*1 Nebraska, appellee, Hunt, Jr., v. State Robert Edward appellant.
Thomas appellant. Brown, General, Spire, Attorney and J. Kirk for
Robert M. appellee. C.J., Boslaugh,
Krivosha, White, Hastings, Caporale, Shanahan, Grant, and JJ.
Caporale, J. defendant, Hunt, Jr., jury guilty A found Robert Edward of degree thereupon adjudged He was first murder. so subsequently adjudication to death. sentenced We affirm the resentencing. guilt but vacate sentence remand THE AND CRIME ITS INVESTIGATION 12, 1984, evening approximately April On the at 10:30 Dekker, Monroe, Douglas Kenneth p.m., Rick Officers Brahmer, Klug Department Norfolk and Donald Police dispatched were Norfolk home. The officers had defendant’s dispatcher been that a woman had advised their called stating thought he killed her husband had someone Upon “going deep end.” their arrival at defendant’s off Hunt, residence, bymet the officers were Wanda defendant’s wife, is He is informed them “he in the other room. not who dangerous. any guns He doesn’t weapons. have or He sitting down.” The officers found sitting cross-legged defendant on room, living Dekker, the floor in the sobbing. Officer an acquaintance defendant, asked, approached him and “Bob, you over, do remember put me?” The defendant leaned one side, hand on Officer Dekker’s arm and one arm around his said, “Yeah, Doug, I killed Doug, her. I killed her.” The responded Dekker, defendant questions to further from Officer stating that he did not gave know the victim’sname but them the said, victim’s address. Defendant further “She works at Dodge. Norfolk picture Her was in paper because she is getting married next month.” Defendant then informed the gained officers that he entrance into the victim’s home brandishing gun a BB he had stolen earlier from a store and that “strangled her.” mumbling, Defendant then gotta started “I pay. I gotta pay.” killed her. I Officer Dekker large noticed a scratch on defendant’s chest and arm and asked where it came from, to which replied, “She must have did it.” silence,
After a moment or two of defendant directed the *3 officers to a cassette box under a couch. Officer Brahmer opened the box and found pairs that it contained several underwear, nylon ladies’ hosiery, magazines, pair sex-oriented a glasses, gun. and a BB Officer Brahmer asked if Mrs. Hunt glasses the underwear belonged or the replied to her. She they did not. Defendant then told thought the officers he glasses belonged to victim.
Officer Dekker said thought go he someone should by address mentioned defendant to check on the welfare of the person there, to replied which defendant he killed her and that she said, was dead. Defendant then “I can see her. She’sin the bathtub and she’s dead.” At that time Officers Monroe and Klug, just scene, who had arrived at the left defendant’s proceeded residence and given by to the address defendant to determine what place had taken there. Officers Dekker and stayed Brahmer with defendant in his home.
Officer anything Dekker asked defendant if he had done else “Yeah, replied, sexually the victim. Defendant I assaulted her after always girls she was dead. I see them laid out in the pictures eyes with their just closed and I had to do it. I dreamed it.” long just that I had to do it for so
about floor, rocking and Defendant, sit on the who continued to thought “please was don’t Officer Dekker sobbing, said what Dekker further recalled: kill me.” Officer I him if that’s what he said. So then asked I wasn’t real sure said, again question, “What?” in reference to what said, don’t kill me.” I then stated at which time he “Please him, “Bob, going you.” He then nobody is to kill said, “No, not me. She sobbing a little harder and started me, me, I didn’t please kill don’t kill and please said don’t listen, anyway.” I did it meantime, p.m., Officers approximately
In the at 10:50 receiving Klug After Monroe and arrived at the victim’s home. calls, repeated knocking and the officers no answer to their residence, home, the victim entered the a mobile and found nude, They lying in the bathtub. observed that a face down nylon neck and that wrapped material was around the victim’s type placed of material had been in her some of same checking pulse finding Klug, mouth. Officer after for a none, very observing pale that the victim’s skin was touch, cool concluded the victim was dead. He then house, Dekker, notified Officer who was still at defendant’s story apparently that defendant’s true and to arrest him. thereupon Defendant was arrested and taken to the Norfolk by being police station Officers Dekker and Brahmer. While booked, pulled crumpled defendant washcloth from his pocket. When asked Officer Dekker where the cloth came from, replied that he did not defendant know. any interrogation after
Prior the arrest before rights, defendant was advised of his Miranda defendant inquired Chapman whether he could ask Officer Leon girl” question, Chapman then asked how “the was. Officer told dead, responded that she was to which defendant face, knees, placing his hands over his with his elbows on his *4 approximately up, 30 seconds. Defendant then sat Officer Chapman rights, advised defendant his Miranda and questioning by Chapman began Officer April at 12:15 a.m. on Chapman 13. Officer testified that at this time defendant was stunned, gesture calm and did other not act shocked or than the with his hands over his face. 12, prior Chapman April
Defendant Officer told 1984, urge he he had told his wife that had an to kill a woman explained and have sex her was that he with after she dead. He experienced urges past. had these in the On other these case, gather up together occasions he would the cassette with magazines knife, large go looking sex a and kitchen and “out with, a for female to do this but on those occasions could not one.” find response question
In why particular to a picked about he this girl, 12, 1984, Tuesday defendant prior April stated that the Thursday, which was a he a photograph saw the victim on the engagement page Daily of the Norfolk News. She was otherwise unknown reported during early to him. He further the evening April hours of he shoplifted gun a BB and nylons, having some panties shoplifted women’s and some nylon rope previous on the night.
