 114
then asked “how close or how precise” the RTT data is. The
records analyst responded, “Within five or ten miles maybe,
roughly.” Neither defense counsel nor counsel for the State
probed the issue further.
After the testimony of the Verizon records analyst, the State
called Hurley to testify. Hurley provided testimony as to what
the RTT data showed regarding the movements of Gleaton’s
and Christiansen’s phones consistent with his testimony at
the pretrial hearing. On several occasions, the district court
sustained defense objections to testimony of Hurley that contravened the limitations the district court placed on Hurley’s
testimony in response to Gleaton’s motion in limine. On
cross-examination, Hurley confirmed that there is no way that
the RTT data allows him to determine whether a particular
person has a phone at a particular time. He also confirmed
that his opinions in this case were not that Gleaton’s and
Christiansen’s phones were in specific locations, but that the
phones were located somewhere along arcs indicated by the
RTT data.
Other evidence at trial was consistent with Hurley’s opinions regarding the location of Gleaton’s and Christiansen’s
phones. As noted above, Christiansen’s next-door neighbor
testified that she saw Gleaton enter Christiansen’s residence
on the morning Christiansen was shot. In addition, several of Christiansen’s friends testified that earlier that day,
Christiansen was at the same bar identified by Hurley until
approximately 2 a.m., and that she then went to the house
of the friend Hurley identified until about 4 a.m., before
returning home. Evidence at trial was also introduced that
Gleaton was arrested in Sioux City the day after Christiansen
was killed and that a vehicle he had been driving for several
months was discovered in Jackson.
(b) Standard of Review
[1,2] The standard for reviewing the admissibility of expert
testimony is abuse of discretion. State v. Simmer, 304 Neb.
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STATE V. GLEATON
Cite as 316 Neb. 114
369,
935 N.W.2d 167 (2019). An abuse of discretion in the
trial court’s Daubert/Schafersman determination occurs when
a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice
or conscience, reason, and evidence. Simmer, supra.
(c) Analysis
Gleaton argues that the district court abused its discretion
when it allowed Hurley to offer expert opinion testimony based
on his interpretation of the RTT data. Because the district court
and the parties treated Hurley’s testimony as subject to the
rules governing the admission of expert opinion testimony, we
will do the same for the purposes of this appeal. Before we
address Gleaton’s arguments, we briefly review the governing
legal principles.
The Nebraska Evidence Rules provide: “If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise.” Neb. Evid. R. 702, Neb. Rev. Stat.
§ 27-702 (Reissue 2016). The admission of expert testimony
under rule 702 is governed by a legal framework initially
set forth by the U.S. Supreme Court in Daubert v. Merrell
Dow Pharmaceuticals, Inc.,
509 U.S. 579,
113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and later adopted by this court
in Schafersman v. Agland Coop,
262 Neb. 215,
631 N.W.2d
862 (2001).
[3,4] Under the Daubert/Schafersman framework, the trial
court acts as a gatekeeper to ensure the evidentiary relevance
and reliability of an expert’s opinion. Simmer, supra. The purpose of this gatekeeping function is to ensure that the courtroom door remains closed to “junk science” that might unduly
influence the jury, while admitting reliable expert testimony
that will assist the trier of fact. Id. The Daubert/Schafersman
standards require proof of the scientific validity of principles
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STATE V. GLEATON
Cite as 316 Neb. 114
and methodology utilized by an expert in arriving at the opinion. Simmer, supra.
[5] A trial court can consider several nonexclusive factors in determining the reliability of an expert’s opinion: (1)
whether a theory or technique can be (and has been) tested;
(2) whether it has been subjected to peer review and publication; (3) whether, in respect to a particular technique, there
is a high known or potential rate of error; (4) whether there
are standards controlling the technique’s operation; and (5)
whether the theory or technique enjoys general acceptance
within a relevant scientific community. Id. A trial court may
consider one or more of those factors when doing so will help
determine that testimony’s reliability, but the test of reliability
is “‘flexible’” and the list of specific factors neither necessarily nor exclusively applies to all experts or in every case. See
Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141,
119 S. Ct.
1167,
143 L. Ed. 2d 238 (1999), quoting
Daubert, supra.
