*1 J ess Palmer, appellee, Nebraska, also Charles State of Kirkpatrick, Tinsley, R. also known as J. Charles known as appellant.
John Wolf and David Palmer, pro Charles Jess se. General, Brown, Attorney J. Kirk Spire,
Robert M. and appellee.
Krivosha, Boslaugh, White, Hastings, Caporale, C.J., Shanahan, Blue, JJ., and and D. J.
Per Curiam. defendant, Palmer, appeals jury
The from a Charles Jess finding guilty felony verdict him murder under Neb. Rev. (Reissue 1985), imposed and from a sentence 28-303(2) Stat. § by three-judge ordering to be court Palmer executed for provisions crime in accordance with of Neb. Rev. Stat. seq. (Reissue et This case has twice before 1985). 29-2521 §§
[285] Palmer, 313 See, this court. been to Palmer, Neb. I); (1981) (Palmer N.W.2d are as The relevant facts (Palmer II). (1983) N.W.2d 281 follows. murder, the time of August of 1977 to
From Rock, Guide and worked near and his wife lived victim, son, Jess, July was born 1978. Their Nebraska. Zimmerman, shop in his home operated a coin
Eugene Island, Grand Nebraska. the victim occurred contact with
The Palmers’ first telephoned Palmer Zimmerman of 1978. Mrs. October coins and meeting. The Palmers intended to offer arranged a Palmers, baby, their drove to objects with for sale. silver house, in the truck and the defendant waited the Zimmerman In late December of 1978 negotiated Mrs. Palmer the sale. while additional Zimmerman and offered to sell Mrs. Palmer called baby the defendant and the and silver. On this occasion coins In into the Zimmerman residence. accompanied Mrs. Palmer again went into the residence February of all three late baby spoons. Zimmerman some silver while Mrs. Palmer sold buying be interested in two or When she asked him if he would bands, he wedding responded Zimmerman gold three 5, 1979, Mrs. Palmer returned to sell On March would. wedding rings. accompanied The defendant
Zimmerman the parlor walked around the office and her into the house and conducted adjacent business area while Mrs. Palmer to the Zimmerman if he would be Mrs. Palmer asked business. he buying antique rings. replied He that would two
interested them, meeting arranged a for the next afternoon. look at defendant, murder, 6, 1979, day On March Palmer, baby the Zimmerman house and their arrived at Mrs. rings Zimmerman examined the p.m. 3 and 3:30
between tell that her stones were how he could showed Mrs. Palmer buy settings He told her he would rather than real. imitation they gold. rose from proved were Zimmerman from her if a test *4 around, jar desk, picked and a of solution from turned his Palmer, suddenly According Mrs. the defendant cabinet. was turned and struck
lunged while his back at the victim dislodged. Zimmerman’s Defendant glasses were face. victim’s struggled, to the Zimmerman Zimmerman was thrown and floor, money and defendant demanded from him. The evidence that, time, years old, 6 feet 7 shows at the defendant was tall, weighed approximately pounds; and the victim inches old, tall, years weighed was 59 5 feet 11 and inches pounds. bleeding. face approximately 135 Zimmerman’s hands, The defendant bound Zimmerman’s lifted him to his feet, up and him forced the stairs. Mrs. Palmer testified that the upstairs remained alone with victim for 15 upstairs. Upon entering she minutes before was to come bedroom, bed, lying she Zimmerman saw on a his hands and tied. proceeded upstairs. feet The defendant to search the He told Mrs. Palmer to watch Zimmerman. defendant then During went and remained there downstairs for 20 minutes. this time, the complained pain, victim to Mrs. Palmer stomach asked, “Why you doing and are this to me?” Zimmerman then get asked Mrs. Palmer to him some medicine from his bathroom, which she did. upstairs, wearing gloves,
The defendant went back and sent Mrs. Palmer downstairs. She waited downstairs for him for 15 minutes, during and testified that this time she heard noises — upstairs: “There was a lot of thumping Thump, a noises. — thump, thump, thump, and there was some kind a a — guttural kept hearing low, monotonous, a noise. I a a almost very deep very throaty chant-like sound. A and guttural type over, again.” and over When the defendant returned downstairs defendant, Palmer, p.m., around 4:30 baby Mrs. and the left, being this approximately they hour after had arrived at the Zimmerman residence.
On March the Palmers rented a storage unit in Hastings, packing After making arrangements Nebraska. for, have their employer’s they Austin, animals cared left for
Texas, approximately 2 weeks after the incident. Palmer Mrs. testified the items stolen shop from coin placed were diaper bag accompanied a them to Austin. defendant, Austin using
In the name J.R. Kirkpatrick, dealer contacted coin Garza and named Jesse sold him coins jewelry. days later, A few Garza read trade journal which robbery cataloged covered the Zimmerman and murder and *5 recognized stolen items. Garza that several of the items he list, bought from defendant were on the and called the again, police. When the defendant contacted Garza Garza restaurant, arranged airport police meet him an where the to at arrested on March 1979. wife, Zimmerman,
The victim’s Monica returned home 6, 1979, 5 p.m. around on March and discovered that the coin body shop police. had been looted. She called the The victim’s upstairs, tightly was found with an electrical cord tied around neck, coins, jewelry, money, and and other valuables were missing. pathologist be A discovered to testified that the victim collarbone, right had a bruise below his left a bruise over the cheekbone, eyebrow eyelid, left bruised and a scratch on the left jaw, side of his nose and under his left and a cut on his left temporal injuries preceded area. Those death. Mr. windpipe
Zimmerman’s and voice box were broken and bleeding. 4:30; evidenced The time of death was fixed at strangulation. explaining presence cause of death was In cuts, bruises, abrasions, pathologist and testified that “One, possibilities: there were two if the head were thrown against unyielding object several times an or that the head received a blow in a number of different areas from one or more objects.” blunt sentencing panel mitigating found that no circumstance sentence, beyond
existed to affect defendant’s but found statutory aggravating reasonable doubt that two circumstances existed, namely, (1) that the murder was committed in an apparent identity effort to conceal defendant’s as the perpetrator robbery, (2) and that while Zimmerman’s heinous, “especially atrocious, cruel,” murder was not it exceptional depravity by ordinary “manifested standards of morality intelligence.” 29-2523(l)(b) and„(d). § trials,
In each of the three the State introduced circumstantial tending implicate evidence to defendant in the crime. In the first trial undergone hypnosis three witnesses who had were allowed testify, leading court this to reverse and remand. See Palmer widow, I. In the second and third trials the deceased’s Monica Zimmerman, permitted testify, although was judge the trial subject testimony. limited the matter of Additionally, her in the testify third Palmer allowed to second and trials Cherie was against her testimony her husband. It in the second trial contrary provisions found which we to be of Neb. Rev. (Reissue 27-505 1979), accordingly we set aside the Stat. § cause conviction remanded the for a third trial. opinion released, II
After our Palmer was but before the held, Legislature third trial this case was the Nebraska 27-505, eliminating provision precluded amended which § against spouse testifying one from another in a criminal case *6 except limited applicable in not to the circumstances instant Laws, case. See 1984Neb. L.B. 696.
Defendant’s counsel have filed a brief in alleging this court 27 trial, that some errors were during any committed the third one of which would entitle defendant to an of order this court reversing the setting decision and aside the sentence. Additionally, pro defendant has filed a se brief in which he has specific error, assignments raised five of all of which are essentially covered assignments his counsel’s brief. These 32 of be rephrased error can any way and reduced to without in any ignoring issues raised either defendant’s counsel or assignments defendant himself. rephrased These are as follows: (1) evidence during That the adduced at the trial its various stages is insufficient to support the (2) verdict. That the action Legislature amending of the in passage 27-505 with the § of prohibited by post L.B. is ex the facto clauses of both the U.S. and Nebraska Constitutions and that the trial court erred permitting in testify against Cherie Palmer (3) defendant. requiring That defendant to trial stand a third time constituted placing in him double in jeopardy, violation of his federal rights. (4) constitutional That the district court erred in permitting Monica testify regarding Zimmerman to matters during pretrial hypnotic covered her (5) interview. That the overruling district erred in court defendant’s motion to suppress pretrial the use of and in-court identifications of him. (6) That the court overruling district erred in defendant’s motion to ground dismiss deprived right on that he had been of his to a speedy trial under both Nebraska statute and the sixth to the amendment U.S. (7) Constitution. That the district court overruling erred in defendant’s suppress motion to evidence Austin, obtained from him at the time of in (8) his arrest Texas. sentencing
That the district court erred in defendant to death.
We shall discuss these issues in the order listed above.
(1) Sufficiency of the Evidence. argument taking Defendant’s first is that the evidence as a whole, it was insufficient support finding the verdict him guilty felony of murder. When the evidence adduced at trial considered, assignment quickly first be must overruled. with, begin To person charged may a criminal case be convicted on the basis of circumstantial evidence. See State v.
Buchanan, Furthermore, 210 Neb. 312 N.W.2d (1981). determining sufficiency of the evidence to sustain a prosecution,
conviction in a criminal
province
it is not the
of the
Supreme
Nebraska
evidence,
Court to resolve
conflicts
pass upon
credibility witnesses,
plausibility
determine the
explanations,
weigh
evidence,
as such matters are for
jury.
The verdict
jury
if,
taking
must be sustained
view
State,
most favorable to the
there is sufficient evidence to
See,
support it.
Wilkening,
State v.
222 Neb.
382 N.W.2d
(1986);
Kakela,
218 Neb.
(2) Amendment testimony. of 27-505 § and Cherie Palmer’s already noted, As we have in Palmer II this court held that 27-505, constituted, as it was then prohibited § Cherie Palmer testifying from against her husband. At that time 27-505 § provided as follows:
(1) Neither husband nor wife can be any examined in any case as to confidential by communication made one to married, the other they while nor shall marriage after the relation ceases permitted to be testimony reveal in [sic] any such communication marriage while the subsisted except as provided by otherwise privilege law. may This be only waived with the spouses. consent of both After the one, may it be waived the survivor. death of marriage, a husband and During the existence of the (2) against the other. criminal case be a witness wife can no only both privilege may be waived with the consent of This spouses. privileges may not be claimed:
(3) These charged rape, (a) any In criminal case where the crime is adultery, bigamy, incest....
Following subject II and before the our decision Palmer 27-505, trial, Legislature the Nebraska amended and in § particular (3) provide amended subsection as follows: any privileges may (a) not be claimed: In criminal case “These violence, charged bigamy, a crime of where the crime incest.. (Reissue 1985). . .” See 27-505 While defendant raises some § meaning (a issue as to of the amendment matter which we appears fairly will discuss), later it nevertheless clear that unless 27-505, amending adopting L.B. 696 and the Nebraska § Legislature adopted post thereby has an ex facto law and rights, violated defendant’s constitutional Mrs. Palmer was properly permitted testify. Const, Const, I, I,
Both U.S.
art.
and Neb.
art.
§
§
clearly provide
post
may
passed.
that no ex
facto law
be
What is
however,
clear,
post
not so
is what constitutes an ex
facto law.
literally
phrase
post
thing
The Latin
“ex
facto” means
“a
done
afterward.” Webster’s Third New International
Dictionary, Unabridged
(1981).
general
In a
sense an ex
post
punishable
facto law is one which “renders an act
in the
punishable
manner in which it was not
it
when was committed.”
Peck,
87, 138,
(6
Fletcher v.
Cranch)
U.S.
However, history an examination of the as it relates to the post doctrine of ex facto and the cases which have been decided from the earliest of times leads to the conclusion that not all legislation prohibition against retroactive is in violation of the
291
clause,
post
interpreted, applies
ex
facto laws. The
as it has been
exclusively,
or laws
principally,
impacting
if not
to criminal laws
Bull,
386, 1
prosecutions.
(3 Dall.)
See Calder
U.S.
criminal
v.
3
frequently
Ed. 648
most
(1798).
L.
The
stated rendition of the
post
prohibition
legislature may
any
ex
facto
that a
not enact
imposes
punishment
“which
act
law
a
for an
which was not
committed;
imposes
it
punishable at the time was
additional
prescribed
Cummings
punishment to that then
. . . .”
v. The
Missouri,
325-26,
(4
Wall.)