Defendant then drove to the mobile and victim’s home parked. He watched the victim’s home 5 to 10 and minutes lights on, saw that the driveway, were a car was in the someone was home. The victim had in returned home a fact earlier, having short time eaten dinner with friend and her at husband their home. had at She left her friend’s house 9:10, approximately telling going post she them to the office and then home. parked
Defendant then drove down the street in the lot store, nearby positioning his car he could see the so that kept victim’s home. He the home under observation for another 5 or 10 minutes while he also looked at some of the sex magazines brought he had with him. car, got
Defendant out of took his cassette case and gun, which pants, up he had stuck into his and walked times, victim’s approximately home. He walked around it two looking into he could see the the windows to determine if not, up porch victim. He could and walked onto door, opened knocked on door. When victim pointed gun her and in. at walked on in the Defendant commanded victim to the floor lie legs complied, kitchen. After tied she her arms *5 712 ” my car, something about “take but
nylon rope. The victim said say too as he had stuck some have a to much she did not chance dragged the victim into her Defendant then panties into mouth. room, stocking nylon removed from his living where he a neck, strangling her. put case and it around her cassette According Chapman, defendant described the to Officer tighter tighter trying to render tightening as “down and process unconscious, finally unconscious.” When she became her living threw room rope untied the it on a table. defendant her Defendant then removed the victim’s robe carried bedroom, pants where he his into the removed masturbated, ejaculating her onto stomach. Defendant stated He pulse. the victim still a next carried victim into had bathtub, her in placed the bathroom and which had twitching water in it. victim was approximately foot of shaking while head placed he her under the water. Then the rang gathered belongings telephone and defendant his and left. Chapman the end interview At of this Officer asked give a tape-recorded defendant to him a or written statement concerning his the victim’s statement involvement in death. replied . just Defendant that he “would . . as soon an have attorney any present tape written or recorded statement.” Chapman agree Officer then asked if he would let defendant police replied yes, search home and his car. Defendant his saying willing cooperate any way, except that was attorney present he would like to gave have an when and if he a tape-recorded written or statement. The interview then ended at 13,1984. a.m., approximately April 1:53 approximately morning, At 2:35 a.m. same defendant signed giving police a consent permission form his search home and automobile. Defendant’s home and automobile were Department. then searched members of the Police Norfolk pair glasses box, partial gun, opera A box for a BB a and its not and items related to the crime were seized from his automobile. Chapman began a.m. to interrogate
At 9:34 Officer yet Defendant defendant second time. had not consulted with attorney, given nor opportunity an had he been an do so. Chapman again Officer informed defendant of his Miranda rights, again During which waived. defendant this second interrogation, Chapman told had Officer that he pair glasses wearing taken which the victim was when he entered home. her He removed them from her face at the time fingerprints murder because he feared were on them. his gloves Defendant admitted that he used and a rubber washcloth taken wipe fingerprints from the victim’s home to off things apartment. doorknob and other he had handled in the *6 Defendant also admitted that he had oral sex with the victim rendering after give her unconscious but that “it the didn’t me thought kick that I it would.” Defendant first said his that purpose was to knock engage the victim unconscious and then activity However, in sexual with her. Chapman when Officer asked, night you house, when went to the victim’s did “[L]ast you go her,” there with the intent to kill her and sex have replied, general my was the when I idea left “[T]hat yes.” house The Chapman, defendant then said to “I Officer you think agreed that any and I before I that made further statement I attorney.” would an Chapman have Officer told defendant he understood defendant was willing cooperate in any way except giving statement, written a or recorded and then asked: you being way” it recall that and he
“[D]id [defendant] then “yes.” waited for minute a and advised And was approximately at on April, 10:45 a.m. the of 13th 1984. After that then I again, statement then asked him quote, you now, questioning do wish quote, to be ceased just Hunt then me advised after about 10 or 15 seconds of sitting thinking, stated, quote, fine, might there that’s keep going, quote. as well questioning ended at 10:46 a.m. arrested,
After defendant police, was Mrs. Hunt disclosed to both orally writing, and in prior that a few months to the crime defendant had told murdering her he fantasized about woman then masturbating on her. autopsy
An on performed body was the at victim’s approximately morning 13, 1984, April 9:30 on the of Dr. Cassel, Papenfuss, prior Clyde Jr., Harlan died who to trial. Dr. Papenfuss’ assistant, by deposition testified that the victim’s panties, of women’s pairs to contain two
