*1 inеquality of taxation. in unconstitutional it results It is to be argue however, did noted, the defendants presentation court, oral in their this issue anything to indicate that in the record nor is there copy Attorney assigning on the was served this issue brief filing days of the brief within 5 General 8.a.2.(3) R. Neb. Ct. Court. See properly being (Rev. 1977). so, issue is not This remain- that defendants’ We also determine before us. ing assignments without merit. error are attempted
Accordingly, con- we conclude that veyance Water Conser- Soil and the assets of the Otoe was void. trustees District vation imposed Equity requires trust be a constructive possession property personal of the defend- to Nemaha. We time as it is returned ants until such question property quiet real title to the also District. The defendants Resources Natural Nemaha right retain, or as individuals no to own have property personal held under the trustees, the real and agreement, purported to allow them to retain trust unjust For to an enrichment. would amount said assets judgment herein, of the District stated the reasons hereby is, be, affirmed. must Court
Affirmed.
Nebraska,
appellee,
appellant.
Carey
Moore,
Dean
Thomas M. Public De- Stanley Krieger appellant. fender, and A. for Douglas, Attorney General, Paul L. Kirk J. appellee. Brown for Krivosha, C.J., Boslaugh, McCown,
Heard before Clinton, Brodkey, White, Hastings, JJ. Clinton, J. Carey age defendant, Moore, 22, Dean
charged degree with two counts of first murder as (1) August having follows: On killed Reuel Eugene perpetration attempt Ness, Jr., Van in the of or perpetrate robbery, August (2) 27, 1979, to having Maynard Helgeland perpetra-
killed D. in the attempt perpetrate robbery. tion waiving After by jury, a trial defendant was tried guilty court and found on both counts. Pursuant to the provisions seq. (Reissue §§ of Neb. Rev. Stat. et 29-2520 1979), sentencing hearing May 22, 1980, was held on judges, panel including judge. before a of three the trial 20, 1980, was, count, On June the defendant on each penalty sentenced of death electrocution. *3 The case has come to this court for automatic review. assigns following alleged (1) The defendant the errors: providing capital punish- The ment are unconstitutional statutes Nebraska for
because the death sen- per prohibited by tence is se unconstitutional and the eighth and fourteenth amendments to the U.S. Con- Rights I, stitution Bill and article of the of the (2) Nebraska Constitution. Neb. Rev. §§ Stat. 29-2519 through (Reissue 1979), providing 29-2523 the condi- penalty may imposed, tions under which the death they provide are unconstitutional because do not for jury aggra- a determination of the existence of the vating mitigating and circumstances described in the appropriateness penalty. the statutes and (3) of the death seq. unconstitutionally Sections 29-2523 et are vague appellate interpretation indefinite, and and ambiguity. (4) sentencing has not removed this panel The judges properly apply did not to the evidence mitigating in the case the circum- 460 interpretations by the statute and as defined
stances panel (5) in review of erred its of this court. penalty was not the death in which cases homicide by imposed, the to be similar to the claimed panel in bar, limited its review because case accordance opinion Williams, with our penalty (6) The death N.W.2d Neb. mitigat- it limits the because is unconstitutional statute sentencing by ing considered which can be factors capital (7) sentence in a A conviction tribunal. case cannot beyond apрears it unless be sustained factfinding of the no error doubt that reasonable any way to the determination of trial contributed guilt. they (8) because are unconstitutional The statutes beyond prove require a rea- the State mitigating do not do not exist. factors sonable doubt providing (9) sentencing phase provision of the statutes judge may either the be heard before sentencing panel presided trial or before a who of three stitutional at the judge, including judges, the trial is uncon- guidelines provides no for the because sentencing by is to be done of when determination single judge (10) panel. The sentence of death imprisonment. be reduced to life and should is excessive judgment sentences. We affirm The defendant did during any not introduce evidence significant Therefore, there is no trial of the case. guilt. The defendant confessed оn the issue of conflict killings taped