State
71 U.S.
After discussing Kring, supra, the Court noted that Kring been him deprived right had of a substantial possessed at the time offense committed. Court went on to situation, distinguish Hopt’s noting:
But there are no such features in the case before us. simply enlarge persons Statutes which the class of who may competent testify be in criminal cases are not ex post application prosecutions in their for crimes facto passage; they committed to their prior do not attach *9 done, which was any criminality previously to act done; any crime theretofore aggravate when nor innocent therefor committed; greater punishment provide a nor commission; do nor at the time of its prescribed than was measure, of degree, the amount or they the or lessen alter necessary when made to conviction proof the which was the crime was committed. defendant was present which the
The crime for therefor, indicted, prescribed punishment necessary to establish his degree proof of quantity or the subsequent statute. guilt, remained unaffected all legal evidence Any statutory of the rules of alteration upon proof, less in authorize conviction which would degree, required when the offence than was amount offence, committed, be might, respect in of that was upon post inhibition ex to the constitutional obnoxious which not increase the But alterations do laws. facto change ingredients of the offence or punishment, nor necessary guilt, facts to establish the ultimate leaving the nature of the crime and untouched but — only degree proof amount or of essential to conviction — competency existing upon restrictions of remove witnesses, persons of as relate modes of certain classes only, in which no one can be said to have a procedure State, upon grounds right, public and which the vested regulations may regulate pleasure. at Such policy, constituting guilt may placed in which the facts be mode jury, applicable prosecutions or before the can be made had, reference the date trials thereafter without charged. the offence commission of Utah,
Hopt
supra
v.
at 589-90.
Similarly,
nothing
Legislature
in the instant case
done
act,
any
amending 27-505 created
criminal
nor altered the
in
§
conviction,
necessary for
nor altered the
proof
standard of
committing
punishment prescribed for
the crime. The decision
wholly
holdings
with our
in this
Hopt, supra,
consistent
jurisdiction
right
has a vested
in a
to the effect that no one
changed
any
procedural matters can be
at
procedure and that
See,
binding
trial and are
on the defendant.
time before
(1977);
N.W.2d
by the
supra,
further affirmed
holding Hopt,
was
Missouri,
Thompson
Supreme
decision
U.S.
Court
was a
380, 18
(1898). Thompson
case Supreme Missouri degree murder. After conviction first writing certain reversed, holding the Court admission error. Prior purposes prejudicial to be samples comparative retrial, Legislature enacted a statute the Missouri to his were samples The same allowing of such evidence. admission convicted, Thompson admitted in the second trial. then the conviction. Supreme upheld the Missouri Court *10 subsequent the Supreme held that appeal U.S. Court On the writing regarding legislative change the rules of evidence of post violate ex purposes did not the samples comparative The Court prohibition of the federal Constitution. facto containing language number of cases admitted that a argument be post could supporting Thompson’s “ex facto” found, but, in former principles the announced “[a]pplying attaching weight general expressions undue to cases—without necessary be beyond the to go questions in them that 386, determined,” Supreme held at the U.S. Court 171 U.S. enough render rights abrogated were to
that the not substantial doing application the unconstitutional. In retroactive of statute so Court said at 387: excluded, grounds public policy, at the persons upon
If of offence, testifying from as time of of an the commission accused, may, in virtue of against witnesses for or statute, testify, perceive we cannot competent to become post to any ground to statute be ex upon which hold a of a nothing admit evidence than which does more facto an of fact particular upon issue kind in a criminal case of as rules evidence which admissible under the was not by the time offence judicial enforced decisions at committed. change in whether a previously
Four states have considered law, post an ex facto privilege the marital statutes constitutes [294] See, Huckaby determined not. each instance that it does State, 413, (1977); 557 875
v.
262 Ark.
S.W.2d
Clevenger,
Ritchey
2d
v.
(1966);
69 Wash.
As of his “ex facto” defendant raises that, any event, two other related issues. He L.B. maintains unconstitutionally vague 696 because there is no definition Furthermore, argues “crime of violence.” he that exceptions by only adopted apply L.B. 696 cases where spouse party. or child other is the vagueness argument is controlled rule that in the anything indicating contrary,
absence of statutory language Carlson, given ordinary meaning. is to be plain its By N.W.2d 394 669 standard “crime” subject is an act or omission for which one is to punishment public authority. See Webster’s Third New Dictionary, Unabridged (1981). By International 536 that same standard is the physical “violence” exertion of force so as injure Thus, or abuse. Id. at 2554. “crime of violence” is an act injures which through physical or abuses the use force and subjects which punishment by public authority. the actor robbery This court has said that is a crime violence. Draper 726, 131 Sigler, then, v. (1964). Certainly, Neb. N.W.2d 131 Ferrer, murder is a crime of violence. Com. v. 283 Pa. Super. Manns, 423 A.2d (1980); People App. Mich.
163N.W.2d 232 (1968). Accordingly, vague. L.B. is not argument regarding application
Defendant’s of L.B. 696 is that the described in apply only crimes 27-505 § cases where one spouse against commits a crime spouse. other *11 Therefore, him, according applies only L.B. 696 where one spouse commits a crime of against violence spouse. other We do not history read either the of the amendment nor the language itself by to so limit 27-505 as amended L.B. § 696. The meaning clear of the statute privilege may is that the not be claimed charged violence, where the crime is “a crime of bigamy, incest, any by crime against committed one person or property of the (Emphasis other.” supplied.) argument Defendant’s flies the face meaning of clear of
[295] correct, would there argument were If defendant’s statute. only not crimes need for the enumeration have been no well, which as crimes bigamy and incest those of violence but other or against the except by spouse one cannot be committed Nothing within family. L.B. upon some other member 27-505, to acts of violence 696, limits crimes as it amended § words spouse. The against the other spouse one committed consistently We have interpretation. require clear and no are plain is and language of a statute where the held that needed, is court interpretation no is unambiguous, See, Palmer II. authority change language. See such without 216 Neb. also, Herrington, Kellogg Company v. Schneckloth, Koger, and (1984);
N.W.2d
Heathman,
(1981). L.B.
as
(3) Double through attorney and in his argues, both his Defendant next brief, try him a third time decision to pro se that the State’s of both the federal and jeopardy clauses violated the double arguments Although thrust of the Nebraska Constitutions. separate two tracks. readily apparent, appears it to follow
is not that the evidence argument upon based the notion One is the case to insufficient to submit adduced at the earlier trial was and, therefore, prosecution. The jury, a bar to further himself, to be to appears argument, second raised judicial prosecutorial there was both the effect that trial, a new compelled which defendant to seek misconduct and, therefore, retrying him. Neither this bars the State from contention is valid. evidence, insufficiency argument regarding
In his first opinion Court upon Supreme the U.S. defendant relies States, 57 L. Ed. 2d S. Ct. Burks v. United 437 U.S. an held that Supreme Court In Burks the U.S. to convict evidence
appellate finding of insufficient therefore, and, that the double acquittal tantamount to an reviewing once the precludes second trial jeopardy clause *12 legally reaching In found the evidence insufficient. court has conclusion, precisely, saying the Court set out its rationale at 16: necessarily finality jury’s to a
Since we afford absolute acquittal verdict of matter how erroneous its —no society any conceive how has decision—it is difficult to when, review, greater retrying interest in a defendant on it jury decided matter that the could not as a of law properly guilty. have returned a verdict of however, beyond question, It is clear that the decision in Burks give any argument support does not to the raised defendant specifically in the instant case. The Court addressed that issue distinguished upon a reversal based trial error from a acquittal upon verdict of based an erroneous decision. Burks, doing Supreme
In so the supra, U.S. Court in said at 15:
Various rationales have been support advanced to error, policy allowing retrial to correct trial but in our justification view the most reasonable is that advanced Tateo, supra, high price at 466: “It would be a indeed for society pay every granted immunity were accused from punishment any because of defect sufficient to constitute proceedings leading reversible error in the to conviction.” Wilson, 343-344, 11; Hunter, supra, See at n. vWade short, error, (1949). U.S. 688-689 In reversal for trial distinguished evidentiary insufficiency, as from does not government constitute a to the decision effect that the has prove such, implies nothing failed to its case. As it with respect guilt Rather, to the or innocence of the defendant. it is a determination that a defendant been has convicted through judicial process which is defective in some respect, fundamental g., receipt rejection e. incorrect or evidence, instructions, incorrect prosecutorial occurs, misconduct. When strong this accused has a obtaining readjudication interest in guilt a fair of his free error, just society from as maintains a valid concern for insuring guilty punished. that the are
See, also,
Bostwick,
Palmer to jeopardy does not constitute double so as to preclude prosecuting the State from defendant in the instant case.
Nor does defendant’s contention prosecutorial that there was judicial or misconduct of such a nature as to bar a retrial have any merit. The record in all three cases is devoid of evidence to prosecutorial establish either judicial or misconduct. That a county attorney vigorously prosecutes one accused of a crime prosecutorial does not constitute misconduct. Nor does fact permits that a trial court the introduction of evidence which may later be excluded because of a difficult complicated or rule judicial of law argument constitute misconduct. by raised wholly defendant is unsupported any evidence. Defendant was convicted in Palmer II. That conviction was reversed procedural because of a prejudicial. error considered be to error, procedural Absent that there was sufficient circumstantial jury evidence to submit the case to the and to Therefore, convict him. placed defendant was never in double jeopardy, assignment and his regard of error in that must be overruled. During
(4) Matters Covered Monica Zimmerman’s Pretrial Hypnotic Interview. assignment The basis of regarding defendant’s of error almost,
testimony of totally Monica Zimmerman is based upon However, holding our in Palmer I. Palmer I must be read in light subsequent Patterson, of our decision in State v.
686, 331 N.W.2d (1983), explained wherein we holding our in Palmer I and set out the rule as it was thereafter applied to be in Nebraska. Were we argument to subscribe to the made I, herein as to what he believes we said in Palmer proportion rule of ridiculous would be reached. What we were I, seeking clearly Patterson, in Palmer as more set out State v.
supra, prohibit testimony was to the introduction of which hypnosis. came about for the first time after As we indicated in I, preventing Palmer our concern was evidence which was Where, hypnotically hypnotically induced rather than recalled. however, the evidence knew is clear that witness about being subjected hypnosis, perceive before we matters to can preclude being no rule which should the witness from thereafter permitted testify. extremely to court was district careful limiting testimony subject Monica Zimmerman’s in the trial to those matters for which there was evidence sufficient to establish that she knew the of matters and had related them to being subjected hypnosis. another before to The rule in Patterson, supra, Nebraska as set out in State v. is that a witness incompetent merely will not be rendered because he she case; hypnotized during investigatory rather, phase of the permitted testify regard witness will be with to those matters which he or she prior was able to recall and relate hypnosis, provided satisfy that there is sufficient evidence to court the evidence prior was known and related hypnosis.
Nowhere in Palmer I can it be found that we precluded
*14
fact,
testifying.
Monica Zimmerman from
In
we ordered
reversal with instructions to the district court to determine what
testimony
of her
properly
was
making
admissible. In
that
determination the district
required
court was
to consider our
Patterson,
refinement of the rule as
set out
State v.
supra.
See, also,
Shiffbauer,
(5) Pretrial and In-court Identifications of Defendant. argues Defendant that the in-court identification of him was by tainted photographic lineup which place took at the Austin, Texas, police department following prior his arrest and to his trial in Palmer I.
The record following discloses that a call from the Austin Department informing Police the Grand Island Police Department that articles stolen from the Zimmerman residence arrested, had been confiscated suspect and a a number of investigators Nebraska and Monica Zimmerman flew to Austin, Upon arriving Texas. in Austin the charge officer in contingent Nebraska determined that because of height defendant’s unusual it inappropriate would be to have Monica Zimmerman view him in lineup. a traditional In a purported effort to alleviate height discrepancy between defendant and the officers chosen to fill the lineup group, the individually officers decided to photograph defendant and the four officers. All five photographed were standing in front of a white positioned wall and next to a doorframe. When shown the five photographs, Monica Zimmerman immediately being identified defendant as the customer whom she had reported police looking to the suspicious. as argues
Defendant now that the procedure identification used unduly suggestive was heights that the relative subjects readily were by determinable reference strategically to the placed doorframe visible in photograph. each Defendant then argues that Supreme under the U.S. Court decision in Neil v.
Biggers,
409 U.S.
93 S. Ct.
In Simmons v. United 390 U.S. 88 S. Ct. L. Ed. 2d 1247 (1968), Supreme the U.S. Court addressed the issue of a photographic lineup. Approving the use of photographs, the Court said at 384: hold that each case must be
[W]e considered on its own facts, and that eyewitness convictions based on following identification at trial pretrial identification photograph will ground be set aside on only if the photographic procedure identification so impermissibly suggestive give as to very rise to a irreparable substantial likelihood of misidentification.