mouth was found pair of during autopsy. the The second were removed which the back of the victim’s impacted tightly into panties was throat, mouth, be removed with the into the and had to almost up forceps. pushed that when into that aid of Cassel testified area, passages. nasal panties the obstructed the nylon stockings been tied around the leg pair
A from a of had pair nylon comparing portion of a of victim’s neck. After box stockings police in defendant’s cassette found neck, chemist portion found around the victim’s a forensic opinion portions the two had at one time testified that nylon stockings. single pair formed a of Lacey, pathologist, that he had Dr. Steffen testified Papenfuss’ autopsy report, photographs reviewed Dr. taken Cassel, testimony Clyde autopsy, at the time of the and the Jr., opinion asphyxia and that in his the victim died of as a result ligature strangulation. say, victim died from a That oxygen resulting object having placed lack from some been breathing. prevented around her neck which her from It appeared Lacey nylon stocking Dr. used to accomplish strangulation. neck three victim’s showed running bruises around its circumference in three different positions, indicating nylon stocking had been moved from *7 neck, point point tightened. Lacey to on the victim’s then Dr. ligature pressure also testified that the exerted on the neck in period this manner could cause unconsciousness for a brief by prior oxygen to death and that in a death caused lack of to brain, body may the the twitch or shudder either at the time of Lacey’s opinion death or after death. In Dr. death occurred prior autopsy. from zero to 24 hours to the Zastera, serologist, Carol a forensic testified that no semen body the was found on the victim’s or on swabs taken from her body body possible the could tissue and that it was have prior autopsy. been water cleansed of the semen the PRETRIAL MOTIONS trial, suppress any moved to Prior to defendant evidence relating to the items seized from his automobile and home and suppress by him placed all statements made after he was to. custody by addition, the Department. Norfolk Police In concerning defendant all moved that evidence communications between him and be suppressed his wife and that the State be any not any directed to adduce evidence which in manner referred to such communications. trial court overruled all except the motions suppressed it defendant’s denial of knowledge as to source the washcloth found on his person.
ISSUES RE ADJUDICATION OF GUILT assignments present following Defendant’s 23 of error issues respect with to the he guilty determination that is of first degree (1) murder: failing Whether the trial court erred in sustain following defendant’s motion to dismiss prosecutor’s opening statement; (2) Whether the trial court failing erred in suppress exclude evidence admissions made police after arrested; (3) finding Whether the trial court erred in spousal elimination of privilege in violent crimes is constitutional; (4) Whether the trial failing court erred in suppress concerning evidence the items seized from defendant’s automobile; (5) home and and Whether the trial court erred in
finding that the evidence was beyond sufficient a reasonable guilty degree doubt to find the defendant of first murder.
We address each of these issues in turn.
(1) Statement Prosecutor Defendant overruling contends that the trial court erred in his motion following to dismiss the information prosecutor’s opening argues statement. He that Neb. Rev. Stat. (Reissue 1979) 29-2016 prosecutor § mandates that the define in opening the State’s statement of the crime elements which a charged prosecutor criminal defendant and that the in this Assuming, deciding, case failed to so do. without that the degree elements of first during murder were not delineated statement, opening State’s the defendant’s contention is nonetheless without merit. provides part:
Section 29-2016 *8 sworn, jury impaneled After the has been the trial proceed following order: (1) The counsel for shall in the 716 may prosecution the case of the must state
the state it; by he to sustain expects which briefly the evidence state his defense must then state his counsel (2)the defendant or in briefly expects he offer the evidence may state support of it.... case”; it prosecution to the requires the “state
The statute contention, not, specifically contrary to the defendant’s does crime. prosecution define the elements of the require the that 694, 701, Oltjenbruns, 187 Neb. 193 We so held in State v. requires saying: “The that (1972), 749 statute N.W.2d prosecution case of the for the state must state the counsel by he it. may briefly expects the which sustain state evidence requirement prosecution that the must It contains no necessary of the specifically all of the elements enumerate offense.” distinguishable argues Oltjenbruns
Defendant prosecutor case the failed to mention some because elements, prosecutor whereas his trial did not mention the find all any of elements. We do not this distinction at meaningful. it prosecution The the case” when outlined “stated against proceeding nature the defendant. It further jury which disclose outlined for the the evidence would how also, See, State, murder Morris v. 109Neb. occurred. N.W. 717 (1922).