Once the reasoning or methodology of an expert’s opinion
has been found to be reliable, the trial court must determine
whether the expert’s reasoning or methodology was properly
applied to the facts of the case. See Carlson v. Okerstrom,
267
Neb. 397,
675 N.W.2d 89 (2004). The proponent of expert
testimony bears the burden of establishing its reliability under
Daubert/Schafersman. See State v. Casillas,
279 Neb. 820,
782
N.W.2d 882 (2010).
A court performing a Daubert/Schafersman inquiry should
not require absolute certainty. State v. Hill,
288 Neb. 767,
851
N.W.2d 670 (2014). Instead, a trial court should admit expert
testimony if there are good grounds for the expert’s conclusion, even if there could possibly be better grounds for some
alternative conclusion.
Id.
In this appeal, Gleaton mostly renews the same basic arguments that he made about Hurley’s testimony in the district
court. He argues that evidence of the use of RTT data in
prior criminal investigations did not establish that Hurley’s
opinions in this case were reliable. On this point, Gleaton
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Cite as 316 Neb. 114
emphasizes that some of the prior investigations were focused
on rural areas and that Hurley performed them without using
the Pen-Link software. In addition, Gleaton argues that the
State did not introduce evidence relevant to many of the
Daubert/Schafersman factors.
In attempting to establish the reliability of Hurley’s opinion
testimony, the State did rely heavily on evidence regarding
the application of Hurley’s methodology in prior investigations. Gleaton does not dispute that this evidence seemed to
show that Hurley’s methodology produced accurate results in
those cases. Instead, he contends that because some of those
prior investigations were conducted in rural areas and because
Hurley did not use the Pen-Link software in those cases, they
do not tend to show that his testimony in this case was reliable.
We disagree.
We first address Gleaton’s point concerning the use of
RTT data in rural areas. Using the Sidney Loofe case as an
example, Gleaton argues that Hurley was able to successfully
use RTT data in that case because the data indicated that the
suspects’ cell phones were in a rural area and the arcs indicated by the data as potential locations for the cell phones
crossed few possible roads where the suspects could have been
traveling. Investigators searched in the areas where the arcs
intersected those roads and found Loofe’s remains. Gleaton
observes that some of the RTT data in this case indicated the
phones belonging to Gleaton and Christiansen were in a more
urban area and that thus, the arcs indicated by the RTT data as
possible locations of phones would include many more locations where the phones could have been. In essence, Gleaton
argues that Hurley’s methodology may have been reliable in a
rural area, but that this does not tend to show it was reliable
in this case.
Gleaton’s argument, however, fails to account for how
the RTT data was used in the Loofe case and for Hurley’s
actual testimony in this case. The RTT data in the Loofe case
indicated that the suspects’ phones were, for some periods of
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time, stopped somewhere along arcs a particular distance from
the tower to which the phones had connected. The discovery
of Loofe’s remains where those arcs intersected with the nearest road provided evidence that the RTT data was accurate
in indicating that the phones were located somewhere along
the arcs. In this case, Hurley applied the same methodology.
He interpreted the RTT data to indicate that the phones of
Gleaton and Christiansen were, at given times, somewhere
along arcs a certain distance from the towers to which the
phones connected. And, as we have explained, the district
court prohibited Hurley from testifying that a particular phone
was present in a specific location. Hurley testified only that
the RTT data indicated that a phone was somewhere along an
arc at a given time. The more urban setting of this case may
have meant that there were more plausible locations where
a phone could have been located along an arc, but an urban
setting does not undermine the reliability of Hurley’s opinion
that a phone was located somewhere along that arc.
Gleaton also argues that Hurley’s prior use of RTT data
could not establish its reliability in this case because in prior
cases, Hurley did not use Pen-Link’s software to map the
arcs indicated by the RTT data, but mapped the arcs manually. Again, we disagree. Hurley testified that the Pen-Link
software takes the RTT data from Verizon and overlays it on
a map. He compared the software to Google Maps. He testified that if the RTT data is correctly entered into the Pen-Link
software, it will “map out the exact same thing [he] could do
by hand.” The fact that Hurley used the Pen-Link software in
this case rather than mapping the arcs manually as he did in
prior cases does not, in our view, render irrelevant his prior,
successful use of RTT data. The difference between manual
mapping of RTT data and the use of the Pen-Link software
appears to be akin to the difference between doing long division by hand and using a calculator. As one federal district
court has reasoned, the accuracy of a mapping function can
be easily verified, and thus, an expert need not be able to
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offer technical knowledge as to how the mapping function
works in order to rely on it in offering opinions based on cell
site location information. See U.S. v. Nelson,
533 F. Supp. 3d
779 (N.D. Cal. 2021).