Following its States, decision in Simmons v. United supra, the *15 Supreme U.S. Court decided Neil Biggers, v. supra. Neil eyewitness involved an following identification at trial police showup station of the discussing defendant. After past its due cases, process the Supreme U.S. Court determined that unnecessary suggestiveness alone require does not an exclusion
300 showup that the Court noted evidence.
of identification that the “central but found conducted have been better could ‘totality the of under the “whether question” was though the reliable even identification was the circumstances’ Neil, at 199. suggestive.” supra procedure was confrontation at 199-200: The Court then stated cases, to be considered by the factors our
As indicated
the
include
evaluating
likelihood of misidentification
the
criminal at the time
to view the
opportunity of the witness
attention,
accuracy
the
crime,
degree of
the witness’
of the
criminal,
the
the level
description of
prior
the witness’
of
at
by the witness
certainty demonstrated
confrontation,
length
time between the crime
and the
the confrontation.
in this case fails
photographs
of the
An examination
presence of the
that
support defendant’s contention
Monica
unduly suggestive and caused
doorframe was
many
In the first instance
to select defendant.
Zimmerman
appearance
suspect’s
have held that a
distinctive
courts
necessarily
procedure
render the
display does not
photographic
Cir.
See,
Mefford,
(8th
[301] array assignment unduly suggestive. was not This of error is therefore overruled.
(6) Right Speedy to a Trial. argument speedy Defendant’s that he was denied a trial under the either Nebraska statute or the sixth amendment to federal in Palmer Constitution is likewise without merit. The mandate by II was received the court on October 1983. Voir district subject began dire for the trial on In the time March 1984. trial, filing beginning
between the the of the of mandate and motions, evidentiary more than 20 the bulk of which went to matters, attorneys were filed defendant’s arguments
himself. Some of these motions were submitted on alone, affidavits, supported by some were required and some evidentiary hearings. tolling full-blown Even without period motions, pretrial on account of defendant’s it is clear required by that the time (Reissue Neb. Rev. Stat. 29-1207 § 1985) expired. 29-1207(3) provides: had not Section “If such mistrial, again following defendant is to be tried a an order for a trial, attack, new appeal period or an or collateral such shall mistrial, granting commence to run from the date of the order a trial, new or the mandate on remand.” Trial must then be had within 6 months from that date.
Section 29-1207(4)(a) computation excludes from the of the period filing 6-month “the time disposition from until final of pretrial subject motions of the began defendant...” trial 17 weeks after disregards the return of the mandate. If one during pretrial time which pending, motions were there was only period days approximately between the time that the pretrial disposed motions jury were of and the voir dire of the began. suggest To any therefore that there was violation of speedy wholly Nebraska’s trial act is frivolous.
Defendant, however, maintains that under the sixth amendment to the U.S. granted Constitution he was not speedy arguing trial. In so primarily he relies on the U.S.
Supreme Court Wingo, decision Barker v. 407 U.S.
S. Ct. L. Ed. 2d 101 In that case the U.S. Supreme balancing thought Court set out the test it appropriate for the under speedy resolution of trial issues U.S. noting speedy right Constitution. After trial “is
genetically any rights from different of the other enshrined accused,” protection the Constitution for id. at right by define the Court refused the nature of reference instance, arbitrary as, period period to an the 6-month time Instead, out in set 29-1207. the Court stated that § “[t]he test, approach accept balancing we is a in which the conduct prosecution weighed.” both the defendant are at Id.
530. The Court then out be set four factors to considered in this balancing process: “Length delay, delay, the reason for the *17 right, prejudice the defendant’s of assertion his to the mechanism, Explaining defendant.” Id. the Supreme this U.S. expounded factor, Court the saying: on first length delay
The triggering of the is extent to some delay mechanism. Until there is some which is presumptively prejudicial, necessity there no inquiry is into the go other factors that into the balance. Nevertheless, of imprecision right because of the speedy trial, length delay of provoke that will such an inquiry necessarily dependent upon peculiar circumstances of case. but example, To take one delay ordinary that can be tolerated for an street crime is serious, considerably than complex less for a conspiracy charge. at delay
Id. 530-31. In our view a of 17weeks from the of return the mandate to a does delay trial not constitute an unreasonable not, sufficient to cause other triggered. factors to be We are therefore, factors, required any to examine finding that delay of 17 weeks from return of mandate to trial is not unconstitutionally assignment unreasonable. Defendant’s regarding speedy lack of a trial is without merit and is overruled. Suppress
(7) Motion to Evidence Obtained From Defendant Austin, at the Time of His Arrest in Texas. challenges
Defendant next the propriety of his arrest in Texas and the seizure property allegedly stolen from Zimmerman at the time of his death. presented subject evidence in the presented trial is identical to that in Palmer I. That issue was I, raised in Palmer regard that we said at N.W.2d at 652: establishes, evidence at bar the
In the case contest, probable had the officers not defendant does arrest A valid warrantless the defendant. cause to arrest Texas, District Court and the the laws of was made under the evidence suppress the motion to properly overruled at the time of of the defendant person from the seized arrest. I, holding and our resolved in Palmer properly
The issue was appeal. in this reapplied therein is Penalty.
(8) Imposition of the Death with specific subissues number of raised a Defendant has They will be penalty. imposition of the death regard to the they which are raised. order in considered the same him to motion to allow overruling A. of defendant’s testimony proportionality. expert regarding secure given be he was entitled to Defendant maintains that might expert, an either public funds so that he secure sufficient court, this appeal for an before preparation at trial or in imposition of the death testimony respect with to the produce However, while either a of Nebraska. penalty the State before the may to adduce evidence defendant or the State wish penalty any in which the death sentencing judge panel case by this yet not been reviewed imposed been but which has has expert court, is not for question proportionality Moore, testimony; See State it is for court determination. *18 Thus, 457, motion (1982). defendant’s
210 Neb.
Defendant contained in of information imposed, part, even in on the basis assignments of many investigation. Like of presentence defendant, this previously considered by we have error raised 206, 221, Reeves, Neb. 216 rejected it. In State v. issue and have this issue 433, addressed (1984), specifically 444 we 344 N.W.2d “ ‘ may be relaxed rules of evidence said: traditional [T]he authority can sentencing that following conviction so of imposition to the pertinent receive all information ” Reeves, 223, N.W.2d at 344 Further, supra at sentence.’ 304
445,
quoted
Hochstein,
we
from
Anderson and
51,
1025,
Neb.
See, also,
Williams,
imposition penalty. the death assignment error, While this presented, as is somewhat vague and does little to assist the determining any court in specific error, defendant, brief, claim of in his makes arguments about several specific factors which will be considered us to have been assignment included under this While, normally, error. assignment such an might not be considered the court because of vagueness, its in view of the severity punishment of the imposed case, in this we address each of the items raised.
(i) Whether the district court erred in not considering nonstatutory mitigating factors. argues
Defendant that it has firmly now been established capital that in a case the sentencing authority must not be precluded considering, from mitigating factor, as a any aspect of the record, defendant’s character or any offense, circumstances of the 586, citing Ohio, Lockett v. 438 U.S. 98 S. Ct. 57 L. Ed. 2d (1978), Ohio, and Bell v. U.S. 98 S. Ct. 57 L. Ed. 2d 1010 In State Moore, supra, this specifically court declared that offer, defendant could on mitigation, the issue of any evidence, though even the mitigating factor was specifically not listed in the statute. argues
Defendant sentencing court did not consider nonstatutory mitigating circumstances concerning his
[305] imposing penalty childhood when the death in this case. A by argument closer examination of both the advanced him and complaint the record makes it clear that defendant’s is not that but, rather, permitted present he was not the evidence that factors, the trial court must have refused to consider the imposed penalty otherwise the court would not have the death essence, merely in this case. In defendant asserts that he is disappointed sentencing by panel persuaded that the was not his sentencing panel specific evidence. The made reference to the regarding evidence his childhood and found that “such give evidence mitigating does not rise to a circumstance.” There nothing in the record to indicate that the did court not defendant, mitigating consider all of the evidence offered merely but rejected it. The in this record case indicates that unconvincing. defendant’s evidence was
(ii)
statutory aggravating
Whether the
circumstances set out
unconstitutionally vague.
in 29-2523(l)(d) are
§
argument
previously
This
has
been considered
this court
rejected. See,
Reeves,
206,
State v.
216 Neb.
344 N.W.2d
Moore,
(1984);
210 Neb.
(iii) placing Whether ofproof upon burden defendant establish mitigating circumstances is in violation his rights. constitutional effect, that, argues proof
In absent that one or all mitigating present, sentencing circumstances are not court presume mitigating only must all that circumstances exist. Not argument any face, that does not make sense on its but it has previously specifically rejected by been this court. In State v.
Moore, supra at 316 N.W.2d at we said: eighth assignment
The defendant’s asserts that the State proving beyond has the burden of a reasonable doubt that mitigating authority no factor exists. He cites no for this proposition. None seems to exist. There is no evidence any claim suppressed State If favorable evidence. any shown,
there were mitigating factors other than those *20 reveal know and position to in the best defendant is the those factors. alleged error. this does not sustain
The record
case must
capital
in a
a criminal
(iv) Whether
aggravating
extent
the nature and
notice
receive
of
of
penalty.
the death
support
charges to be
of
offered
court erred
argues that
the district
next
Defendant
which
specify upon
require the State to
overruling motion to
his
rely.
support of that
In
it intended
aggravating circumstances
to the U.S.
argues
the sixth amendment
position defendant
Const,
I,
11, requires that
Constitution,
art.
well as Neb.
§
as
“the
right to demand
or have the
be informed
the accused
further,
State,
accusation,”
May
citing,
v.
and cause of
nature
State, 123
369,
Kissinger v.
(1950),
44N.W.2d636
Neb.
153
in error in that
856,
(1932). Defendant is
regard. previously As we 51, (1980), cert. denied Hochstein, N.W.2d 440 207 Neb. 1731, 1025, (1981), Ed. 2d 219 as well 68 L.
450 U.S.
101 S.Ct.
(1984), and
Williams,
as State v. Reeves, stage, sentencing since it occurs supra, in the established, guilt has been question after rights is not entitled to all of same then-convicted defendant yet convicted. merely of a crime but not accorded one accused clearly Furthermore, in the instant case that record we note informed and his counsel were establishes that both defendant aggravating circumstances the State the record of the on alleged rely merit in this error. upon. intended to There is no jury permit to consider D. Whether the refusal constitutional lesser-included violated offense defendant’s rights. degree acknowledges that neither second
Defendant first
manslaughter
offense of
murder nor
is a lesser-included
State,
murder,
felony
citing Morgan v.
51 Neb.
charge of
State, 63 Neb.
(1901), and Wilson v. however, authority citing, no argues, He then offense for there is no lesser-included proposition, that because murder, felony murder charge felony one who commits case, If, may present there is death. as in the not be sentenced to no lesser-included charged, offense to the crime a defendant is not entitled to an instruction on a lesser-included offense. The fact, however, that a defendant is not entitled to such an instruction does penalty not eliminate the provided otherwise by statute. For these reasons all of these various miscellaneous objections raised defendant in regard this are overruled. E. Whether the sentence death must be set aside because it imposed, not part, by jury. at least in issue, likewise,
This firmly has been established to the contrary by Simants, this court. In
N.W.2d 881 (1977),
specifically
we
addressed this issue and
rejected the contention that
penalty
a death
could not be
imposed
jury.
absent a
In doing
we specifically
so
called
attention to the
Supreme
U.S.
Court decision in
Proffitt
*21
Florida,
242,
428
2960,
U.S.
S.
96 Ct.
“This Supreme] U.S. pointed Court has jury out that [the sentencing capital in a perform case can important an function, societal Illinois, Witherspoon v. 391 U.S.