interrogations two of the commission police, in evidence. It is which were introduced involuntary. confessions were claimed that these necessary however, evidence, An outline assignment (4) and in order that we a discussion may perform determining independent function of our particular imposition death of this whether *4 statutory appropriate penalty standards, under the imposed penalty is not in an to assure death and arbitrary capricious manner. cabdrivers, the modus were of the victims Both operandi August 20, in each case was similar. About purchased handgun 1979, the defendant with which acquired gun the murders were committed. He by purchasing pawned it from a cabdriver who had gun. together The defendant and the seller went pawnshop gun redeemed, where the was money furnishing redemption for the paying gun the seller an additional $50. then test-fired. quote findings
We now from the made the sen- tencing panel findings fully order, in its are supported by uncontroverted evidence: “The defend- statements, ant’s own in his confession to Officers Thompson custody O’Donnell and while in at Charles City, Iowa, indicate that these crimes had been in the planning stage day for at least a or two before the Apparently evening prior Van Ness homicide. on the murder, to the Van Ness the defendant had called a telephone number of cabs from a on Farnam Street booth somewhere in the downtown Omaha area to quickly respond see how defendant each would to his call. The vicinity
then hid somewhere in the to await arrival, each cab’s at which time he checked the cab to determine whether the driver would abe suitable young, victim, he., not too sinсe the defendant stated that it was easier for him to shoot an older man rather younger age. evening than a of the Van Ness man nearer his own On the plan
homicide, the defendant’s was to call one cab at a time from restaurant, the Smoke Pit responded and, if the old,’ driver who ‘wasn’t too just identify defendant would himself as the fare for which the cab had been summoned. When Mr. August 22, Van Ness at the arrived Smoke Pit on the defendant determined that this was the driver who would be robbed and shot because ‘he wasn’t too young’. pattern August
“A similar of events unfolded on Greyhound depot 1979. The defendant went to the Bus evening, at 18th and Farnam Streets Omaha that *5 462 parked
and, with an driver he saw a lone cab older when depot, got he into taxi stand outside at the cab area. to take him the and directed the driver to Benson According particular defendant, cab to were were both because there no and driver selected decreasing time, at the thus cabs at the taxi stand other the because then being identified, chances of the defendant’s driver an older The was man. defendant previously discussed, that, he stated as had planned to rob and the driver ahead time shoot In his confessions whichever cab he selected.” killed stated that he each of the victims in identify not be that the victim would able to him order the robber. as body found of Van was at Dam Site 16 near
The
Ness
August
morning
body
22,
on the
The
Omaha
1979.
Helgeland was
in his
found
cab
Omaha about
August 27,
on
1979. The
7:30 a.m.
defendant was
persons getting
positively
of two
as one
identified
into
Van Ness
at
the Smoke Pit restaurant
cab
morning.
person
Omaha earlier
that
other
younger
positively
as his
brother. He was
identified
being
as
fishermen
the cab
Dam
identified
slaying,
16 befоre the
when
Ness
Site
Van
asked
place
in order to take the defendant
directions
go.
gun,
where
at the dam
he wished
identified
slayings,
by expert
as the one used in the two
witnesses
possession
in the
in a
was found
defendant’s
stolen
apprehended
when the defendant was
automobile
Iowa
August 29,
1979.
The contention
the defendant
death
penalty is in all circumstances
unconstitutional
constituting
punishment
cruel and unusual
has been
rejected by
Court and this court
U.S.
respond
We need
on a number
occasions.
citing
pertinent
argument other
than
some of the
precedents. Gregg Georgia,
153,
428
96
v.
U.S.
S. Ct.
(1976);
2909,
Florida,
L. Ed.
v.
49
2d 859
Proffitt
(1976);
2960,
242,
49 L.
428
96 S. Ct.
Ed. 2d 913
U.S.
Rust,
(1977);
528,
State v.
197 Neb.
stitutional
that the
require
U.S. and the Nebraska
that,
Constitutions
penalty may
constitutionally
in order that the death
imposed,
jury
per-
make the factual determinations
*6
taining
aggravating
mitigating
and.
circumstances.
expressly rejected
We have
that
contention
State v.