In addition to his arguments based on perceived differences between this case and prior cases in which Hurley’s
methodology was employed, Gleaton makes a more general
argument: The State failed to offer evidence relevant to several of the Daubert/Schafersman factors. Here, Gleaton points
out that the State did not offer evidence that Hurley’s methodology had been subject to peer review and publication, that
there were known or potential rates of error, or that Hurley’s
methodology had attained general acceptance in the relevant
scientific community. Gleaton suggests that without such evidence, the State failed to establish the reliability of Hurley’s
methodology.
We disagree with Gleaton that in the absence of evidence
on several of the Daubert/Schafersman factors, the State failed
to show that Hurley’s methodology was reliable. For starters,
it is well recognized that the absence of evidence on some
Daubert/Schafersman factors does not preclude a demonstration of reliability. As we noted above, the factors first set forth
in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S.
579,
113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), do not necessarily apply in every case and a trial judge has broad latitude
to determine whether the factors are “reasonable measures of
reliability in a particular case.” Kumho Tire Co. v. Carmichael,
526 U.S. 137, 153,
119 S. Ct. 1167,
143 L. Ed. 2d 238 (1999).
To that point, some courts have observed that it should come
as no surprise that some expert methodologies have not been
subject to scientific peer review and publication because they
may have few uses outside of criminal investigations and not
have interested scientists. See U.S. v. Reynolds,
86 F.4th 332
(6th Cir. 2023).
Moreover, we believe that in this case, the district court
could reasonably place substantial weight on the evidence of
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Hurley’s prior, successful use of RTT data in concluding that
his opinions were reliable. We reach this conclusion for multiple reasons.
First, we note that there is widespread, if not universal,
acceptance of the general idea that because of the way cell
phones communicate with towers, it is possible to make determinations about the general locations of phones at particular
times. See, e.g.,
id. (noting that it is widely accepted that
cell phone’s general location can be determined by identifying antenna it connected to at specific time); State v. Elias,
314 Neb. 494,
990 N.W.2d 905 (2023) (describing cell site
location information evidence); State v. Brown,
302 Neb. 53,
921 N.W.2d 804 (2019) (describing nature of cell site location information). Obviously, the State could not establish that
Hurley’s use of RTT data was reliable solely by pointing to
the general acceptance of the reliability of some forms of cell
site location data. But here, the evidence tended to show that
Hurley applied generally accepted ideas about the ways cell
phones communicate with towers and basic geometry to a new
type of raw data.
Second, Hurley did not merely assert that RTT data was
reliable; this is not a case where the only basis offered for
the reliability of an expert’s opinion was “the ipse dixit of the
expert.” General Electric Co. v. Joiner,
522 U.S. 136, 146,
118 S. Ct. 512,
139 L. Ed. 2d 508 (1997). Rather, Hurley
explained his methodology, described specific prior instances
in which he applied his methodology, and testified to evidence
that tended to confirm that his methodology produced reliable results in those prior applications. This evidence of prior
reliable results could be seen, in the language of Daubert/
Schafersman, as evidence that Hurley’s methodology had
been tested. As one court has explained, “[t]he reliability of
experience-based expertise is often proven by its success.”
State v. Warner,
430 S.C. 76, 88,
842 S.E.2d 361, 367 (S.C.
App. 2020).
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Prior to concluding our analysis on this assignment of
error, we address one final issue. On appeal, Gleaton briefly
mentions the testimony of the Verizon records analyst and
points out there was no evidence that Verizon confirmed the
accuracy of the RTT data used here. Initially, we note that it
is not clear that Gleaton preserved an argument based on the
testimony of the Verizon records analyst. Gleaton did object
to Hurley’s testimony, but on the basis of his prior motion in
limine, which made no challenge to the fact that the accuracy of the underlying RTT data had not been confirmed
by Verizon.