519, 15, n. suggested but it has never jury that sentencing is constitutionally required. And it appear would that judicial sentencing lead, should anything, if to even greater consistency in imposition the at the trial court level capital of punishment, judge since a trial is more experienced sentencing jury, than a and therefore is better able to impose sentences similar to imposed those analogous cases.” Simants,
State supra at 250N.W.2dat 887. Wethen went say 559, 250 on to at N.W.2d at 888:
As we understand the federal and state constitutional provisions, they do not require suggest or even jury that sentencing is constitutionally required. Whatever the relative merits sentencing by judge jury be, may or we need not consider them. Our concern the constitutionality of system, the Nebraska under the federal and state Constitutions. The relative merits of the one or the other is legislative judicial for and not determination. sentencing We find the procedure provided by the Nebraska statute does not either violate
[308] the federal Constitution. Nebraska or
the Hochstein, 51, 296 also, and See, State v. Anderson U.S. 1025, 101S. Ct. cert. denied 450 (1980), N.W.2d 440 overruled. alleged error is 2d This 68 L. Ed. 219 to recuse the motion overruling F. The defendant’s sentencing panel. members of raised, to be no appears assignment is there While the issue, we are unable to addressing specific argument that was error. For that defendant contends determine what it is that alleged must be overruled. reason the error properly applied sentencing panel Whether G. death. sentencing to 29-2523(l)(b) (d) § L. Georgia, 408 U.S. 92 S. Ct. Furman v. After be Supreme wherein the U.S. Court held to (1972), Ed. 2d 346 Const, VIII and XIV death sentences violative of U.S. amends. juries with untrammeled imposed under left statutes penalty, impose or withhold the death discretion pertaining certain Legislature of Nebraska revised statutes Legislature In enacted the capital punishment. following: sentence, determination of proceeding
In the may any presented evidence be as to matter that court sentence, include deems relevant to and shall matters relating any aggravating mitigating or circumstances set forth in section 29-2523.... Legislature In also enacted: 29-2521.
§ hearing arguments After all of the evidence and in the judge sentencing proceeding, judges shall fix the imprisonment, sentence at either death or life but such following upon determination shall be based *22 considerations:
(1) aggravating Whether sufficient circumstances exist death; justify imposition of a sentence (2) mitigating Whether sufficient circumstances exist approach weight given which or exceed the to the circumstances; aggravating or
(3) Whether the sentence of death is excessive or disproportionate cases, penalty imposed to the in similar considering both the crime and the defendant. imposes the death in which the court
In each case writing sentence, shall be in of the court the determination findings of fact based supported written and shall be sentencing and the records of the trial upon the referring aggravating the and and proceeding, in its determination. mitigating circumstances involved 29-2522. § aggravating referred to in 29-2521 §§
As the circumstances 29-2523, 29-2522, specified: Legislature, and § (1) Aggravating Circumstances: of another
(a) previously The offender was convicted involving violence to murder or a crime the use or threat of history of serious person, or has substantial activity; criminal terrorizing assaultive or apparent in an effort to (b) The murder was committed crime, conceal the conceal the commission of a or to crime; identity perpetrator of a hire, The murder committed for or for
(c) pecuniary gain, hired another to commit or defendant; murder heinous, atrocious, cruel,
(d) especially The murder was by ordinary exceptional depravity or manifested morality intelligence; standards of committed,
(e) At the time the murder was the offender murder; also committed another great
(f) knowingly The offender created a risk of death persons; to at least several public
(g)The victim was a law enforcement officer or a another; custody having of the offender or or servant disrupt hinder (h) The crime was committed to any governmental function or the lawful exercise of enforcement of laws. earlier, sentencing panel found the existence of
As noted The evidence aggravating (l)(b) (d). circumstances known to the Zimmermans due establishes that defendant was dealings. prior The defendant his wife to their course prior to to the victim’s home at least four times had been clearly identify the murder. The victim knew and could date of The record therefore establishes the defendant.
Zimmerman murdered in was an effort to conceal defendant’s Thus, identity. aggravating (l)(b) existence of circumstance beyond has been established a reasonable doubt. approximately
At
Legislature
the time when the Nebraska
enacting
29-2523,
Supreme
was
29-2521
Court of
§§
Dixon,
Florida decided
(Fla. 1973),
frequently provision attacked is the that commission of an heinous, especially atrocious or cruel capital felony aggravated constitutes capital felony. an Fla.Stat. 921.141(6)(h), Again, F.S.A. we meaning § feel that the such terms is a matter knowledge, of common so that an ordinary man guess would not have to at what was intended. interpretation It is our that heinous means extremely evil; wicked shockingly or that atrocious means outrageously vile; and, wicked and that cruel means designed high degree to inflict a pain with utter to, indifference enjoyment of, or even the suffering of others. What is intended be included are capital those crimes where the actual commission of the capital felony accompanied by such additional acts as to set the apart crime from the norm capital felonies—the pitiless conscienceless or crime which unnecessarily torturous to the victim. Supreme
The U.S. in Gregg Court v. Georgia, 428 U.S. 2909, 49 96 S. Ct. L. Ed. 2d (1976), expressed following: Because of uniqueness penalty, of the death Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be arbitrary inflicted in capricious an manner.. . .
Furman mandates that where discretion is afforded a sentencing body grave on a matter so as the determination of whether a human life should be taken spared, discretion suitably must be directed and limited so as to minimize the wholly arbitrary risk of capricious action.
While have some sentencing impossible are capital jury’s deliberations formulate, have been is that such standards fact *24 drafters of the Model Penal Code developed. When the they “that it is within the problem, faced this concluded point the main circumstances of possibility realm of to to weighed mitigation be and aggravation and of that should they presented in a weighed against each other when are 201.6, ALI, Penal Code concrete case.” Model § (Tent. 1959) (emphasis Draft No. in p. Comment by necessity are somewhat original). While such standards sentencing general, they provide guidance to the do that it will authority thereby reduce the likelihood and fairly capricious or impose that can be called a sentence authority arbitrary. sentencing required is Where the decision, upon reaching in its specify the factors it relied safeguard meaningful appellate review is the further imposed are not to ensure that death sentences available capriciously or in a freakish manner. U.S. at 193-95. Code, noting Penal which refers
After existence of the Model imposition aggravating circumstances to warrant “manifesting exceptional penalty phrase and uses the death 210.6(3)(h) in Model Penal Code depravity” (now found § (1980)), continued: the Court that the summary, expressed the concerns Furman
In
arbitrary
or
imposed
be
an
penalty of death not
carefully
met
drafted
capricious manner can be
sentencing authority
given
that the
is
statute that ensures
general
guidance. As a
adequate information
and
by system
met
that
concerns are best
proposition these
proceeding at which the
provides for a bifurcated
authority
apprised of the information
sentencing
provided
and
with
imposition of sentence
relevant to the
information.
guide its use of the
standards to
Gregg
Georgia, supra, (1980).
1759,
“[W]here *25 of whether a grave the determination matter so as spared, that discretion be taken or human life should to minimize suitably directed and limited so as be must arbitrary capricious action.” 428 wholly and of the risk Stevens, Stewart, Powell, and U.S., of (opinion at 189 JJ.). must, short, provide a sentencing capital scheme
A “ distinguishing the few cases ‘meaningful basis for many cases in penalty] imposed from which [the ” Id., Georgia, quoting Furman v. not.’ at which it is J., concurring). (White, supra, at 313 capital wishes to authorize means that if State
This responsibility to tailor punishment it has a constitutional arbitrary avoids the and apply law in a manner that and its of State’s penalty. the death Part infliction of capricious the crimes for regard is to define responsibility this way that obviates may be in a which death the sentence [sentencing] discretion.” [Citations “standardless discretion channel the sentencer’s It must omitted.] “specific and objective provide “clear and standards” that rationally reviewable guidance,” detailed and that “make process imposing a sentence of death.” As was “system Gregg, penalty made clear in a death could have they vague adequately that would fail standards so sentencing patterns juries channel the decision with the arbitrary capricious sentencing and pattern result that a in Furman could occur.” like that found unconstitutional U.S., at n. 46. us, Georgia Supreme In the Court has case before upon affirmed a death no more than a sentence of based “outrageously wantonly finding that the offense was or vile, nothing horrible inhuman.” There is in these few words, alone, standing implies any inherent that restraint arbitrary capricious on the infliction of the death person ordinary sensibility fairly sentence. A could every “outrageously characterize almost murder as or vile, wantonly horrible and inhuman.”
consciousness more than that of any person guilty of murder. His victims were killed instantaneously. They family were of his members who him causing were extreme emotional trauma.... “is of [I]t community importance vital to the and to the be, any impose decision to the death sentence be, appear caprice based on reason rather than emotion.” way
That principled cannot be said here. There is no distinguish case, penalty this in which the death imposed, many from the cases in which it was not. Accordingly, judgment Georgia Supreme Court standing petitioner’s it insofar as leaves thé death sentences is reversed....
With the
Dixon,
(Fla. 1973),
State v.
943,
1951,
Gregg Georgia,
(1974),
94 S. Ct.
Godfrey v. in penalty cases decided death (1980), this court has 398 circumstance, aggravating 29-2523(l)(d) as an reference to § atrocious, cruel, heinous, is, especially murder that “[t]he ordinary depravity by standards exceptional or manifested separates that the word or morality intelligence.” We note heinous, atrocious, “manifested cruel” from “especially morality and by ordinary standards of exceptional depravity Thus, (l)(d) of aggravating circumstance intelligence.” disjunctive at least two distinct describes in the 29-2523 § may which relate aggravating circumstance components of an “may conjunction with or operate and which to a murder 457, Moore, 210 Neb. independent of one another.” State v. See, also,
470,
33,
Jones v.
(1982).
N.W.2d
41
316
427,
Commonwealth,
(1984).
554
228 Va.
323 S.E.2d
finding
any
components will sustain a
presence of
Correll, 148
aggravating
(l)(d) exists. See State v.
circumstance
Gretzler,
468,
See, also,
721
State v.
135
(1986).
Ariz.
715 P.2d
971,
42, 51,
1,
denied 461 U.S.
(1983),
Ariz.
P.2d
10
cert.
659
“heinous, cruel,
2444,
(regarding
L.
2d 1327
103 S. Ct.
77 Ed.
disjunctive,
depraved,”
statutory expression is
such
“
aggravating
either all or one could constitute an
‘so
any
previous
”). To the extent
of our
cases such
circumstance’
Hunt,
(1985),
as State v.
220 Neb.
371 N.W.2d
Holtan,
(1977),
and State v.
197 Neb.
250 N.W.2d
Stewart,
contain
(1977),
197 Neb.
found
”
Rust,
imposition
suffering....’
or the
of extreme
528, 538-39,
See, also,
(1977).
Neb.
250 N.W.2d
State
Reeves,
[315] assigned to each circumstance indicated 29-2523. Where § one or more of the aggravating circumstances are established beyond a murder, reasonable doubt concerning a the death penalty may imposed be proper as a sentence mitigating unless approach circumstances outweigh any or aggravating circumstances, circumstance or thereby overriding the effect of aggravation. Dixon, such See State supra. v. Existence of an aggravating circumstance under 29-2523(1) proved must be § Simants, beyond 549, 250 a reasonable doubt. State v. 197Neb. Rust, (1977);
N.W.2d 881 State v. supra. meaning heinous, atrocious, As a for the “especially words 29-2523, court, cruel” found in (l)(d) circumstance this § Simants, 566, supra 891, State v. adopted at 250 N.W.2d at has Dixon, the definition utilized the Florida court in State v. is, heinous,
supra, especially atrocious, that cruel is “directed to pitiless unnecessarily conscienceless or crime which is See, Stewart, torturous to the victim.” supra; State v. State v.
Moore, Reeves, Hunt, supra; See, also, supra. State v. State v.
supra. may subjected
“Torture
be found where the victim is
sexual,
physical,
psychological
serious
abuse before death.”
State,
Phillips
336, 340,
217,
v.
250 Ga.
221 (1982).
297 S.E.2d
uncertainty
“A victim’s
significant
as to the ultimate fate can be
Correll,
indicating
suffering.”
mental
supra
State v.
at
As did the U.S.
Court in
U.S.
S. Ct.
(1976),
Rust,
Holtan,
supra;
supra;
Harper,
State v.
State v.