Simants,
(1977).
549,
197 Neb.
in the ishment, sentencing experienced judge in able to is more trial since jury, better and therefore than analogous imposed impose to those similar sentences cases.” asserting contention, that the third The defendant’s mitigating circum- definitions vague and indefinite are so in the statute stances to be court by this unconstitutional, addressed has been clarify, refine, which of cases in a series arguments. response to such definition restrict supra; supra; Rust, v. Simants, v. State State v. State Stewart, 544, supra; Holtan, 250 197 Neb. v. State Otey, supra; (1977); v. State v. State 876 N.W.2d Harper, supra. supra; Hochstein, v. Anderson and general § 29-2523 meets scheme clear that It is the 408 U.S. Georgia, requirements in Furman v. down laid L. Ed. S. Ct. 2d supra. Georgia, supra; Florida, Gregg v. See, Proffitt only specific argu- address at this time We need in this case. The makes the defendant ments assignments overlap fourth, third, fifth defendant’s together. them will discuss and so we necessary make some reference this time to It is findings sentencing panel’s order and analysis panel made a detailed therein. evidence, provisions 29-2523, the decisions §of *7 interpreting It statute. considered this court of each statutory sеparately provision made factual and findings upon adduced at trial the evidence based sentencing hearing by both the State and and analysis, made basis of On the defendant. aggravating findings specific and which to which including case, mitigating existed this circumstances statutory provisions applicability which are of the the disjunctive. necessary, to the later, make reference will where We analysis. point, it will suffice At of that details to findings. summary quote panel’s affirmative sentencing panel specifically that, “The regard finds with ag- Ness, Jr.,
to the murder of Reuel Van gravating (b) (d) circumstances and have been found beyond By way to exist fication, a reasonable doubt. of clari- panel specifically more finds that aggravating (l)(b) second clause of (‘ circumstance identity . . . committed ... to conceal the of the perpetrаtor’) portion aggravating and the latter (l)(d) (‘ exceptional circumstance . . . manifested depravity by ordinary morality standards and intelligence^)] applicable are in this case. regard Maynard Helgeland,
“With to the murder of sentencing panel specifically aggravating finds that (a), (b), (d) circumstances beyond have been found to exist specifically, a reasonable doubt. More panel aggravating finds that the second clause of (l)(a) (‘The circumstance . offender . . has a substantial history terrorizing of serious assaultive or criminal activity’) applicable Helgeland homicide, days based on the murder four earlier of Reuel Van Ness, aggravating addition, Jr. In the second clause of (l)(b) portion aggravat- circumstance and the latter ing (l)(d) applicable Helgeland circumstance are they homicide, as werе to the Van Ness homicide.” panel generally previous, also reiterated its specific findings statutory mitigat- more ing ground that none of the family existed, factors but stated that “the back- upbringing of the defendant are entitled to mitigating consideration as a factor . . ..” It found that outweigh factor did circum- stances. vagueness statutory
The defendant’s claim of in the language deficiency appellate refinement of language 29-2523(l)(d), definition is directed at the which states: “The murder of § especially heinous, exceptional depravity atrocious, cruel, or manifested by ordinary morality intelligence.” standards of argues holding
The defendant that under the Godfrey Georgia, U.S. Court in 446 U.S. *8 466 (1980), the L. Ed. 2d 398 above 100 Ct. 64 S. interpreta-