(2) Admissions of Defendant issue, defendant, argued presents as two second during questions: (1) Should the admissions made April beginning at 9:34 a.m. been the second interview have (2) past suppressed? Should defendant’s admission searches might satisfy urges kill in for women to order sexual suppressed? been have
Second Interview questions negatively. must be first of these two answered wisely introducing prosecutor At trial the refrained from into any during defendant made evidence admissions Thus, constitutionally suspect second interview. the trial court’s ruling refusing no suppress those admissions had effect on guilt. If there the resolution of issue of defendant’s was error
717
ruling,
prejudice
in the
the
did not result in
error
provides
ground
therefore harmless.
error
no
for
Harmless
Smith,
201,
judgment
guilt.
reversal of a
State
218 Neb.
of
v.
722,
Plymate,
Prior Acts question The second is whether evidence to defendant’s as satisfy admissions of prior urges unsuccessful efforts to his sexually to kill women and use corpses their should have been may argues excluded. Defendant acts evidence of other not be received in a prosecution criminal unless that evidence is so time, in place, charged related offense circumstance to the probative as to have Defendant value. asserts that evidence admitted at trial was too far removed in time from murder the events not enough were similar to the crime in question justify as to complains its admission. Defendant also unduly prejudicial. that the evidence was 27-404(2) (Cum. 1984)provides: Neb. Rev. Stat. Supp. § crimes, wrongs, Evidence of other or acts is not prove person admissible to the character in order of a show conformity may, that he or in It she acted therewith. however, purposes, proof be such as admissible other motive, intent, plan, of opportunity, preparation, knowledge, or identity, absence of or accident. mistake explained 27-404(2) This court in the function of State v. § Stewart, 351, 347, 368, (1985), 219 Neb. 363 N.W.2d 371 as an relevant,
inclusionary
permitting
specific
rule
the use of
purposes except
prove
person
acts for all
of a
character
conformity
in order
person
to show
such
acted in
Thus,
of other
404(2) permits
character.
Rule
evidence
any
acts if such
other than to
purpose
acts are relevant for
show
disposition
to commit
propensity
defendant’s
or
charged.
crime
However,
overriding protection
subject
27-404(2)
§
(Reissue
of Neb. Rev.
states that
1979),
Stat.
27-403
which
§
if,
things, the
among
such evidence
other
must be excluded
outweighed by
probative
substantially
value of the evidence is
danger
Craig,
State v.
prejudice
unfair
to the defendant.
718
Further,
(1985).
Neb.
Evidence of other crimes be admitted a criminal time, place, prosecution where the evidence is so related in charged and circumstances to the offense or offenses so as probative determining value in have substantial guilt balancing the accused. The the need for against possible prejudice other-crimes evidence appropriate defendant is within the discretion of the trial court. 707, 710, Keithley, 218
State v.
Neb.
358 N.W.2d
(1984).
discussing
In
the discretion exercised
the trial
court
*10
evidence,
admitting such
we said:
“The extent to which the discretion of the trial court
regard
will be allowed to be exercised in this
has not been
by any
Probably
fixed
decision of this court.
it cannot be
depends upon
but
the facts in each case.
In
...
State v.
189,
968,
Siddoway, 61 Utah
211 P.
it was held: ‘No exact
limitation of time can be fixed as to when another offense
tending
prove
charged
the intent of the act
is remote.
The
question
depend
decision of that
upon
must
case,
particular
circumstances of the
and whether
evidence too
question
is
remote or not is a
whose decision
largely
is
in the sound discretion of the trial court.’
generally
accepted
doctrine
is
[Citations omitted.]
point
that
remoteness in
may
of time
weaken the
evidential value of the evidence
justify
but does not
its
exclusion. [Citations omitted.]
“Likewise it ais matter
to the discretion
the trial
left
court as to
prior
sufficiently
whether the
are
offenses
charged
similar to the one
in the case on trial so that
”
probative
evidence
has
value.
thereof
(Emphasis
original.)
709-10,
in
Id. at
358 N.W.2d at
Ellis,
quoting
State v.
(1981).
Neb.