In any event, we are not persuaded that the district court
abused its discretion even if the testimony of the Verizon
records analyst is considered. Although the Verizon records
analyst was apparently not willing to vouch for the accuracy
of the RTT data, we do not believe the district court was precluded from finding that Hurley’s opinions in this case were
sufficiently reliable to be admitted. We certainly recognize
that the reliability of Hurley’s methodology depends upon
the accuracy of the underlying RTT data. But the district
court had significant evidence that the RTT data was accurate in prior investigations in which Hurley’s methodology
had been employed. The district court also had significant
evidence that the RTT data was accurate in this case: Many
of Hurley’s opinions based on RTT data were corroborated
by other evidence. Hurley’s opinions as to the various locations of Christiansen’s phone throughout the early morning
hours of July 24, 2020, were corroborated by the testimony
of her friends. Hurley’s opinion that Gleaton’s phone was
within an arc that included Christiansen’s home that morning
was corroborated by the testimony of Christiansen’s next-door
neighbor and Gleaton’s admissions to law enforcement. And
Hurley’s opinion that, after the time of the shooting, Gleaton’s
phone traversed through Jackson and returned to Sioux City
was corroborated by testimony that the vehicle Gleaton was
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driving was eventually found in Jackson and that Gleaton himself was eventually located and arrested in Sioux City.
Given the evidence tending to show that Hurley’s methodology produced reliable results in prior applications, and the
evidence tending to show the accuracy of the underlying RTT
data in this case, we cannot say that the district court abused
its discretion in admitting Hurley’s testimony.
2. Prosecutorial Misconduct
Gleaton next assigns that the district court erred by overruling objections he made to two statements of the prosecutor
during closing arguments.
(a) Additional Background
Gleaton objected to two separate statements made by the
prosecutor during closing arguments. The first occurred near
the very end of the prosecutor’s initial closing argument. At
that time, the following exchange occurred:
[Prosecutor:] You are here and you’ve spent seven
days because — because we as a group, whether you call
it society or the State, whatever, are in a social contract.
And we have rules in that social contract. The rules are
you don’t kill folk. You particularly don’t kill folk in this
manner. If you do, we have higher — you know, we drag
in people to see if you broke that contract.
[Defense counsel:] Judge, I’m going to object on this
closing about social contract. This is kind of the golden
rule thing. I think it’s improper for the State to be kind of
playing to those emotional issues. I think that’s improper.
I would ask to strike and tell the jury to disregard.
[Prosecutor:] I’m explaining the basis of law.
THE COURT: I understand. I’ll overrule. You can
continue.
[Prosecutor:] That is the basis of law. And the argument for the basis of law is a social contract, who breaks
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it and who doesn’t. Everybody, it’s not just the family
or the State or the defendant. Just verdicts are set up for
everybody.
Defense counsel made no additional objections to these
remarks, nor moved for a mistrial.
Defense counsel then made closing argument. While arguing that there was reasonable doubt as to whether Gleaton
shot Christiansen, counsel asked the jury to consider the testimony of first responders that Christiansen failed to identify
Gleaton as the shooter when given the opportunity. Defense
counsel stated:
[Christiansen’s] in that ambulance and she’s conscious,
understanding what’s going on and she’s asked this question and she says, “I don’t know.” “Do you know who
shot you?” “No.” She would know who . . . Gleaton
was. If he’s the one that shot her, she would be saying it
was [Gleaton].
During the prosecutor’s rebuttal argument, Gleaton again
objected to statements of the prosecutor. The objection was
made in the following exchange:
[Prosecutor:] A big point made was those two rescue
squad people. Well, one of them, the younger fellow,
“Tell my son I love him. I know I’m dying.” She knew
she was dying. Every beat of her heart put more blood
against the heart in the body. “I can’t breathe.” And
in pain.
....
She was dying. Dying hard. Dying painfully. She had
one thing in her life she would have liked to have clinged
on to, even if she was dying, and that was her son. It’s
just as likely, as [defense counsel] —
[Defense counsel:] Judge, I’m going to object at this
point. This is tugging at the heartstrings of the jury and
appealing to their emotions. I think it’s improper and I
would object.