statutory language, the even limited vague imprecise, per- court, thus of is tions mitting this penalty. imposition death a standardless Godfrey Georgia, v. now to an examination of We turn Georgia jury supra. law, if finds the de- the Under guilty, the court at a it is instructed fendant separate sentencing phase of the trial the law of jury mitigating aggravating circumstances. The part to a the court. As then recommends sentence specifically it must state the that supporting recommendation circumstance or circumstances beyond a finds exist reasonable doubt. which it beyond jury in case a reasonable doubt that found “ outrageously murder ‘that the offense of was or wantonly vile, 446 at 426. horrible inhuman.’” U.S. jury’s accepted recommendation, court trial Georgia Supreme Court of affirmed. The U.S. judgment Supreme insofar as it Court reversed penalty. levied death paraphrase pertinent por- quote
We or now from Godfrey opinion: Georgia law, tions “Under may person be cоnvicted of murder sentenced beyond if is found reasonable doubt that death it wantonly outrageously vile, ‘was horrible the offense depravity torture, in that involved or inhuman battery aggravated mind, or an victim.’ Ga. 27-2534.1(b)(7) (1978). Gregg Georgia, In v. Code statutory ag- 153, the held Court that U.S. gravating (§ (b)(7)) is not unconstitu- circumstance argument Responding on its face. that the tional language provision capital is ‘so broad that any imposed punishment case,’ could murder joint opinion said: “ any arguable course, is, murder involves ‘It battery. aggravated depravity of mind or an But this way, language not be construed in this and there need no to assume Court reason Georgia open-ended adopt will an construction.’ such [Citation omitted.]” U.S. 422-23. Godfrey Georgia, supra, *9 guilty
found death the and sentenced to for murders of Briefly, his wife and mother-in-law. the circumstances of the crimes were that the defendant and his wife were having marital When difficulties. he her threatened family knife, with a she left home. the She com- hearing divorce, an for menced action and a court hearing, defendant, was set. Before the the on several point occasions, his asked wife At return. some during period this in she with moved her mother. The petitioner terfering actively believed that the mother in- was day
with a reconciliation. On the
before
crimes,
the
the
wife
defendant’s
called him. She said
impossible,
allegedly
reconciliation was
and
demanded
proceeds
planned
all
from the
sale of their
A
home.
telephone
place
similar
conversation took
about an
allegedly
hour later. The wife at
time
stated that
position.
supported
telephone.
her mother
hung up
her
The wife then
shotgun
the
Defendant obtained a
and wаlked to his mother-in-law’s trailer
He
home.
young daughter
wife, mother-in-law,
saw his
playing
through
killing
window,
cards.
fired
a
He
his
11-year-
wife. He entered the
trailer
struck his
daughter
gun
old
with the
barrel and then shot his
instantly
mother-in-law.
of
Both
the women died
from
gunshot wounds to the head.
affirming
whether,
“The issue now before us is
in
imposition
present
the
the
of
sentences of death in the
Georgia Supreme
adopted
case, the
Court has
a
such
vague
(b)(7) aggravat-
§
broad and
construction of the
ing
Eighth
as to
circumstance
violate the
and Four-
teenth Amendments
to the United States Constitu-
us,
tion.”
instructions.
meaning
any
(b)(7)’s
concerning
ance
jury’s interpretation
(b)(7)
fact,
§of
terms. In
speculation.
only
subject of
can
be the
sheer
imposition of
and unchanneled
“The standardless
in the uncontrolled discretion of
death sentences
basically
way
jury
in this case was
no
uninstructed
those
the affirmance of
sentences
cured
Georgia Supreme
law that
Court. Under state
judgment
court
may
death
in-
until
has
not affirm
dependently
the evidence
record
deter-
assessed
*10
judge’s
supports the trial
mined that such evidence
finding
jury’s
of аn
circumstance. Ga.
(1978).”