Defendant had lived in Norfolk for 6 Officer trial, earlier, Chapman testified during at as indicated that 13, 1984, April first interview on defendant admitted to him he experienced past urges that had kill a woman and have sex with her and he had with about that talked his wife it. Chapman Defendant then told Officer on or three that two prior murder, gathered occasions he had his cassette case together magazines paraphernalia, being with the the sex gotten residence, a knife that he had from the kitchen at his with, looking and then went out for a female to do but on this those not occasions could find one. intent,
This relevant prove evidence is defendant’s which is time operative the state of mind at the of an act. State v. Stewart, supra. The evidence was not to show offered defendant’s character that he in with it. acted accordance Rather, the evidence tended to show that defendant went to the intending victim’s home to kill then her and to have sex her. strikingly The acts are similar in nature to the crime actual eventually committed. The evidence relevant in it tends to refute defendant’s claim that did not premeditate only the murder —that he meant to render the prior prove victim unconscious. acts also tend motive, preparation, plan defendant’s crime. present say We therefore cannot the trial court abused its discretion admitting at this evidence trial. Privilege (3) Spousal concluding Defendant contends that the trial court erred in the privilege preventing spouse abolition of from testifying any about one confidential communication made *11 to the other in crimes of violence is constitutional. Neb. Rev. (Cum. Supp. urges Stat. 27-505 1984). preserving He that § privilege abolishing it in ones nonviolent crimes and violent Const, special legislation constitutes class in violation of Neb. Ill, 18, prohibiting special granting art. laws and the of a § any special privilege person, and further offends concepts process equal protection of due because the and classifications of “violent” “nonviolent” are crimes arbitrary, capricious, and to a bear no rational relation legitimate purpose. state
Wife’s to Police Statements argues overruling Defendant first court erred in the trial any his motion suppress reference prohibit 720 fantasies. concerning his sexual wife he made to his
statements no prosecution offered presents no issue because This claim to what defendant’s reference made no trial trial evidence and in connection As discussed earlier respect. in that reported wife ruling were interview, trial court’s even if the with the second decide, prejudicial it had no erroneous, not a matter we do basis for provides no and thus upon the defendant effect reversal. Wife Statements to
Defendant’s defendant admitted at trial that Chapman testified Officer a woman and have having urge an to kill his wife of he had told she was dead.” sex with her “after as to analyzing defendant’s contentions purpose of For the 27-505, assume, again but do not constitutionality we of § may decide, which otherwise have any spousal privilege made the combined disclosures existed was not waived Chapman. wife to Officer both defendant and his depends upon arguments defendant’s constitutional Each of differently than treating violent crimes premise unreasonable, arbitrary, capricious, and nonviolent ones is the fact. simply Such is not irrational. State, 335, 338, 196 Sandberg 188 Neb. v.
We stated quoting Employees v. State (1972), Gossman N.W.2d (1964): 111Neb. N.W.2d 97 System, Retirement testing legislative principles applied to be “The difficulty have been well established. classification facts or a particular set of application in their arises proper if the Clássification is particular legislative act. from other distinction has some reasonable special class character, which distinction bears subjects general like of a objectives legitimate relation to the some reasonable may, legislation. Legislature purposes of must, or distinctions that out classes many times carve But, on closer arbitrary or unreasonable. appear would examination, the classifications are related it is found that of the necessary accomplishment to and are question legislation. The legitimate purposes by the Act things persons or classified always whether
721 by form proper legitimate themselves class with reference to purposes the of the Act...’.” Marsh, 598, In Douglas 608-09, State ex rel. v. 207 Neb. 300 181, N.W.2d 187 (1980), quoting City v. of Scottsbluff Tiemann, 256, 175 185Neb. 74 (1970), N.W.2d we said: competent “It Legislature classify objects is for the to of legislation the and if classification is not reasonable and arbitrary, legitimate legislative it is a power. exercise of The upon classification must rest real [Citation omitted.] differences in surrounding situation and circumstances subject members of the class relative to the the of legislation its appropriate which renders enactment. power The of classification rests with [Citations omitted.] Legislature the and cannot be interfered with the courts it clearly apparent Legislature unless that the has attempted artificial and baseless classification to evade provisions and violate prohibiting of the Constitution and special legislation. local A [Citation omitted.] legislative classification, valid, in order to be be must upon public policy, based reason some of some substantial circumstances, of difference situation or that would naturally suggest justice expediency or of diverse respect legislation objects be to classified. purpose legislation must real be Classifications for of illusive; they and not on cannot be based distinctions without a substantial [Citations omitted.]” difference. (Emphasis original.) history legislative of the amended version of 27-505 § purpose deny it is to makes clear of statute crimes, spousal just to it privilege those accused violent as denied, denied, previously had been and continues be incest, bigamy, interspousal those accused of or other offenses. Debate, 696, Committee, Judiciary Leg., Floor L.B. 88th 2d Legislature (Feb. Sess. intended to strike a 1984). sanctity interests balance between societal society protect relationship the need itself marital Debate, prosecute supra. Floor from and violent crime. Ruzicka, 594, 597, 218 we in State v. Neb. 357 As stated (1984): N.W.2d *13 superlegislature not sit as a to review the
This court does legislative acts.... wisdom of intendments It is well established that all reasonable indulged support constitutionality must be acts, legislative including adopted by the classifications singled Legislature. persons If the classification of out legislation arbitrary, is and not and is based reasonable having on substantial differences a reasonable relation to public persons purpose dealt with and the to be achieved, equal it meets the constitutional test of protection. persons
The classification of who commit violent crimes is based on a substantial difference from the rest of the population reasonably purpose related to the of the statute, prosecution which is to enable better of violent crimes thereby protect society. legislation and to better is not special legislation grants special privilege, no nor it does concept process equal protection offend the of due or law.