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[Prosecutor:] I’m explaining her last words and why
she would not identify the person, . . . Gleaton, as the
killer.
THE COURT: The objection is overruled. You may
continue.
[Prosecutor:] As she was dying and as she was dying
hard and as she was thinking of her son, maybe she was
trying to protect her son. Maybe she recalls that door
that had been broken down. Maybe she recalled who she
loved and maybe she wanted to get her last words out.
Maybe, whatever thought process she had, she wanted to
die with some nobility and some sense of purpose.
The older rescue squad fellow who testified, . . . “Yeah,
I’ve been through this a lot. I’ve seen this. We tried.
Dying people have other things on their mind.” Nothing
can be taken for [Christiansen’s] refusal to identify . . .
Gleaton as her killer.
Gleaton again raised no further objection concerning the
above remarks, nor moved for a mistrial.
(b) Standard of Review
The parties disagree as to whether Gleaton preserved for
appeal his argument that the prosecutor committed misconduct during his closing argument. The State argues that
because Gleaton did not move for a mistrial based on the
prosecutor’s statements, he has waived any error resulting
from the comments. The State has cited a line of cases from
this court recognizing such a proposition. See, e.g., State v.
Stricklin, 290 Neb. 542, 563,
861 N.W.2d 367, 388 (2015)
(“[a] party who fails to make a timely motion for mistrial
based on prosecutorial misconduct waives the right to assert
on appeal that the court erred in not declaring a mistrial due
to such prosecutorial misconduct”).
Before addressing Gleaton’s response, we briefly digress
to note that while there is ample authority holding that our
review is limited when a defendant fails to move for a mistrial
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based on alleged prosecutorial misconduct, our language in
cases recognizing that principle may have been somewhat
imprecise to the extent we said that a defendant waives the
right to claim prosecutorial misconduct on appeal by failing to
move for a mistrial. As we have recently observed, the failure
to timely assert an objection technically amounts to a forfeiture rather than a true waiver, and when a forfeiture occurs, an
appellate court still has the discretion to notice plain error. See
State v. Horne,
315 Neb. 766,
1 N.W.3d 457 (2024). Despite
our references to waiver, we have actually treated a defend
ant’s failure to move for a mistrial on the basis of alleged
prosecutorial misconduct more like a forfeiture by conducting
a plain error review in such circumstances. See, e.g., State v.
Price,
306 Neb. 38,
944 N.W.2d 279 (2020); State v. Mrza,
302 Neb. 931,
926 N.W.2d 79 (2019).
Returning to the parties’ arguments, Gleaton takes issue
with our cases holding that appellate review is limited if a
defendant fails to move for a mistrial based on alleged prosecutorial misconduct. He asks us to reconsider that line of
cases and relies heavily on the work of a commentator. See
John P. Lenich, Nebraska Civil Procedure § 31:11 (2023). That
commentator argues that if, as here, defense counsel contemporaneously objects to allegedly improper statements of the
prosecutor and the objection is overruled, counsel should not
also have to move for a mistrial to preserve the issue for appellate review. See id. While Gleaton argues that his counsel’s
objections should be sufficient to preserve his claims of prosecutorial misconduct for appellate review, he concedes that if
we treat the issue as preserved, any review should be for abuse
of discretion.
Ultimately, we find this is not an appropriate case to reconsider our precedent requiring a motion for mistrial to preserve the issue of prosecutorial misconduct for full appellate
review. We reach this conclusion because, even assuming the
issue is preserved for full appellate review, the district court
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did not abuse its discretion in overruling Gleaton’s objections.
We explain why below.
(c) Analysis
[6-9] We have said that prosecutorial misconduct “encompasses conduct that violates legal or ethical standards for
various contexts because the conduct will or may undermine
a defendant’s right to a fair trial.” Price, 306 Neb. at 54,
944
N.W.2d at 292. Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may have
a fair and impartial trial, and prosecutors are not to inflame
the prejudices or excite the passions of the jury against the
accused.
Id. A prosecutor’s conduct that does not mislead and
unduly influence the jury does not constitute misconduct.
Id.
In assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor’s remarks were improper.
Id. If the remarks are found to
be improper, it is then necessary to determine whether the
improper remarks had a prejudicial effect on the defendant’s
right to a fair trial. See
id.