27-2537(c)(2)
The in n. stated 432-33: “The sentences exclusively (b)(7). of death in § this case rested Ac- cordingly, we intimate no view as to whether or not the petitioner might constitutionally have received the Georgia not, same sentences on some other basis. doas does multiple aggravat- States, some make murders an ing circumstance, as such.” Supreme short, the U.S. Court’s vacation of the Godfrey upon: (1)
death precise sentence rested Lack of jury impreciseness instructions to the jury’s findings. (2) Supreme Failure of the Court Georgia previously to follow its own established interpreting 27-2534.1(b)(7). (3) criteria apparent § The court’s independently
failure to review the factual findings jury. (4) of the trial court and As the U.S. Supreme causing noted, Court the victim was trauma,” actor “extreme emotional and the crime was by overwhelming passion. (It motivated should be noted Godfrey quite the factual circumstances ferent from the one before are dif- us.) (5) jury was instructed on the restricted definition of 27-2534.1 (b)(7), adopted Georgia Supreme which had been Court. holding Godfrey of the U.S. Court in
clearly does not control in the case before us for a sentencing panel First, number of reasons. in the very specific findings by way case at bar made analysis meticulous application evidence and careful *11 prior
of the statute as well as this court’s interpretations panel thereof. The is not an unin- jury. imposition Second, structed penalty of the death wholly upon in the case before us did not rest finding aggravating a stance of the existence of circum- (l)(d) 29-2523, of which we will in discuss 470 it is the heart of defendant’s later since
more detail sup- argument. Instead, is sentence in this case by ported cir- of several the existence completely supported uncontroverted cumstances Third, circumstances the factual evidence. quite present are different from in case
murders our Godfrey, Fourth, as we have discussed earlier. those in forth, does, set review and as we hereafter this court findings. panel’s independently None confirm the leading Godfrey in exist in to reversal of the factors this case. vagueness. now turn the defendant’s claim
We
Godfrey
in
did not overrule
The
its
Court
U.S.
Georgia,
holding
Gregg
previous
v.
428
U.S.
2909,
S. Ct.
torture, or the of extreme Stewart, 497, 528, v. 197 Neb. 197 Neb. 250 250 exists. State (1977); Rust, N.W.2d 849 State y. sentencing panel (1977). case the
N.W.2d 867 found aggravating circumstance did not exist. pertains agree. second circumstance state We supra, Stewart, of the actor. In v. we of mind State indicates a situation “where the second instance said depravity obviously apparent an extent as to to such morality intelligence” offend all standards court), (syllabus Holtan, of the (1977), it indicatеs a state of N.W.2d 876 Neb. regard senselessly any “totally bereft mind sentencing (syllabus court). for life” human
471 apply. panel the second found circumstance did We agree following that circumstances exhibit a exceptionally depraved totally state of mind senselessly regard (1) for life: bereft human coldly planned part here were as a murders robberies. conclusion that the murders were of the the clearly (2) supports The evidence repetitive, i.e.,
to the defendant intended to continue on his selected required. long (3). course conduct so as his needs of. The victims were characteristics which made on selected the basis certain easier for the defendant namely, ages. them, to shoot their His unstated con- years clusion that in a human life the middle is less younger than valuable life. wholly upon
The sentence in this
doеs not
case
rest
findings
(l)(d)
with reference to circumstance
sentencing panel
§
independently
found,
29-2523. As the
and as we
independent aggravat-
find, additional
ing circumstances exist. In both the Van Ness and the
Helgeland murders,
the crimes were
to
committed
identity
perpetrator. 29-2523(l)(b).
conceal the
§
acknowledged,
This, Moore
was one of his
for
motives
killings.
Helgeland
yet
In the
murder there existed
aggravating circumstance,
a third
a substantial
history
violence,
as demonstrated
the Van Ness
days
29-2523(l)(a).
murder a
few
earlier.
The sen-
tencing panel carefully analyzed this
in
element
prior interpretations.
our
accordance with
State v.
supra;
supra.
Rust,
Holtan,
v.