(4) Seizure of Items argues gave Defendant that the consents he for searches of constitutionally his home and automobile were invalid because expressed attorney he had earlier present the desire to have an giving taped again, before a written or statement. Once we analysis, decide, purpose assume for the of this but not do regard defendant’s claim in this is correct. spend thought house,
We need no on the search of the although search, they some items were seized as a result of that crime, nothing had to do with this and no reference to them was made at the trial. partial gun opera glasses box for the BB and the seized opera
from the automobile were received in evidence. The glasses testimony. were not otherwise mentioned in the Even if jury speculate glasses were to that those were the home, used to observe the victim’s the fact that he had watched entering through her home before it was in evidence testimony Chapman. of Officer He testified that defendant opera glasses, told him he had watched victim’s home. The
[723] therefore, merely were cumulative evidence. partial
The same is true of the dispute box. There is no but gun that the BB used gain defendant to entrance into the properly victim’s home was received in evidence. Admission part into evidence of gun of the box in which the BB had been packaged nothing significance added to the chain of evidence implicating the defendant in the victim’s murder. properly
We have held if admitted evidence exists improperly establish that which admitted evidence also establishes, the receiving error in the inadmissible evidence is ground Fix, not a for reversal. State v. Neb. (1985).
N.W.2d 471 Therefore, opera glasses even if the partial box should evidence, have been prejudice received no there was not which resulted from the error.
(5) Sufficiency of the Evidence
long
It has
been the rule in
determining
this state that in
the
sufficiency
conviction,
of the evidence to
a
sustain
it is not the
province
evidence,
of this court to
pass
resolve conflicts in the
witnesses,
credibility
on the
plausibility
the
determine
explanations,
weigh
or
the evidence. Such
are
matters
for the
if,
trier of
taking
fact. The verdict must be sustained
the view
State,
most favorable to the
there is sufficient evidence to
Lichti,
support
894,
it. State
Neb.
v.
A murder in the first commits with things, person purposely other kills and deliberate another (Reissue Neb. Rev. Stat. 28-303 premeditated malice. § finding just supports a that defendant did 1979). The evidence that.
THE SENTENCE with sentencing panel convened accordance A was 1979), which (Reissue Rev. Stat. 29-2520 provisions of Neb. § mentally is an untreatable determined that first Rev. Stat. 29-2911 Neb. §§ disordered sex offender. hearing conducting a second 1979). After (Reissue 29-2914 to death. panel sentenced defendant imposition of the death Legislature has ordained that degree, and of murder in the first penalty be limited to the crime forth in Neb. only aggravating if the circumstances set then mitigating outweigh the (Reissue 1979) Rev. Stat. 29-2523 § Stat. 28-303 and set forth therein. Neb. Rev. §§ circumstances (Reissue 1979). 29-2519 sentencing panel in this case found two of exist,
aggravating circumstances delineated 29-2523 § namely, aggravating (d), which are set (l)(b) circumstances forth in the discussion which follows. assigns in which
Defendant a number of errors to the manner conducted, hearing findings sentencing claiming it be both imposed, to the sentence panel, and Among claims is the disproportionate. excessiveand his various assignment support specific of error that the evidence does not aggravating (l)(b) (l)(d). either circumstance or the existence of by arguing aggravating no Defendant concludes that since exists, the maximum sentence which can be circumstance only remaining imposed upon imprisonment, him is life authorized sentence. Neb. Rev. Stat. 28-105 28-303 §§ 1979). (Reissue analysis respect
Our reveals that defendant’s contention circumstances is correct. Since to the absence of aggravating inappropriate determination makes the death sentence that law, not, not, existing need therefore do consider under we hearing assigns sentencing the and to the the other errors he to sentence itself. guilty degree defendant is of first murder
The verdict that finding purposely necessity upon rest a that he killed must of premeditated malice. In order to so find and with deliberate and
[725] case,
jury
under
in
the evidence
this
the
first had
find that
killing
went
home
the
of
to the victim’s
with
intention
play
fantasy
her so that he could
out his sexual
with a female
corpse.
finding
Such
a
is inconsistent
the existence of
aggravating
(l)(b),
circumstance
which is defined in 29-2523
§
apparent
as: “The
was
in
murder
committed
an
effort
crime,
identity
conceal the commission of
or
conceal the
a
of
perpetrator
question
the
of a crime.” There
but
the
is no
purpose
concealing
murder was not
for the
of
the
committed
commission of a crime. Nor does the evidence
that it
establish
was
purpose
concealing
committed for the
of
defendant’s
identity. Certainly, any
rendering
killing has the effect of
truism,
incapable
victim
identifying
perpetrator;
of
however,
satisfy
requirement
does not
that the murder be
See,
identity
“to
the perpetrator.”
committed
conceal the
Williams,
State
217
(1984);
v.
Neb.