208 Neb.
Moore,
(1981);
N.W.2d 33
reviewing
penalty
In
death
cases this court has determined
senselessly
“totally “exceptional depravity,” or an act
life,”
any regard
existed in several cases.
bereft of
for human
purposes.
illustrative
of those cases are now set forth for
Some
Holtan,
544, 250
While
(1977):
N.W.2d 876
197Neb.
bar,
robbing
(Loder),
“herded” the bartender
Holtan
patron (Christensen)
and bar
into
(Ulshafer),
bartender’s friend
restroom,
to tie the other two
where Holtan ordered Loder
floor,
and,
lying
were
then fired
while the three victims
on
Loder,
shots,
striking
killing
wounding
one
four
two
Ulshafer,
any
missing
victim. This court stated:
fourth
*28
killed,
kill, unresisting
attempted
and
“The defendant
robbery.
totally
senselesslybereft
of the
The act was
and
victims
547,
any regard
human life.” Id.
rope
tied his victim’s feet and hands at the wrist behind
gagged
the victim’s back. The victim was
and offered no
(“totally helpless”).
resistance
Id. at
State
going
rape
the victim he was
to rob and
her. When the victim
resist, Otey
with a knife
tried to
slashed the victim’s forehead
sexually
and then
assaulted the victim. After the sexual assault
building
Otey
Otey
part
took the victim to another
of a
where
money
sought
deep
the victim’s
and inflicted several
knife
and,
victim,
hammer,
hit her in the head with a
wounds on
finally, strangled
victim.
(1981): When
Harper,
his
declined to
him and married
carcinogen, dimethylnitrosamine,
Harper
tested a
on his
Dimethylnitrosamine
disrupts
parents’ pets.
induces cancer and
clotting.
pets
After the
had died as a result of the
blood
dimethylnitrosamine,
ex-girlfriend’s
entered
Harper
his
put
dimethylnitrosamine
beverages
later
residence and
child,
ingested by
girlfriend’s
and an 11-month-old
his
husband
court,
noting
causing the deaths
the two victims. This
after
agonizing
that each victim had “died a slow and
death” and
experienced
suffering”
“extreme
as a result of
dimethylnitrosamine,
stated:
murders of
two
“[T]he
[the
coldly
were so
calculated as to indicate a state of mind
victims]
*29
totally
senselessly
regard
bereft of
for human life.” Id. at
576,
State v.
210 Neb.
We senselessly depraved totally and exceptionally of mind regard life: The (1) bereft of for human murders here were coldly planned part (2) as a of the robberies. The evidence clearly supports the conclusion that the were murders i.e., repetitive, be the defendant intended to continue on long his selected course of conduct his so as needs required. (3) victims were selected on the basis of certain characteristics which made it easier for the them, namely, ages. defendant to shoot their His unstated years conclusion was that a human life the middle is less younger valuable than a life. Reeves, 206, 344 N.W.2d (1984): After struggle during with degree the victim and the course of a first assault,
sexual
Reeves stabbed his victim seven
times
her
chest. The cuts on the victim’s hands “showed that
tried
she
defend herself from the defendant’s brutal attack.” Before
dying,
experienced
suffering.”
227,
the victim
“extreme
Id. at
“exceptional depravity” component aggravating clear-cut, (l)(d) specific circumstance are examples which meaning demonstrate phrase “exceptional depravity.” Other courts have held “depraved” that means debasement, “marked corruption, perversion or Gretzler, 42, 51, 659 1, 10 deterioration.” State v. 135Ariz. P.2d 971, 103 cert. (1983), denied 461 U.S. S. Ct. 77 L. Ed. 2d See, also, Morehouse, 1327. 120 N.H. 424 A.2d Therefore, (1980). finding concerning component this aggravating (l)(d) only circumstance must be not that the murderer depravity manifested but the murderer “exceptional manifested depravity.” The “exceptional” word sets the apart defendant’s act from the usual or norm of first degree requires murder cases and materially “a consciousness ‘depraved’ any person guilty more than that of of murder.” Godfrey Georgia, 446 U.S. 100 S. Ct. 64 L. Ed. 2d In this “exceptional depravity” manner phrase provision not a catchall imposition of the death penalty degree in first murder cases where none of the aggravating apply circumstances otherwise to the murder under examination.
[319] phrase “exceptional depravity” in 29-2523(l)(d) refers § Moore, pertains and to “the mind state of of the actor.” State v. 470,
supra
See, also,
at
By use of such as those Gretzler, supra, Supreme Court of Arizona in State v. there is a way distinguish” penalty “principled a death case from those penalty imposed, Godfrey death see cases where the is not v. 433, and, imposition in the Georgia, 446 U.S. at the death “ ‘by objective
penalty, to control discretion clear and ” non-discriminatory application,’ produce standards so as to 153, 198, L. Ed. S. Ct. Georgia, 428 U.S. Gregg *31 (1976). 2d 859
Therefore,
an
purpose
29-2523(l)(d)
of
as
§
determining whether the death
aggravating circumstance
“exceptional depravity”
may
imposed, we hold that
penalty
be
doubt,
shown, beyond a reasonable
in murder exists when it is
circumstances,
separately
either
or
following
that
degree
(1)
murder:
collectively, exist in reference to a first
killer;
relishing
by
(2) infliction of
apparent
of the murder
victim; (3)
needless mutilation of the
gratuitous violence on
crime;
victim;
(5) helplessness
or
of the
(4) senselessness
in reference
previously
victim. As we have
mentioned
“heinous, atrocious,
“exceptional depravity” as
cruel” and
disjunctive
aggravating
at
components of the
circumstance
finding
29-2523(l)(d),
support
the five factors which will
of
§
“exceptional depravity”
disjunctive.
in the
are also stated
Consequently, where one or more of those five factors are
present,
may
finding
“exceptional depravity”
there
be a
Further,
concerning
degree
we
a first
murder.
observe that one
circumstances,
above,
or more of those five factors or
listed
present
“exceptional depravity”
where
were
those cases
was
aggravating
found to exist as an
circumstance in the illustrative
involving
depravity,”
“exceptional
Nebraska cases
which we
previously
opinion, namely,
mentioned in
have
this
State v.
Holtan,
544, 250
Simants,
(1977),
Neb.
N.W.2d
197
876
State v.
549,
(1977),
Peery,
Neb.
Thus, heinous, atrocious, phrase “especially both the cruel” phrase exceptional depravity by ordinary and the “manifested morality intelligence” provide objective standards of imposing penalty, phrase standards in the death and neither is Simants, unconstitutionally vague. supra. Cf. State v. state, emphasize imply,
We
that we do not
nor do we
may
“exceptional depravity”
independent
not exist
heinous, atrocious, cruel,”
“especially
although existence of a
heinous, atrocious,
may
“especially
murder which
cruel”
well
”
relishing
“exceptional depravity, such as a murderer’s
establish
See,
gratuitous
murder
infliction of
violence.
the victim’s
Cooper,
(Tenn. 1986);
be the evidence finding beyond a supported would have such a reasonable murder doubt. facts of this case show that pitiless crime” which Zimmerman was a “conscienceless or unnecessarily physically victim. Defendant torturous to the him, bruises, cuts, by beating causing abused Zimmerman physical pain scratches. Zimmerman’s and mental are shown testimony appreciable of Cherie Palmer and found period of time endured Zimmerman while he awaited his *32 very death at defendant’s hands. Zimmerman’s stress and fear likely grew proportions lay he immense as bound and helpless before the murder.
The murder of exceptional Zimmerman also “manifested depravity” part on the of defendant. With Zimmerman bound bed, helpless on the there was no obstacle to defendant’s absconding property. with Zimmerman’s physical Defendant’s Zimmerman, bed, abuse of who was bound on the was unnecessary complete robbery. murdering In gratuitous upon Zimmerman defendant inflicted violence a helpless victim. beyond
The record establishes a reasonable doubt that murder exceptional depravity” Zimmerman’s “manifested aggravating that (l)(d) beyond circumstance exists a reasonable doubt. specifies mitigating
Section 29-2523 also seven circumstances required by as 29-2522. § 29-2523(2)(a)
Section states: “The offender has no significant history prior activity.” criminal The defendant’s prior convictions include a breaking 1959 conviction for entering, Act, a 1970conviction for two violations of the Mann buying, receiving, aiding 1974 conviction for or concealment of property, stolen and a 1975 conviction for transportation forged
interstate and altered securities. In significant history activity, view of the defendant’s of criminal mitigating this circumstance does not exist. influence, pressure, defendant was not under unusual or Therefore, person.
under the domination of another the record does mitigating not establish existence of the circumstance set out under (2)(b). 29-2523 §
Section 29-2523(2)(c) provides: “The crime was committed while the offender was under the influence of extreme mental or emotional disturbance.” support The record does not existence mitigating of this circumstance.
At the time of the years crime the defendant was 40 old. The mitigating circumstance 29-2523(2)(d), set out under which § provides mitigating youth for the age, factor of or extreme does not exist.
Mitigating (2)(e) circumstance exists when the offender was accomplice an in the crime committed another and the participation relatively offender’s Mitigating was minor. (2)(f) circumstance exists when the victim participant was a the defendant’s conduct or consented to the act. The record establishes that killing defendant alone did the and did not act as accomplice an participation relatively whose minor. Neither does the record establish that Zimmerman either participated any way in or in any Therefore, consented to act. there nothing in the record which support finding would mitigating either circumstance (2)(e) (2)(f) or exists.
Finally, the issue capacity appreciate defendant’s wrongfulness of his ability actions or his to conform his conduct to the law questioned. Therefore, has not been mitigating illness, defect, circumstance of mental mental intoxication at the time of the provided murder does not exist as *33 for under 29-2523(2)(g). §
The record reveals mitigating no other circumstances. H. Proportionality penalty. the death Finally, the argues that the sentence of death in this “greater case is erroneous because it is imposed than those in other circumstances,” cases with the same or similar disproportionate therefore is in violation of 29-2521.03. § 29-2521.01, 29-2521.02, Sections provide and 29-2521.03 analyze this court shall review and all involving cases 20, 1973, criminal homicide committed on or after April propriety determine the of the involving sentence in each case “by comparing criminal homicide previous such case with cases involving the same or similar expressed circumstances.” The purpose penalty is to ensure that the death applied should be uniformly arbitrarily. and not apparent
It is that the statutes they cannot be enforced as were written. The term homicide involving includes all crimes killing “the person by of a another.” Neb. Rev. 28-302(1) Stat. § (Reissue 1985). may A death imposed only sentence be in cases involving felony. a Class I Neb. Rev. Stat. 28-105(1) (Reissue §
1985). Williams,
In 56, 76, 205 Neb. 287 N.W.2d (1979), we noted interpret that to language of the statute literally “would create insurmountable constitutional problems.” We further noted that cases construing a similar Georgia statute reflected the obvious fact that it practical was a impossibility meaningful to make a comparison of a death sentence in degree a first murder case with a sentence imposed for another crime for which the death sentence was not authorized.
In the Williams case we construed the word “sentence” in
29-2521.03 to
§
mean a sentence of death and that
provisions requiring a comparison
previous
with
cases were
applicable only to cases in which a sentence of death had been
imposed. Finally, we concluded in the Williams case that the
imposed
sentence
was not
“disproportionate
excessiveor
to the
penalties imposed
death
in the
penalty
other death
cases.” 205
Neb. at
In
316 N.W.2d
(1982),
we
delineated some
why
of the
application
reasons
a literal
of the
statute would unconstitutionally encroach upon
judicial
function. In tht Moore
473-76,
case we stated at
Neb. provides: art powers “The § government of this state are divided into three distinct departments, legislative, judicial, executive and person no persons being collection of one of these *34 324 belonging any properly power exercise
departments, shall others, expressly except as hereinafter either of the powers, division of permitted.” A similar directed or Constitution, by to exist is held under the U.S. It and What implication. Corwin’s The Constitution 6-7, & C. Ducat Today (14th 204 ed. H. Chase Means at States, 394, 48 276 U.S. Hampton & Co. v. United 1978); Case, 2 Dall. 348, (1928); Hayburn’s 72 S. Ct. L. Ed. 624 409, 409, (1792). 1 L. Ed. 2 U.S. 436 imposes restrictions separation powers
The
of
doctrine
judicial
the
functions
legislative
the
branch to limit
upon
cannot,
Legislature
by subsequent
the
of
courts.
by virtue of a
legislation,
rights
divest
which have vested
Adams,
297,
judgment. City Wayne v.
156 Neb.
56
of
legislation
enact
(1952).
N.W.2d 117
It cannot
retroactively
judgment. Mooney v.
open or vacate a
District,
192, 278 N.W.
Drainage
rehearing
on
134 Neb.
622,
84,
59 S. Ct.
83 L.
(1938),
cert. denied
U.S.
jurisdiction
the
conferred
(1938).
Ed. 398
limits of
by
may
upon
Supreme Court
the Constitution
not be
by legislative
or extended
enactment. State ex
increased
676, 276
Barney,
(1937);
N.W. 676
Wright
rel.
v.