State
In Holtan we
“‘History’
546,
said at
“The July analyze 22, 1978, review and all cases after involving on or criminal homicide committed after analysis April 20, review and shall examine Such 1973. including mitigating (1) the facts and (2) charges (3) circumstances, filed, crime (4) convicted, was the sen- for which defendant tence imposed. updated Such review shall be as new § occur.” 29-2521.02. criminal homicide cases upon Supreme appeal, shall, Court determine “The involving propriety in each case sentence by comparing with homicide such case criminal previous involving the same or cir- cases similar imposed greater shall than No sentence cumstances. imposed or in other cases with same similar those any may Supreme Court reduce circumstances. it with finds not be consistent sentence 29-2521.04, 29-2522, sections 29-2521.01 § 29-2524.” 29-2521.03. provide re- shall all records
“Each district court by quired Court in order to its conduct analysis pursuant to sections 29-2521.01 review to 29-2521.04, 29-2522, and 29-2524.” 29-2521.04. supra, Williams, we that L.B. held In State v. only requirеd in review cases which the this court to guilty degree murder, of first found defendant was (1979), Welsh, 249, 275 N.W.2d 202 Neb. State procedure applicable we held that the is in this court only penalty imposed. when death is argues inadequate, now and, Legislature that our reviews been have brief,
in his states: “The concern of the Nebraska insuring part, directed, in that there uniformity throughout sentencing. is death Supp. Obviously, 29-2521.01, Section R.S. 1978. to murder convictions is to only first-degree consider large group from
exclude determination a of homicides by being charged in which defendants avoided death first-degree with lesser crimes than murder or pleading charges, prosecu- to lesser other acts interpreting charging torial discretion facts. It is a hollow review indeed if these cases are excluded from review. It becomes cruel facade if a defendant’s against only capital case is reviewed other cases and against might lesser homicides which involve the same or similar circumstances.” supra Williams,
In State v. 287 N.W.2d at interpret language literally we said: “To of L.B. 711 problems. would create insurmountable constitutional disposition unnecessary here, In view of the made to discuss constitutional issues.” We did not there problems except elaborate the constitutional *14 they to indicate that relate to the constitutional powers government, division of between the branches of specifically prosecutor prosecutorial mentioning discretion. The obviously
is a member of the executive government. necessary branch of We now find it why application delineate the reasons a literal unconstitutionally upon L.B. 711 would encroach judicial doing, function. so we will define precisely may more the limits within which L.B. 711 constitutionally applied. underlying legal principles We first state the Const, application. then illustrate their 1,§ II, Neb. art. provides: powers government “The of the of this departments, state are divided into three distinct legislative, judicial, person executive and and no or
474 being departments, persons of these one
collection of
properly belonging
any power
to either
shall exercise
expressly
except
others,
directed
as hereinafter
of the
powers,
permitted.”
under the
division of
A similar
or
by implication.
Constitution,
is held to exist
U.S.
Today
What It Means
The Constitution and
Corwin’s
(14th
1978);
6-7,
H.
& C. Ducat
ed.
Chase
204
Hampton
States,
394,
276 U.S.
48
Co. v. United
&
Hayburn’s
(1928);
Case,
348,
2
L. Ed. 624
S. Ct.
72
(1792).
409,
409,
courts. The
rights
legislation,
subsequent
divest
which have
by
judgment. City Wayne v.
of а
vested
virtue
(1952).
Adams,
297,
It cannot
We must examine constitutional of the foregoing legislative purpose. examining prosecu- necessity discretion we torial would of have to in- dependently gather gathering of evidence. The evidence judicial is not a function but one of the executive. charges We would then determine what we think should Again, have been of the the chances of a filed. is an executive function prosecutor. judgment We would make about against acquittal,
conviction an again weigh an еxecutive function. We would need advisability plea bargain of a to secure a con- charge likely viction on a lesser in order to avoid acquittal charges. clearly of all These are all executive judicial and not functions. It must be borne mind all homicide appeals following result to this court. The .convictions Legislature’s judicial illustrates intrusion into the person charged function under L.B. If a 711. with degree murder degree the first but convicted a lesser homicide, applied if L.B. 711 is to literally, purposes reviewing then, we would for disregard factfindings jury us, case before “analogous” procedure in the so-called case. Such a constitutionally objectionable would be for a number of require First, reasons. it would this court to find facts Secondly, in a case