The evidence victim establishes was rendered unconscious within short time of defendant’s intrusion into her home. It be therefore cannot said that murder was of the aggravating nature in (l)(d), described circumstance as specified heinous, in especially 29-2523: “The murder was § atrocious, cruel, or exceptional depravity by manifested ordinary morality intelligence.” standards sure, forcing
To be into items the victim’s throat and the cruel, so,” strangulation “especially any itself were but not for killing forcible entails some violence toward victim. There is performed no evidence the were acts satisfaction of inflicting pain either physical pain mental or or that existed for any prolonged period of time.
In
aggravating
(l)(d)
present,
order for
be
circumstance
killing
something
entail
method
must
more than the
ordinary
any death-dealing
which
circumstances
attend
Reeves, supra,
aggravating
violence. See
v.
wherein
State
(l)(d)
present
circumstance
was held not to be
where murder
“swiftly
suddenly,”
present
be
was achieved
but was held to
victim,
another
which the
who “did not
murder
die
quickly,”
subjected
penetration
while
to sexual
conscious
*16
227,
contrast, present the sexual acts in the as noted practiced on a woman who was unconscious or in were either whom life had ceased to exist.
Although the method which defendant achieved sexual gratification may accurately exceptionally described as be atrocious, manifesting exceptional heinous and and as intelligence, depravity by ordinary morality standards itself, given killing, the murder the inherent nature a cannot.
DECISION aggravating Since no circumstance as defined in 29-2523 § exists, be, is, hereby the sentence death set must aside resentencing and vacated. The cause is remanded for in accordance with law.
Sentence vacated and cause REMANDED FOR RESENTENCING. J., dissenting part. in Boslaugh, only part I opinion dissent from that of the of the court support finding which finds that the record does not of the sentencing panel aggravating that two circumstances existed. sentencing panel found as follows:
(b) “The murder apparent was committed an effort to conceal the commission of a crime or to conceal the identity perpetrator of the of a crime.” beyond
The evidence does establish a reasonable doubt Beverly Ramspott that the murder of K. was committed to apprehension avoid detection and committed in apparent identity an effort to conceal crime, Hunt, perpetrator of a to-wit: Robert Edward Jr. regard, In beyond this the evidence establishes reasonable doubt defendant Robert Edward Hunt, through rope, nylon stockings, Jr. obtained theft a panties, pellet gun preparation ladies and a for his [sic] only logical assault of the victim. The conclusion for the they theft of these items is that were stolen they possibility might defendant to avoid the later be traced to the defendant. The defendant then went to the Beverly Ramspott, gained home of K. admission and his helpless rendered victim and unconscious. victim, then disrobed masturbated and
ejaculated body pulse her her on and then checked defendant, signs finding pulse, placed of life. The after partially his victim down in the face bathtub filled *17 by strangulation. water. Death was caused defendant wiped premises fingerprints, then free of removed the detection, eyeglasses fingerprint victims to avoid [sic] gathered up remaining paraphernalia his and fled. The only logically conclusion that can be reached is that Beverly identity Ramspott K. was to murdered conceal defendant, perpetrator upon of the assault Beverly Ramspott. K. The evidence establishes this beyond a reasonable doubt.
Therefore, aggravating this circumstance does exist. heinous, atrocious, (d) especially “The murder was cruel, or exceptional depravity by ordinary manifested morality intelligence.” standards of beyond The evidence establishes a reasonable doubt purpose going that defendant’s place where Beverly Ramspott K. resided was to have sexual relations Beverly K. Ramspott. That the defendant was determined to have Beverly sexual relations with K. Ramspott regardless do, of what proved he had to is beyond a reasonable doubt. Hunt, picked
Robert Edward Jr. his victim at random engagement from an announcement contained in the local newspaper. together He put then the items he deemed necessary carry plan, to out his rope, nylon to-wit: The stockings, panties, magazines, pellet gun. and a vicinity home, defendant then drove to the of the victim’s placed premises period under surveillance for a time, gained entry by and then pellet gun. the use Upon entering home, the mobile the defendant bound the hearing victim and plea after her of “Please don’t kill me” panties forced two ladies into the mouth and throat [sic] proceeded strangle and then nylon the victim with a stocking in such a manner so as leave three bruised areas Beverly her Ramspott, K. moved from the neck of
around bedroom, she living determined that was room to pulse, by taking placed her and then her alive still containing body face down in a bathtub unconscious Beverly Ramspott K. to die. The defendant then left water. beyond a doubt. proved All the above was reasonable suffering Beverly Ramspott physical is That K. had beyond a doubt from the inferrable reasonable [sic] strangulation method used evidence of the defendant. Beverly Ramspott killed K.