133Neb.
Wheeler,
(1892);
Miller v.
33 Neb.
We the constitutional must examine examining prosecutorial In foregoing legislative purpose. *35 independently necessity to discretion we would of have judicial not a gather gathering of evidence is evidence. one the executive. We would then
function but of think have been filed. charges determine what we should Again, prosecutor. We this is an executive function of the judgment the of a conviction would make a about chances against acquittal, again an function. We as an executive weigh advisability plea bargain to would need to the of a charge order to a secure conviction on a lesser in avoid a clearly likely charges. all acquittal of These are all judicial not executive and functions. all
It mind that not homicide must be borne in following in to court. appeals convictions result this Legislature’s judicial into the illustrates the intrusion charged person a is with under 711. If function L.B. degree a degree first but convicted of lesser
murder in the homicide, literally, we applied if 711 is to of and L.B. be us, then, reviewing case before purposes would of the the disregard factfindings jury of the in so-called the procedure case. a would be “analogous” Such constitutionally objectionable of for a number reasons.
First, in a require court to find facts case not it would this attempt by Secondly, an the before it. it would constitute factfindings of Legislature one case to make the in on It another case review. determinative sentence cited, we earlier that plain principles under have that is an legislation to achieve such results attempts which function, contrary to the judicial intrusion on II, doctrine, violates article and thus separation powers of 1. § to would be L.B.
Another effect of powers review of unconstitutionally appellate restrict Const, I, that as art. § this court under Neb. legislation by requiring it attempts to bind this court imposed “analogous” in some in apply sentences case applying court. that district It is clear such standard right restrict a independent would defendant’s to an review I, 23, Rights this court under article of the Bill of of § provides: our Nebraska Constitution. This section “In all felony right cases shall have of appeal of defendant Court; Supreme capital and in appeal cases such operate stay supersedeas shall as a of execution death, Supreme sentence until further order Court.”
Upon this closer review of L.B. it is clear the Legislature attempts judicial in that act to exercise the in function violation of the Constitution. Sections and 3 of L.B. must be application restricted their to a comparison only in this court those cases in which the in the District Court has been convicted of degree. murder the first
(Emphasis supplied.)
In brief the his defendant cites a number of cases which a imprisonment imposed. sentence to life argues He then *36 the cited cases involved the or same similar circumstances as this imposed is, case and the therefore, that sentence in this case disproportionate. excessive and by
One of the cases cited Floyd, the defendant is State a County, Nebraska, Hamilton in case which appeal no was taken Moore, In 457, 477, this court. 316 N.W.2d 33, 44 (1982), in an reference to exhibit relating Floyd to the case, “Although we specifically said: not argued, clearly it appears apparent the purpose introducing of the exhibit was to raise of the issue whether isolated an case in which the death penalty perhaps should been imposed, not, have but was governs becomes the standard which capital all cases before this rejected court.” argument, largely We the upon the basis that it was impossible to tell from the limited record before us whether Floyd However, should have been sentenced to death. we concluded also that an case isolated should not be standard other which all judged. sentences must be sentencing
Evenhandedness in goal is a for which all courts however, purpose it was the perceive, We do not that strive. sentencing all in Legislature eliminate discretion every which be in case in penalty imposed
ensure that death imposed not in penalty or that the be possible it a sentence is it it in certain other cases appropriate in which because cases although appropriate it been an imposed, might not have was of the is best purpose We think the dominant statute sentence. that by the in sentence
expressed provision 29-2521.03 § “[n]o with greater imposed be than other cases imposed shall those the same similar circumstances.” possible be the statute so that cases
It would construe imposed, although upon penalty the death was not which penalty might that have reflection it could be said the death against which all future imposed, been would be standard By penalty compared. process would be death cases narrowing in a of the “attrition” this would result substantial possible would group penalty of cases in which the death be a and, eventually, practical purposes, for all could sentence repeal penalty. to a the death We do understand amount not Legislature repeal to effect that the intended statute judicial that the penalty. death We take notice of fact Legislature repeal penalty has bills to the death considered many years, but a has never law. repeal times recent become recently, (L.B. a legislative purpose Most bill for that 89th indefinitely Leg., Sess.) postponed Legislature’s 1st 16,1986. adjournment April on examined,
Whatever final act of which cases are review perform this court must is to determine the sentence “[w]hether disproportionate penalty imposed of death is to the excessiveor cases, considering in similar both and the defendant.” the crime function, In 29-2522(3). perform for this court to that § order imposes also that trial court requires section when the sentence, writing be in with death the determination must aggravating mitigating reference to the circumstances requirement There when the sentence is involved. is no similar imprisonment. life
Accordingly, way knowing whether is no of this court’s there in a any aggravating present were mitigating circumstances Therefore, given no other case unless death. the sentence was can be to be case but death sentence case said a case similar to that under review. Harris, Pulley Ct.
In v. 465 U.S. 104S. 79 L. Ed. 2d (1984), the U.S. held Supreme Court that the U.S. court, require Constitution not a state appellate does before it sentence, compare affirms a death the sentence in case penalties imposed cases, it with although before in similar by requested prisoner. to do so In death cases the requirements proportionality of the U.S. Constitution are procedure identifying aggravating satisfied for mitigating meaningful appellate circumstances and review. Pulley
In the Court stated at 54:
Any capital sentencing may occasionally scheme produce aberrational outcomes. Such inconsistencies are a cry major systemic in far from defects identified Furman. we have acknowledged past, As in the “there can perfect procedure deciding be ‘no in which cases governmental authority should used impose be ” U.S., Stephens, death.’ Zant v. at quoting Ohio, Lockett v. 438 U.S. (1978) (plurality opinion).
(Emphasis supplied.) Gregg Georgia, 153, 199,
In 428 U.S. 96 S. Ct. 49 L. Ed. 859 (1976), “Nothing any 2d stated: Court in of our suggests cases the decision to an afford individual mercy violates the Constitution.” prior In some our decisions we have indicated that the proportionality review in all penalty death cases is a comparison of the facts and degree circumstances in all first cases, murder whether the penalty imposed was death or life imprisonment. Upon further question consideration this we have concluded that the only review should include those cases penalty which death imposed. Since there is an cases, appellate automatic review all such we have before us upon rely records we making analysis which can comparison. important
An distinguishing present factor that is in all death penalty adjudication cases is an that there are one or more aggravating circumstances which are outweighed any not *38 mitigating Although of an circumstances. existence aggravating circumstance does not that the death ensure penalty imposed, adjudication will be the absence of an that at aggravating prevents least one circumstance exists the death penalty being imposed. from Supreme Court of South Carolina has determined that proportionality review which it makes death cases under a
similar statute should be limited to other cases which the penalty death imposed. Copeland, In State v. 278 S.C. 63, 71-72 (1982), cert. denied 460 U.S. 586-87, S.E.2d 103 S. Ct. 76 L. Ed. 2d (1983), that court stated:
Appellant Copeland constitutionality attacks the penalty regime South Carolina death on the basis of this interpretation Court’s 16-3-25(C) of the Code. § Assembly The General of South clearly Carolina has policy made the determination proportionality review capital this Court shall be accorded defendants actually who receive language a sentence of death. The 16-3-25(C) puts questions three § before this Court for given review in a case:
1. Whether sentence of imposed death was under the passion, prejudice, any influence of arbitrary or other factor,
2. Whether the evidence supports jury’s judge’s finding statutory of a aggravating circumstance as 16-3-20, enumerated in section
3. Whether the sentence of death is excessive or disproportionate penalty to the imposed in similar cases, considering both the crime and the defendant.
It is the inquiry third which proportionality constitutes statute, review in South Carolina. Under the the task of defining “similar cases” and with it the scope any comparative analysis plainly properly left to this below, Court. As statutory indicated both the language give and the nature of the perplexity. is, task rise to There all, logic after some to the view that the heinous crime is generis, beyond sui simply comparison.
Then,
discussing
after
any
the absence of
federal
requirement
review,
constitutional
proportionality
of a
590-91,
court stated at
We conclude from the that the contours of review, exists, proportionality where it have been left to Supreme state determination the U.S. Court has since impose any specific upon declined of review model 16-3-25(C) represents states. of the Code an act of § legislative grace by Assembly the General which we are required interpret in accordance with sound rules of statutory construction. view, only
In our the search for “similar cases” can begin with an actual conviction and sentence of death *39 by rendered a trier of fact in accordance with 16-3-20of § findings by the Code. We consider such the trial court to requirement be a comparative study threshold for only “similarity” indeed the foundation of consonant appellate with our role as an court. recognize jurisdictions
We in some reviewing commentaries it is felt that the court should compare given a death sentence with a “universe” of cases which imprisonment, includes sentences of life acquittals, reversals and even mere indictments and arrests. Under regime, reviewing only such a court could determine sample by the size of its arbitrary “universe” some court, findings by contrast, device. Fact of the trial provide a fundamental line of demarcation well recognized by legal in and even exalted our tradition. The importance decisive findings by of such is evidenced V, language of Article section South Carolina Constitution, which limits our review to “correction of equity errors at law” in all but cases. expand
To the notion of a “universe” would also entail speculation by intolerable this Court. Under South statute, jury required Carolina is not to state its reasons failing for given to recommend a sentence of death. In a case, alleged aggravating may circumstance not have proven been jury, to the satisfaction of the while in another (expansively defined) statutory “similar case” mitigating mitigating circumstances or some factor “otherwise authorized may or allowed law” have imposition of deterred the death sentence. conjecture pure Court would enter realm of if it
This attempted compare and contrast such verdicts with an They represent mercy of actual sentence death. acts yet which have not been held to offend the United States Moreover, they upon Constitution. reflect emphasis sentencing individualized mandated the United States Supreme subject Court. We will not these verdicts to scrutiny pursuit cases,” in phantom “similar when a ready meaningful sample at lies hand in those cases where jury spoken has unequivocally. Similarly, Nash, in State Ariz. P.2d 222 (1985), Supreme the Arizona proportionality Court limited its penalty review to in which imposed cases the death had been and the affirmed sentence or reduced. recognized
It must be two that no death cases are the same. greatly case, vary facts from case to and the cases cannot be comparison any “color-matched.” The death facts case previous with the penalty facts cases in which the death has imposed been can at general best be in nature. case,
From our review of the record this review and the all imposed records in cases in which the death sentence was 20, 1973, April offenses committed on or after we have penalty imposed concluded that the in this case is neither disproportionate penalty excessive nor imposed in the cases, considering earlier both the crime and the defendant. *40 judgment
The of the district court is affirmed.
Affirmed. White, J., concurring. struggled
This court has apply provisions to the Neb. of Rev. seq. Stat. 29-2521.01 et (Reissue 1985) passage. since their §§ difficulties, semantic, The both constitutional and have been extreme, pointed majority well opinion. agree as is out in I a compare that to case in is a finding guilt which there of of first degree with only murder a of a lesser conviction homicide is not difficult, impossible. Any it requisites case where the of either felony intentional, murder or premeditated murder have not day been as night found is different as from where a case such determined, judicially requisites are if for no other reason than in requisite facts one judicial the fact of determination not the other. case and appellate court. to our role as an
We must adhere judge jury waived case or on by jury a in a findings of fact or binding We do not have the acceptance plea are on us. of a higher degree. We authority the crime was of a to determine that not, imposition nonimposition or may in a matter so vital as the speculate as to decisions of the executive penalty, of the death degree seeking higher of in conviction of branch not homicide, by question the factual nor our decision determination of the fact finder. however, not, agree only possible reasonable or
I do that comparison limit the to cases application of 29-2521.01 is to § penalty imposed. penalty been in which death has degree imprisonment murder is either life or death. That first degree is considered in all convictions for first sentence decision rejection It me that the of a sentence of death murder. seems to judges judge panel important of is as penalty. The proportionality imposition as the of such a task difficult, comparison, though impossible is neither nor and, therefore, constitutionally we commanded prohibited, are further, however, comparison. I to make that state that case, degree subject all murder with the comparing first cases disproportionate. is not I therefore concur in the sentence result. J., joins in this concurrence.