not before it. it would constitute an Legislature attempt factfindings to make the one case determinative of the sentence in another case plain principles on review. It is earlier that under the we have legislation attempts cited, judicial achieve such results is an intrusion on the contrary separation powers function, doc- *16 II, 1. trine, § article and thus violates would be to unconstitu- of L.B. 711 Another effect powers tionally appellate of this review restrict Const, legislation I, 23, as § art. Neb. court under attempts apply by requiring it to this court bind to “analogous” imposed in a in some case sentences applying such a standard It is clear that court. district right independent an to a defendant’s would restrict I, 23, of the Bill § article court under review this Rights Constitution. This section our Nebraska of provides: of felony shall all of the defendant “In cases appeal right Court; have the super- opеrate appeal capital as a shall cases such stay death, of the sentence to the execution sedeas Supreme Court.” further order until Upon 711, it is clear the review of L.B. this closer judicial attempts Legislature to exercise in that act Constitution. violation of the Sections function in 2 and tion applica- in their must be restricted 3 of L.B. 711 only comparison those in this court of cases to a in the District Court has been in which the degree. murder in the first convicted of with is coextensive our L.B. 711 thus construed duty Constitution, under our own under the federal statutory provisions Constitution, under state for automatic to in the death
review determine penalty us whether come before cases which applied, properly provisions are 29-2523 arbitrarily capri- penalty not is the death to assure ciously Georgia, imposed. 238, v. 408 U.S. Furman Godfrey (1972); 2726, Ed. 2d 346 v. 33 L. S. Ct. 92 Georgia, Ed. 100 S. Ct. 64 L. 2d 446 U.S. (1980); Simants, 549, 250 N.W.2d 197 Neb. State v. 398 course, will, make continue to We comparisons. will continue to Each District Court previous court, order, with our to in accordance furnish records of all convictions of administrative appealed degree this court. murder first or the State the defendant If either § 29-2521.04. sentencing judge wishes call to the attention of the sentencing panel, purposes comparison, or the facts and for the any degree
sentence case of first appealed court, homicide which has not been should be done at the to this sentencing hearing by means of proper for which admissible is laid. evidence foundation This, course, mean, in will most cases where challenged, producing the fact is not admitted pertinent portions the official records or thereof of the case which is to bе called to our attention. sentencing hearing
At the
in this case the defendant
introduced an exhibit
related to the case of State
Henry Floyd
Cecil
the District Court for Hamil-
County,
unappealed
ton
Nebraska. This is one of the
Williams,
cases reviewed
this court in State v.
*17
Although
specif-
Neb.
isolated case which the death imposed, not, should have been but was governs capital becomes the standard which all cases before this court. just two-page
In the exhibit referred to above is a typewritten summary, obviously prepared by counsel, among things following which statement: “Source of name of the other contains the by Information,” followed prosecutor and defense in counsеl summary purports case. The otherwise to show Floyd, previous (felony to the Nebraska homicide robbery), serving murder term of life in the course of a was imprisonment for homicide in Indiana and pled guilty had to three homicides Florida. We again transcript have reviewed the official of the Floyd case. Proof was made in that case of the only Indiana conviction and none of the circumstances by only of the Indiana case are shown the record. The pertinent sentencing other evidence adduced at the hearing testimony mother, was the of the victim’s requested penalty imposed, which she the death not be Floyd, testimony he of the defendant
and the stated he the to kill the victim but that had not intended struggle gun discharged in the when course weapon away attempted from him. to take the victim The history of mental illness. аlso recited a ruling sentencing judge, Floyd case the objection investigation presentence upon an only report, into consideration stated he would take properly therein which were before those matters him, i.e., were as other murder convictions insofar proved proper concerned, evidence those that were testimony hearsay of defense counsel and and not the sentencing judge prosecutor. The did not make detailed mitigating findings circum- as regarded imposition apparently He stances. penalty sentence to the Indiana being imposed He within his “discretion.” imprisonment, to of life be served consecutive any