That defendant indisputable and conclusive. fully as set forth
The facts above summarized and more beyond doubt prove in the evidence a reasonable sexual determined have satisfaction random, pleasure own from a woman selected at with him an death him in he had instrument of to assist carrying did purpose; out that that he make an assault Beverly Ramspott strangled Beverly upon K. and that Ramspott carry purpose. Beverly out K. K. *18 Ramspott died a result as thereof. Rust, 528, Supreme in
The Court State v. 197Neb. and subsequent approved statement “all cases a that first degree capable being murder are of accurately crimes descriptive adjectives characterized one or more of the (in by the employed Id) ‘specially’ but use of the words Legislature required has a ‘exceptional’ and much greater degree usually of these characteristics than present category aggravating in a murder. of This involving...sexual circumstances would include murders imposition suffering.” or the abuse of extreme The sexually Beverly K. Ramspott during abused strangulation. Perry, of v. the course See State 199 Neb. Simants, v. State 179 Neb. and State v. Williams, Beverly murder Neb. 56. The of K. callous, Ramspott was cold-blooded and involved cruel disregard for life. human Williams, in sentencing panel State v. three-judge
The women, supra, found that Williams killed two one of sentencing attempting escape. panel whom was The imposed regard penalty the death in to the of each murders of finding aggravating the women Id circumstance apply Supreme did each murder. The Court affirmed. strangled Beverly Ramspott, Here the defendant K. defenseless, sexually rendered her abused her left her and strangulation. to die from callous, displays
This murder cold-blooded and cruel disregard for human life. This murder also manifests shocking display of and in that maliciousness ruthlessness the victim was selected and at random hunted down. Beverly Ramspott exceptional
murder of K. manifested depravity by ordinary morality of standards intelligence. killing woman, The acts of this defenseless Beverly Ramspott totally senselessly K. bereft any regard for human life. aggravating
This does circumstance exist. conflicting regard There is evidence in record in to both matters, my but opinion these record sustains findings sentencing panel beyond a reasonable doubt. great
The defendant went to pains an effort to avoid leaving crime, fingerprints, evidence at scene of the such as identify fantasy which would require him. His did not that the act; victim necessary be dead only at time of his sex it was helpless subject she be whatever he wished do. psychiatrist request who examined the defendant at report defense counsel in his as stated follows: quality There is considerable planning ritualistic episode, of the assaultive with evidence of the defendant’s expectation that certain fantasies would be fulfilled. subduing These apparently had to do with the controlling female, of a who would then forced to be being I accede to his needs without able to leave him. am specific evidence, psychiatric aware of and there is no no evidence, kill to indicate Mr. Hunt intended to *19 victim, although significant he did concern for not show obviously danger placed which he her. in sentencing hearing At the this witness testified as follows: Doctor, clarify question of Mr. the last Smith’s Q. did you aware and your were examination
a minute. From Mr. Hunt to an intent of conclusion about come to some Beverly or control render unconscious either kill or in immediately prior to the events Ramspott as it occurred you question, are not?
A. Yes. — find, Doctor, you Did you find that he had an DidQ. not he went as to whether or you opinion have an or do to render intent to kill or intent that home with the into Beverly Ramspott? incapacitate and to unconscious Yes, I do. A. finding regard? your What was in that
Q. interested in My that he was far more opinion A. unconscious, control, incapacitating, and not rendering interested, all, killing an individual. very if at Doctor, your about the defendant’s statement Q. victim, controlling rendering her primary interest her, killing just so I lack of interest in unconscious and understand, he killed her you saying whether or not are Secondary? unimportant to him? secondary. he cared I don’t believe
A. I believe it was But, going I very the time while the act was on. much at — believe that he was believe I have no reason to don’t consciously trying kill at the time. her beyond support finding There is evidence which will gag in the doubt that the defendant inserted reasonable her; strangled that he her until she victim’s mouth to silence unconscious; thought alive and that he she was still became shortly placed her face down in the tub until sometime before water. If the victim died as a result of partially filled with throat, being into her instead of panties forced almost tub, drowning not the cause of death intended in the that was the defendant. exceptional depravity by murder did not manifest
If this morality intelligence, I am at a loss to ordinary standards of statutory killing conform to the imagine type what of a would description. judgment district court in all affirm the
I would *20 respects. Grant, JJ., join
Shanahan
in this dissent.
alleged
mentally
Ely,
In re Interest
of Matthew
to be
ill
dangerous
person.
appellant.
Nebraska, appellee,
Ely,
State of
v.Matthew
Dennis R. Lancaster Public Brennan, appellant. Sean J. for appearance appellee.
No C.J., Krivosha, Boslaugh, White, Hastings, Caporale, Shanahan, Grant, JJ.
Grant, J. provisions is an appeal This under of Neb. Rev. Stat. (Reissue 83-1043 1981) from an order the district court for § County affirming Lancaster an order of the mental health County. Ely board of Lancaster The board had found Matthew mentally dangerous meaning ill within the person be a (Reissue 1981) Neb. Rev. Stat. and committed him to 83-1009 § days. Department up of Public Institutions for After a