We first apply these standards to the prosecutor’s remarks
near the conclusion of his initial closing argument, where he
made reference to a “social contract.” Gleaton argues that
these remarks “appeal[ed] to societal obligation” and improperly urged the jury to consider the message its verdict would
send to the community. Brief for appellant at 25. We disagree
with Gleaton’s characterization of the prosecutor’s remarks.
At no time did the prosecutor suggest that the jury had a societal obligation to reach a particular verdict or should consider
the impact its verdict would have on the wider community.
The prosecutor did make reference to a “social contract,” but
only in the context of an assertion that murder is a crime and
that juries are called to determine whether that crime was
committed. Such an innocuous statement would not, in our
view, mislead, unduly influence, or inflame the prejudices of
the jury against Gleaton. We disagree with Gleaton that these
remarks were improper.
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As for the prosecutor’s remarks in his rebuttal closing
argument, we find that they also were not improper. Gleaton
argues that the prosecutor appealed to passion and prejudice
by describing Christiansen’s death and referring to her son.
Again, however, the remarks must be viewed in context.
Gleaton’s counsel had just argued that there was reasonable doubt as to whether Gleaton shot Christiansen, because
when Christiansen was asked to identify the shooter, she said
she did not know. In response, the prosecutor was entitled
to make his own argument based on the evidence as to why
that did not establish reasonable doubt. See State v. Dubray,
289 Neb. 208, 227,
854 N.W.2d 584, 604 (2014) (“[w]hen a
prosecutor’s comments rest on reasonably drawn inferences
from the evidence, he or she is permitted to present a spirited
summation that a defense theory is illogical or unsupported
by the evidence”). The prosecutor argued that the fact that
Christiansen did not identify the shooter was inconsequential
because she was dying and perhaps thinking only of her son.
That was a permissible inference from the evidence as there
was testimony from the first responders that it is common for
individuals in shock to fail to give direct answers to questions,
as well as evidence that Christiansen was repeatedly stating at
that time, “Tell my son I love him.” The prosecutor’s summation on this point was indeed spirited, but our law permits as
much. See id.
3. PSR
Gleaton next argues that the district court erred by not striking certain material from the PSR.
(a) Additional Background
Prior to sentencing, Gleaton filed a motion in which he
asked the district court to direct the probation office not
to include within the PSR (1) victim impact letters from
anyone other than victims as defined under Neb. Rev. Stat.
§ 29-119(2)(b) (Supp. 2019) and (2) letters that include
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characterizations and opinions about the crimes, Gleaton,
and the appropriate sentences. The district court overruled
Gleaton’s motion.
After the PSR was prepared, Gleaton filed a second motion
requesting the district court to strike from the PSR specific letters submitted by individuals he contended were not
allowed to submit such letters, including siblings, aunts,
uncles, and a friend of Christiansen. Gleaton also asked the
district court to redact from the PSR what he contended were
improper characterizations and opinions about the crimes,
Gleaton, and the appropriate sentences. At the sentencing
hearing, the district court heard argument on Gleaton’s second motion, overruled the motion, and stated the court would
“disregard any information contained in those letters that are
inappropriate characterizations and opinions about [Gleaton],
the crime[s], or the appropriate sentence[s].”
(b) Standard of Review
[10] Absent an abuse of discretion, an appellate court will
not disturb a trial court’s rulings as to the source and type of
evidence and information that may be used in determining the
kind and extent of punishment to be imposed. State v. Lara,
315 Neb. 856,
2 N.W.3d 1 (2024).
(c) Analysis
Gleaton argues on appeal that the district court erred by
not striking from the PSR the victim impact letters submitted by persons not specifically identified as victims under the
Nebraska Crime Victim’s Reparations Act. See § 29-119(2)
and Neb. Rev. Stat. § 81-1848 (Cum. Supp. 2022). He also
argues that the district court should have removed statements
within victim impact letters that he contends were characterizations and opinions about the crimes, Gleaton, and the
appropriate sentences.