life sentence consecutive to might elsewhere, serve life other sentence the defendant allowing for no on the Nebraska sentence credit any Thе court directed that the time served elsewhere. Indiana and that “holds” be be returned to defendant placed states’ sheriffs It any as well as other Indiana sheriff in which the defendant was wanted. may been been be that the death sentence should have proof proper imposed in Floyd case had impossible made, limited from the but such a determination The record showed no record before us. alleged competent proof of the Florida homicides surrounding them. or of the circumstances Nor *18 surrounding prove any proof the there of circumstances ag- an Indiana case. If the State wishes gravating ofthe defendant in circumstance a conviction by copies states, do authenticated of other must so course, unless, of the fact admitted. such conviction reading Godfrey not lead us to an under- Our does unappealed judg- standing isolated, trial that court an other which all sentences ment is to be the standard judged. purpose Court’s must U.S. be penalty that was to mandate the death not be case arbitrarily capriciously. The Court inflicted duty defining upon imposed the states penalty under which death should circumstances way imposed in such a as to obviate “standardless” interpreted 29-2523, as and limited sentences. Section by guidance” “specific court, this does afford and detailed imposition sentence makes “rationally process imposing for a reviewable the Georgia, Godfrey of death.” 446 U.S. sentence 420, 428, S. L. 100 Ct. 64 Ed. 2d 398 argues sentencing panel The defendant that finding mitigating “(2)(a) factor, wit, erred that .to significant history prior The offender has no criminal activity,” did not exist. The record disclosed that the previous felony defendant hаd conviction, one auto years theft, for which he served a term of 1 2to Complex, the Nebraska Penal and Correctional forged having approximately he that admitted $1,100 prior in checks to the crimes involved here. The panel juvenile also mentioned that he had record argues of lesser offenses. The defendant that “con- sideration” particular the latter was error. We hold that this
juvenile disregarded. record should be any, juvenile What, if offenses in a record should category aggravating be considered and under what mitigating obviously depend upon or factors will Nonetheless, nature of the act. the commission of two support finding felonies cannot there is no significant prior history. any event, criminal mitigating factor, exist, if even it were said to does family not, history, even when considered with out- weigh factors.
The records
convictions since State v.
(1979),
Williams,
205 Neb.
tional, determining may is no sentence. There in be considered provides in 29-2521 Section for this contention. basis any may presented part: “[Ejvidence to be matter sentence, to relative shall court deems that the relating any or include matters mitigating in section 29-2523. set forth circumstances Any the court deems to have evidence such may Holtan, probative received.” value (1977), specifically we 250 N.W.2d 197 Neb. mitigating factors held that circumstances the consideration was not limited the statute. Evidence only probative. mitigation be relevant and need provision complain cannot of a so ob- The defendant viously open ended the accused’s favor. assignment is as follows:
The seventh defendant’s capital in a case cannot “A conviction and sentence beyond appears, a reasonable unless be sustained fact-finding con- doubt, no error in the of trial that any way jury’s determination of ¿n tributed argument point guilt.” is The defendant’s literally no make sense. The defend- so convoluted as to factfinding of error in the made no claim ant has leading guilt. process We to the determination and found none. have examined the record .The guilty beyond any doubt all. defendant eighth assignment asserts that defendant’s beyond proving a reasonable State has the burden mitigating no exists. He cites factor no doubt authority proposition. seems to None exist. for this sup- claim that the State is no evidence or There pressed any any If there were favorable evidence. mitigating shown, other than those factors position to best know and reveal factors. those in this case is affirmed. death sentence
Affirmed por- J., C.J., in that concur White, Krivosha, affirming opinion conviction, and tion of the portion opinion affirming dissent from imposition penalty. We death would have sen- appellant tenced to be confined for the balance his natural life. *20 Jay Sullivan, appellee, J. Clay County Hajny, Clerk, al., appellees,
Janet et Intervenor-appellant. Nebraska,
Paul L. R. appellant. Schaaf for Jay appellee.
Dan Baird J. Sullivan for Krivosha, C.J., Boslaugh, Heard before McCown, JJ., Clinton, Brodkey, Hastings, Ronin, Judge. Retired District Hastings, J. plaintiff, Jay attorney Sullivan, J. an and an
appointed Clay County member Health Mental petition seeking declaratory judgment Board, filed a that, as such board employee member, he is not an Clay County, Nebraska, and therefore should not have security had social deductions made from the warrant drawn for his services. State of Nebraska was