Shanahan, J., concurring part, part dissenting. C. in and in Krivosha, opinion adopted by majority in I concur as insofar as finding it concludes that no error was committed Palmer guilty degree agree I am respects of first murder. unable to all majority’s analysis penalty with the must therefore part part concur in and in dissent. reaching quick acknowledge
In that decision I am that the science, law is an art and not an exact and therefore honest disagreements may among exist even members of a court. out, undertaking analysis point
I further wish to before an differences, my any our conclusions are not manner but, rather, by personal are controlled affected views honest
[333] adopted by the meaning the law as disagreements to the of as may What I think about Legislature the State of Nebraska. decision, may the and the decision totally is irrelevant to
the law
matters is what I think
my personal
not reflect
views. All that
and
respect majority
the
law
about the matter. In that
the
thinks
disagree
injecting
personal
our
may honestly
I
without either
making
respective
in the
of our
decisions.
views
be,
not,
Obviously,
I as a matter of law
I am
nor could
and
opposed
penalty.
death
See State v. Anderson
the
Hochstein,
51,
denied
(1980),
Neb.
N.W.2d 440
cert.
207
296
1731,
(1981),
L. Ed. 2d 219
1025,
S. Ct.
68
U.S.
101
450
Joubert,
411,
(1986), cases
N.W.2d 237
post p.
v.
State
court or
majority opinion for the
the
in which I either wrote
majority
upholding
in
the
opinion
concurred in the
of the
Furthermore, even in those
imposition
penalty.
of the death
basis that I do not believe
cases in which I have dissented on the
statutes,
imposed
with
penalty
in accordance
Nebraska
majority
subsequent postconviction
I
have voted with
in
legal questions
involved
presented
when the issues
to us
cases
imposed
been
penalty
other than whether the death
had
See,
by
Legislature.
accordance with the law as enacted
Holtan,
State v.
(1984);
216 Neb.
embodied in the Mosaic can be Code immoral. *42 societies, through ages,
It is that true some the have in in capital punishment discriminated the manner which has been administered or have it in imposed a barbaric manner. Neither of actions But those can be condoned. the society imposition mere fact prescribes that the of the penalty in appropriate death an it case does not cause to be either or immoral unethical.
I therefore do not believe the penalty that death itself violates eighth do, the however, amendment to the I U.S. Constitution. majority that believe the in this is in in case error its interpretation certain provisions of Neb. of Rev. Stat. 29-2523 and (Reissue 1985).
§§ 29-2521.02 to 29-2521.04 I shall attempt point now out I majority wherein believe the inis error. majority
The has concluded provisions that of 29-2523(l)(d) separate contain prongs § two which are disjunctive. prong, The first according majority, to the is that heinous, “especially atrocious, the murder cruel,” while prong second is that the murder “manifested exceptional by ordinary depravity morality standards of intelligence.” and language rather, This language court; is not created it is language of the adopted by Legislature statute as in 29-2523(l)(d). §
Then, in an effort to avoid an attack that the prong second is invalid vague, because it is too the majority very has properly attempted meaning to refine the prong by setting second factors, any out five says may one of which it be sufficient to establish the prong second (l)(d). It here I where have difficulty. It appears to me the majority that has defined the prong second (l)(d) either in terms prong of the first or in which terms I believe precise are no more statutory than the prong words second itself. already indicated,
IAs have quarrel I have no with the majority in attempting to prong redefine the second of (l)(d) in give order to certainty. Legislature, it having failed to sufficiently either prong define the first or the second prong of (l)(d) with sufficiency, constitutional has left the court with no other choice.
[335] Supreme Gregg by majority, the U.S. Court As noted 188-89, Ct. L. Ed. 2d U.S. S. Georgia, v. part: (1976), held Furman uniqueness penalty, of the death
Because of sentencing be under imposed it not held that could it would be risk that procedures that created substantial .. . arbitrary capricious an manner. inflicted in is afforded a that where discretion Furman mandates body as sentencing grave a matter the determination on so spared, taken of whether a human life should be suitably so must directed limited as to discretion be arbitrary capricious wholly minimize risk of action. case further observes that majority this then Supreme Godfrey Georgia, the U.S. Court held in
thereafter 420, 427-28, 100 Ct. L. (1980): 446 U.S. S. 64 Ed. 2d 398 *43 must, short, sentencing provide A in capital scheme a “ ‘meaningful distinguishing few in basis for the cases many penalty] imposed from the in which is cases [the ” Id., Georgia, not.’ at v. quoting which it is Furman J., (White, concurring). supra, at 313 capital to
This means that if a State wishes authorize punishment responsibility it has a constitutional tailor arbitrary apply and its law in a manner that avoids the and a capricious penalty. infliction of the death Part of State’s regard to define the crimes for responsibility this is may way the in a that obviates which death be sentence [sentencing] discretion.” “standardless [Citations by It sentencer’s discretion must channel the omitted.] objective provide “specific and “clear and standards” that guidance,” rationally and “make reviewable detailed that As process imposing a of death.” the sentence “system could have Gregg, penalty made clear in a death adequately to vague they standards so would fail juries with the sentencing patterns channel the decision of sentencing capricious pattern arbitrary that a of result could occur.” found unconstitutional in Furman like that U.S., at n. 46. all is that in order for The of of this sum substance muster, 29-2523(l)(d) pass statute as constitutional it such § may vague meaningless so broad not be so that it is that it may arbitrary be used an fashion. If reasonable minds can honestly disagree meaning, satisfy as to its the statute fails to its requirement. say, may constitutional That is to the standards be simply in fact language. no standard because of their opinion majority’s in defining I am of the that the effort prong (l)(d), though what it has described as the second of intentions, made with the best of fails the act with to define clarity requisite anything or do more than redefine the first cannot, prong therefore, (l)(d). prong (l)(d) of second of alone, justify standing imposition penalty of the death as prescribed Legislature. I by attempt point shall now out majority regard where I believe effort of the in that fails. majority may has said of prong (l)(d) that the second be factors,
established if one or of five more either alone or together, by beyond are established the evidence a reasonable relishing apparent doubt. The five factors are: (1) murder killer; (2) victim; gratuitous infliction of on the violence victim; (3) mutilation of (4) needless senselessness of the crime; helplessness (5) of the victim.
According Supreme to both the majority, U.S. Court and the purpose defining prong the second in definite terms is to “ provide ‘meaningful for distinguishing basis the few cases penalty] many imposed which from the cases in which [the ” it Gregg Georgia, supra is not.’ at 188. And as further majority: noted “The word ‘exceptional’ sets the apart defendant’s act from usual or degree norm of requires first murder cases and ‘a consciousness materially “depraved” any more than that person guilty ” my majority murder.’ In view the factors five which the now *44 says prong establish the second (l)(d), separate of which is and apart prong from the first (l)(d), of are too either broad to satisfy requirement they narrow the in which cases may death penalty nothing be imposed or are more than a repeat of the definition prong of the first and therefore cannot stand alone.
I turn crime,” first factor (4), the “senselessness of and (5), “helplessness factor victim.” factor (4), As to I am any murder which sense. It occurs to unable to envision makes that, minimum, all, all, nearly if murders are me at a not best, senseless, commonly At this as that term is understood. opinion.
factor creates an honest but substantial difference of Therefore, it (4) factor must fail either because any all-encompassing vague. or because it is too In event it certainly “exceptional” is not evidence of an act. Even if one sense,” conjure up can a few cases in which the murder “makes agree, a fact with which I am unable to the definition of factor (4) exception. majority, will be the norm rather than the therefore, “exceptional” read the word of the act and has out prong merely “depraved made the evidence of a mind” second “exceptionally depraved rather than an mind.” The word but, rather, “exceptional” is not the court’s word Legislature’s word.
And, event, any a factor defined in terms of the precise “senselessness of the crime” is no more than our earlier prong (l)(d) definition of the second to the effect that the “totally “exceptional depravity” murder manifests if it is case, senselessly any regard In either bereft of for human life.” prong, by majority, defined are words second as “suitably and limited to minimize the risk of not directed so as wholly arbitrary capricious Gregg Georgia, action.” v. 153, 189, Nor, (1976).
U.S.
96 S. Ct.
*45 100 S. likewise, my (5), limiting In view factor offers no better few, any, will (4). standard than does factor In if cases usually helpless. helplessness victim than It is this be other which, unfortunately, being in the able results murderer’s her What I have out in some detail complete his or act. set In view of the regarding applied factor can be to factor (4) only majority fact that the has declared that not is the second prong disjunctive from the first but that all five factors (l)(d) disjunctive, appear that the death are themselves it would beyond a imposed be if the evidence established penalty could [338] or that that the “murder was senseless”
reasonable doubt view, cannot, my an establish helpless.” “victim was That opinion I am therefore of the depraved mind.” “exceptionally by alone, defined that, prong, as now on this basis second constitutionally majority, invalid. is history which However, of the I believe that an examination including of a (l)(d), the creation adoption led to the convincingly that in prong, the first establishes definition for “or only prong phrase and that the (l)(d) fact consists of one nothing than a further exceptional depravity” is more manifests heinous, atrocious, phrase “especially explanation of the issue, necessary my it point cruel.” order to make on this is In history regarding “especially heinous” review some of phrase. Code, act, Penal from which much of our Model taken, different
particular
29-2523(l)(d), was
was somewhat
§
ultimately
Legislature. Model
enacted
our
what was
from
was
“The murder
(1980) reads:
210.6(3)(h)
Code
Penal
§
atrocious,
cruel, manifesting exceptional
heinous,
or
especially
why
between “atrocious”
or
the word “or”
depravity.” How
prong
and the second
between “cruel”
and “cruel” was moved
we
considers how
anywhere explained. But when one
not
we
defined
how
have
“especially heinous” and
have defined
(1), (2),
depraved,” it
to me that factors
“exceptionally
seems
prong.
(3) define one and the same
long
cases, apparently having
inception
In a
line of
its
Dixon,
(Fla. 1973),
That accepted phrase has become the heinous, atrocious, “especially or cruel.”
Furthermore, just an examination of some of the cases even makes definition as set out above clearer. 1, 24-25, 257 Goodman,
In State v. N.C. S.E.2d (1979), the North said: Carolina court may 15A-2000(e)(9) jury
G.S. states that the consider as aggravating justifying imposition an circumstance “capital felony penalty death fact that the heinous, especially atrocious, While we or cruel.” recognize every is, arguably, heinous, murder at least cruel, atrocious, and we do this not believe that subsection *46 By every using is intended apply homicide. word “especially” legislature indicated that there be must brutality evidence that in the murder involved question normally present any killing must exceed that jury upon before the would be instructed this subsection. Rust, Stewart, supra; supra;
State v.
State v.
State v.
Simants,
549,
881,
denied,
197Neb.
250 N.W. 2d
cert.
434
(1977).
U.S.
S.Ct.
54 L.Ed. 2d
98
158
provision concerning
aggravating
The Florida
this
Supreme
factor is identical to ours.
Court
Florida’s
has
said
provision
that this
is directed at “the conscienceless or
pitiless
unnecessarily
crime which is
torturous to the
Dixon,
(Fla.
victim.” State
1973),
v.
denied,
[sic],
416 U.S.
94 S.Ct.
40
2d
1950
L.Ed.
295
also,
(1974);
Alford,
(Fla.
see
366 So. 2d 1979). We too believe that this is an appropriate language construction of this provision. construction, this (e)(9) Under subsection will provision not become a all” always “catch which can be employed in where cases there is no evidence of other aggravating circumstances. Monroe, 1258, 1274-75 (La.
And in State v. 397 So. 2d 1981), Court, case, Supreme the Louisiana in a said: murder Although jury found the instant offense to have heinous, “especially been in an committed atrocious or manner,” finding cruel It this cannot stand. is true that the murder quarts was brutal —the victim lost over two her ribs was
blood, and one of lungs punctured were her instantaneous, and she lived Her death was not severed. daughter and reach for the enough for her long to call out telephone.
Nonetheless, “especially be for a murder to in order heinous,” that there was exist evidence there must unnecessary pain on infliction of pitiless “torture or the 815, 823 English, v. 367 So.2d the victim.” State Clark, (La. 1980), 1979). v. 387 So.2d (La. State by “especially what meant provides example an the victim the defendant stabbed heinous.” In case thirty-five shooting gun. him with a In the times before kill, case, were inflicted to not to instant the “wounds Culberth, 851. pain.” supra, inflict at maim or to case that the offense While there is some evidence this cruel, beyond proved it not was heinous and especially doubt that the instant offense was reasonable heinous.