Our precedent and the district court’s response to Gleaton’s
motions on this issue pose substantial barriers to Gleaton’s
arguments. First, we have, on numerous occasions, rejected
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arguments that the Nebraska Crime Victim’s Reparations Act
prohibits a sentencing court from receiving information from
individuals other than those specifically identified as victims
in that statute. See, e.g., State v. Thieszen,
300 Neb. 112,
912 N.W.2d 696 (2018); State v. Galindo,
278 Neb. 599,
774
N.W.2d 190 (2009). Second, while we have held in some
capital cases that victim family members’ characterizations
and opinions about the crime, the defendant, and the appropriate sentence may not be received in evidence, see, e.g.,
State v. Garcia,
315 Neb. 74,
994 N.W.2d 610 (2023); State
v. Vela,
279 Neb. 94,
777 N.W.2d 266 (2010), Gleaton does
not point to any authority suggesting that limitation applies
to a noncapital case like this one. Finally, even if the district
court were precluded from considering characterizations and
opinions about the crime, the defendant, and the appropriate
sentence, the district court expressly stated that it would not
consider “inappropriate characterizations and opinions about
[Gleaton], the crime[s], or the appropriate sentence[s].” We
have held in a capital case that the Eighth Amendment is not
violated if a sentencing panel does not consider impermissible
victim impact statements. See State v. Bjorklund,
258 Neb.
432,
604 N.W.2d 169 (2000), abrogated on other grounds,
State v. Mata,
275 Neb. 1,
745 N.W.2d 229 (2008).
In the face of the foregoing, Gleaton has crafted a novel
argument. He claims that he is not objecting to the district
court’s consideration of the victim impact material at issue,
but the future possible consideration of the material by others. He observes that by statute, the PSR will be transmitted
to the Department of Correctional Services and, in addition,
may be requested by the Board of Parole. See
Neb. Rev.
Stat. § 29-2261(8) (Cum. Supp. 2020). He contends that
because the district court did not remove the material to
which he objected, correctional and parole officials will now
have access to material they should not have. As a remedy
on this issue, he asserts that we should remand the cause to
the district court, not to reverse or vacate his convictions or
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sentences, but solely to direct the district court to strike from
the PSR the material he has challenged.
We are not persuaded by Gleaton’s argument. Regardless of
what entities may ultimately receive the PSR from this case,
Gleaton has not shown that the district court was obligated
to strike any material from the PSR. The district court had
discretion to accept victim impact letters from persons other
than those identified as victims by statute, and we are aware
of no authority that required the district court to strike from
the PSR any characterizations and opinions about Gleaton’s
crimes, Gleaton, or the appropriate sentences. Gleaton has
also failed to direct us to authority that would prohibit correctional or parole officials from considering the information
to which he objects. But, more importantly, to the extent any
entity might, at some unspecified point in the future, unlawfully rely on material in the PSR to Gleaton’s detriment, that
issue is not before us today. See Williams v. Frakes,
315 Neb.
379, 385,
996 N.W.2d 498, 503 (2023) (observing that “fundamental principle” of ripeness doctrine is that “courts should
avoid entangling themselves, through premature adjudication,
in abstract disagreements based on contingent future events
that may not occur at all or may not occur as anticipated”).
4. Judicial Misconduct
Finally, Gleaton assigns that the district court committed
judicial misconduct at sentencing. Gleaton argues that the
district court judge asked him inappropriate questions during
sentencing and that as a result, his sentences should be vacated
and the cause should be remanded for resentencing in front of
a different judge.
(a) Additional Background
During the sentencing hearing, the district court engaged in
a colloquy with Gleaton. In that exchange, the district court
asked Gleaton about his background, his use of marijuana,
prior convictions of domestic assault, and possible gang affiliation. Gleaton admitted that he was not working at the time
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of Christiansen’s death, that he used marijuana regularly, and
that he had previously been convicted of domestic assault, but
he denied membership in any gangs.
The district court then asked Gleaton, “[W]hy did you
shoot . . . Christiansen?” Gleaton’s trial counsel objected and
advised Gleaton not to answer. The district court then asked
Gleaton, “Do you wish to answer my question, sir?” Gleaton
declined.
Later at the sentencing hearing, the State called to testify an
investigator who interviewed Gleaton. The prosecutor stated
that the investigator would provide testimony relevant to the
district court’s questions about Gleaton’s membership in a
gang. The prosecutor asked the investigator whether Gleaton
made statements to him about gang membership or identified
other gang members, but Gleaton’s counsel objected on foundation grounds, and the objections were sustained.
(b) Standard of Review
[11] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. State v. Miller, 312 Neb. 17,
978 N.W.2d
19 (2022).
(c) Analysis
Gleaton argues that based on the exchange recounted
above, a reasonable person would question the district judge’s
impartiality. He argues that the district judge demonstrated
bias in multiple ways. First, he contends that the district
judge’s questions about his lack of employment, drug use,
and prior convictions evince partiality; he asserts that this
information was available in the PSR and speculates that
the district court asked these questions in open court only to
satisfy those present who were supportive of Christiansen.
Second, he contends that the district judge also showed bias
by asking Gleaton why he shot Christiansen. On this point,
Gleaton claims that the district judge asked him a question he
had a Fifth Amendment right not to answer. Finally, Gleaton
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contends that the district court’s questions about gang membership showed bias against Gleaton and allowed the State to
introduce evidence regarding gang membership.
In support of his argument that the district court demonstrated bias, Gleaton relies on State v. Pattno,
254 Neb. 733,
579 N.W.2d 503 (1998). In that case, during the sentencing of
a defendant convicted of sexual assault of a child, the district
court read a biblical passage. This court vacated the sentence
and remanded the cause for resentencing before a different judge.
We agree that
Pattno, supra, sets forth the governing standards to assess Gleaton’s argument, but we disagree that application of those standards in this case requires that Gleaton’s
sentences be vacated. In Pattno, we reiterated prior holdings
that a defendant seeking to disqualify a judge on the basis
of bias or prejudice bears the heavy burden of overcoming
the presumption of judicial impartiality. We held, however,
that “[i]f a judge’s comments during sentencing could cause
a reasonable person to question the impartiality of the judge,
then the defendant has been deprived of due process and the
judge has abused his or her discretion.”
Id. at 743,
579 N.W.2d
at 509.
We find that the comments of the district court judge here
could not cause a reasonable person to question the judge’s
impartiality. Although answers to some of the questions posed
to Gleaton may have been available in the PSR, we do
not believe a reasonable person would question the district
judge’s partiality because of the questions he asked regarding
Gleaton’s background. Neither do we find a reasonable basis
for believing the district judge was biased against Gleaton
because he asked Gleaton why he shot Christiansen. Gleaton
may have had a Fifth Amendment right not to answer the
district judge’s question, and at his counsel’s advice, he did
not answer it. That said, we do not believe the district judge
demonstrated a basis to question his impartiality by giving
Gleaton an opportunity to provide an explanation for the crime
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of which he stood convicted by a jury prior to sentencing.
Finally, we do not believe the district court’s question regarding gang membership would allow a reasonable person to
conclude that the district court was biased. In
Pattno, supra,
it was determined that the district court’s recitation of a biblical passage interjected the trial judge’s personal views into the
sentencing proceeding. Here, we see nothing similar. Rather,
the district court asked Gleaton various questions, the answers
of which were potentially relevant to the appropriate sentences
to be imposed.
5. Plain Error
In addition to Gleaton’s assignments of error, the State
argues that the district court committed plain error when it
applied 413 days’ credit for time served to Gleaton’s life sentence, instead of applying the credit to the nonlife sentences
consecutive to Gleaton’s life sentence. We agree with the State.
[12] A defendant is not entitled to credit for time served
against a life sentence. See State v. Ely, 287 Neb. 147,
841
N.W.2d 216 (2014). When, however, a defendant receives a
sentence consecutive to the life sentence that has maximum
and minimum terms, the defendant is entitled to receive credit
for time served against the consecutive sentence.
Id.
The district court’s application of 413 days’ credit for time
served to Gleaton’s life sentence was plain error. We therefore
modify Gleaton’s sentences by ordering that Gleaton receive
413 days’ credit for time served against the aggregate of the
minimum and the aggregate of the maximum sentences of
imprisonment for his nonlife sentences. See State v. Custer,
292 Neb. 88,
871 N.W.2d 243 (2015).
IV. CONCLUSION
For the reasons explained above, we affirm Gleaton’s convictions and affirm his sentences as modified to correct the
district court’s award of credit for time served against his
life sentence.
Affirmed as modified.