(Emphasis supplied.) State, Hopkinson (Wyo. 1981),
In
We with conclusion. The statute jury’s properly sentencing does not fail to channel the grant it unfettered decision and does not discretion impose arbitrary capricious penalty death for First, requires jury reasons. the statute to find the heinous, murder “especially to have been atrocious or Dictionary cruel.” Webster’s Third New International “hatefully shockingly defines or evil.” Thus the heinous as just hatefully “especially term is more than or heinous” classified, murder, shockingly to be so must evil. the defendant the consciencelessness demonstrate that dangerous and only outrage but also an is not Only this is found society. when threat to unrestrainable categorized especially as be properly the murder can regarded in this very murders can be Since few heinous. vague.
manner,
impermissible
the term is not
with that of the
Wyoming court is in accord
The view of the
242, 255,
Florida, 428 U.S.
v.
Supreme Court. In
U.S.
Proffitt
reh’g
U.S.
(1976),
denied 429
Ct.
In circumstances, statutory aggravating which authorize the “especially if the crime is penalty imposed death to be heinous, atrocious, cruel,” if or or “[t]he many knowingly great persons.” of death to created a risk 1976-1977). provisions These 921.141(5)(h), (c) (Supp. §§ they by the must be considered as have been construed Supreme Court of Florida. recognized arguable that while it is “that
That court has [s]till, we believe killings all are atrocious . . . that heinous, Legislature something ‘especially’ intended penalty when it authorized the death atrocious or cruel State, 2d, degree 322 So. at first murder.” Tedder 910. eighth that the consequence,
As a the court has indicated statutory provision only directed at “the conscienceless unnecessarily pitiless crime which is torturous to victim.” simply necessary to be made between what is distinction pointed out especially and what is heinous is
heinous State, (Ala. 2d 1044 Crim. Alabama court in Berard v. So. 1981), trial court found that the homicides
App.
in which the
imposition
therefore ordered the
were “brutal” and
discussing
In
matter the Alabama court said
penalty.
death
conform
“That the homicides were ‘brutal’ fails to
at 1050:
requires
finding that
the crime was
13-11-6(8) which
§
*48
heinous,
(Emphasis supplied.)
‘especially
atrocious or cruel.’
brutal,
requires
but the statute
more.”
The crime was
fact
State,
Later,
McCray
(Fla.
Similarly, State, in Clark v. (Fla. 443 So. 2d 1983), again Florida court said:
Directing pistol
shot to the head of the victim does not
heinous,
establish a
especially
atrocious,
homicide as
or
State,
cruel. Kampff v.
454 So. 2d (Miss. 1984), considered “especially heinous, atrocious or cruel” provision statute, saying its at 464: is intended “especially heinous, words
[W]hat cruel”, atrocious or capital “are those crimes where the actual felony commission of the accompanied by such additional facts as to set the apart crime from the norm of capital felonies—the consciencelessness pitiless [sic] crime unnecessarily which is tortuous victim.” [sic] During year, Florida, that same State, in Gorham v. 454 So. 2d (Fla. 1984), held that where penetrated one shot heart, victim’s causing seconds, death within 10 and where the disproved evidence any possibility prolonged and torturous captivity and there was no evidence whatsoever that the victim
[343] died, he than moments before certain death more apprehended penalty support of the death aggravating circumstance the heinous, atrocious, cruel, and especially that the murder was having thereafter upon the victim’s been being based as it was back, be sustained. shot twice in the could not Gorham, supra at doing said in 559: In so the Florida court course, was, unjustifiable murder a cruel and “While the of deed, nothing apart it to ‘set the crime from the there is about ” that the capital felonies.’ The evidence indicated norm of already the next two shots were fired. victim was dead when upon its notion that position The Florida court’s was not based that, but in order the murder was not terrible or even heinous permit and not for the statute to be constitutional case, imposition penalty every aggravating of the death “especially interpreted must be to be circumstance heinous” limited to few in which the murder was committed in those cases such a manner as to cause torture to the victim before death in a pitiless way. This distinction is made not conscienceless but, rather, sensitivity because the courts are without because clear, may rigid penalty imposed the death not be unless See, State, 2d 444 Thompson standards are first met. v. 456 So.
(Fla.
State,
(Fla.
2d
1984);
1984);
Rembert v.
445 So.
337
State
Wilson,
(La. 1985).
In at its conclusion that second factors, disjunctive separate majority and consists of five by Supreme upon has relied similar action taken the Arizona Court, and, Gretzler, particular, its decision in State v. 135 42, 659 971, 103 Ariz. P.2d 1 S. Ct. (1983), cert. denied 461 U.S. Supreme L. Ed. 2d wherein the Arizona Court adopted
set out the five factors now this court as the prong (l)(d). definition of second it, difficulty analysis
As I see with that is that Arizona appears “especially to make no distinction between heinous” majority “especially depraved,” as does the herein. with, begin
To the Arizona statute is not the same as (Supp. 1986) Nebraska’s. Ariz. Rev. Stat. Ann. 13-703F.6. § especially reads: “The defendant the offense in an committed heinous, depraved cruel or manner.”
Furthermore, Supreme the Arizona Court uses five only not “depraved” factors to define but to define “heinous” as well. Smith, 491, 503,
In State v. Ariz. 707 P.2d (1985), Supreme the Arizona Court said: “depraved”
“Heinous”
are characteristics
reflecting the
perpetrator
mental state and attitude of the
Gretzler,
of the crime. State v.
135Ariz. at
659 P.2d at
Gretzler,
10. In
may
we listed several factors which
lead to
finding
depravity.
heinousness or
(1)
apparent
relishing
killer;
of the murder
(2) the infliction of
gratuitous violence
beyond
on the victim
the murderous
*50
itself;
act
(3)
victim;
the needless mutilation of the
(4) the
crime;
senselessness of the
(5)
helplessness
and
of the
52,
victim. Id. at
(Emphasis See, also, supplied.) Clabourne, 142 Ariz.
335,
P.2d 1 my In view Supreme the Arizona opinion Court supports my only assertion two, that there is prong one and suggested not as by majority.
With background that in mind I now examine what the majority has created as (1), (2), factors (3) and of the second prong: (1) apparent relishing killer; the murder (2) gratuitous infliction of victim; violence on the (3) and needless mutilation of the victim. It seems to me that no matter what gloss placed upon is (1), (2), (3), they factors and constitute a murder which is pitiless, conscienceless or and was unnecessarily Therefore, torturous to the victim. disregard if I (4) (5) factors vagueness, because of appear I to be left with nothing more than a “especially definition of heinous” for “especially depraved.” It is for these I join reasons am unable to majority with the in concluding that there are two distinct prongs to 29-2523(l)(d). I believe only one, § that there is and I would so hold.
That leads me to the second in area which I am unable to agree majority. with the I do not believe majority that the is limiting correct in proportionality review required by the provisions of 29-2521.02 to only §§ 29-2521.04 to pool Nebraska cases which the penalty death has been imposed 20, April since majority opinion 1973.1 believe that the in that regard is incorrect (1) for at least three plain reasons: language review; permit act does not such a (2) The clear Legislature intent of the contrary majority view; is to the sense, (3) light objective Common sought to be accomplished by Legislature expressed itself, as in the act contrary majority to the view. For reasons which I will detail fully hereafter, more I required believe that we are to compare appeal case on with all other involving cases of homicide same or similar regard circumstances without penalty to the imposed.
The current prescribing Nebraska statutes when the death penalty imposed is to be acts, are a combination of separate two passed one in 1973 and the other in having the acts been slightly See, modified in Laws, 1978 and 1982. 1973Neb. L.B.
268; Laws, 711; Laws, 1978 Neb. 748; L.B. L.B. Laws,
1982Neb. L.B. 722. principal adopting reason for this series of statutes is clear. In in the now famous case of v. Georgia, Furman 408 U.S. S. 92 Ct. 33 L. Ed. 2d (1972), the U.S.
Supreme Court held that absent prevent standards which a state imposing from penalty the death arbitrary in an discriminatory manner, authorizing statutes the use of the penalty death eighth violate the amendment to the U.S. Constitution. In apparent an effort to problem, solve that Legislature, Nebraska adopted Specifically, L.B. 268. *51 (codified
L.B. 268 as Neb. Rev. (Reissue Stat. 29-2519 1975)) § set out the intent Legislature provided: Legislature hereby
The finds that it is reasonable and necessary mandatory to establish standards for the imposition death; imposition of sentence of that the of every penalty death in instance of the commission of specified the crimes in section fails to allow for 28-[303] mitigating may against factors which penalty dictate of death; and that imposition rational of the death requires sentence specific legislative the establishment of guidelines applied by to be in individual cases the court. Legislature The therefore determines that the death penalty imposed only should be the crimes set for forth in only addition, be and, that it shall in
section 28-[303] aggravating when those instances imposed in with the crime existing in connection circumstances circumstances, set forth as mitigating outweigh the to 29-2524. sections 29-2520 contrary the view held may be This supplied.)
(Emphasis death, but it is put be anyone who kills should some L.B. 268. enactment of expressed its Legislature as will of the aggravating adopted a list of Legislature then considered mitigating to be circumstances circumstances Supreme thereafter sentencing court and by the first being Supreme to the Court appeal appeal, Court on 1985). The (Reissue Rev. Stat. 29-2525 See Neb. § automatic. aggravating unless the imposed be is not to penalty death Neb. mitigating circumstances. outweigh the circumstances (Reissue 1985). Rev. Stat. 29-2522 § however, Supreme to the Court’s step, was added
A second adopted L.B. Legislature when the in 1978 procedure review Laws, 711 the adopting 711. In L.B. L.B. 711. See 1978 Neb. legislative findings which specific Legislature made further (Reissue Rev. Stat. 29-2521.01 the law. Neb. part § became a 1985)provides: hereby that: Legislature finds human possession valuable of a Life is the most
(1) it, apply and taking the state should being, and before of fairness and scrupulous the most standards follow uniformity; enormity and penalty, because of its
(2) The death arbitrarily imposed nor as a result finality, never be should hysteria; public prejudice of local uniformly throughout applied be
(3) State law should penalty is a statewide law an the state and since the death in a death sentence in one offense which would not result in death in a different portion not result state should portion; similar Charges resulting from the same or
(4) have, uniform and past, in the not been circumstances results; differing radically produced have uniformity the lack compensate In order to (5) *52 charges which are filed as a result of similar circumstances necessary Supreme it is for the Court to review and analyze all criminal homicides committed under the existing produces law in order to insure that each case result similar to that arrived at in other with the cases same or similar circumstances.
(Emphasis supplied.) carry legislative mandate,
To Legislature out that then imposed upon only to, Supreme obligation Court an within July analyze reasonable time after review and all involving cases criminal homicide committed April on or after provides: 1973. Section 29-2521.02 “Such review and analysis (1) including mitigating shall examine the facts aggravating circumstances, (2) charges filed, (3) the crime convicted, for which defendant was and (4) the sentence imposed. updated Such review shall be as new criminal homicide (Emphasis supplied.) cases occur.”
Using cases, compilation this Supreme Court is required, upon appeal, propriety determine “the sentence in involving each case a criminal homicide comparing previous such case with involving cases the same or similar circumstances. No imposed greater sentence shall be than imposed those similar other cases with the same or circumstances.” 29-2521.03. § plain language of the act seems to make it clear that all
criminal reported homicide cases are to be Supreme to the Court, Supreme review, Court and that the conducting its to look at all of these compare cases and to then the case on appeal with those other having cases same or similar circumstances, penalties, not to determine whether imposition of penalty the death in the appeal case on is more severe than imposed having in other cases same or similar pointed opinion circumstances. As out our in State v.
Williams,
In that review to be proportionality *53 require a Court does not by noted penalty. As imposing the death before conducted 37, 42-45, Harris, U.S. Pulley v. majority, in the case of Court Supreme U.S. (1984), Ed. 2d Ct. 79 L. S. held: identify outset, clearly the issue we more
At the should has been used Traditionally, “proportionality” us. before evaluation of to an abstract with reference particular a crime. sentence for appropriateness of a severity of gravity the offense and the Looking to the crimes, and to imposed for other penalty, to sentences Court has jurisdictions, this sentencing practices in other inherently punishments as occasionally struck down unusual, cruel when and therefore and disproportionate, category crime. .. . imposed particular crime or Furman, capital that the Court concluded ... In vesting under statutes punishment, as then administered judges, sentencing juries trial unguided discretion and unconstitutionally cruel and unusual had become being imposed penalty was so punishment. The death J., discriminatorily, id., concurring), so (Douglas, at 240 id., -J., wantonly freakishly, (Stewart, at 306 and id., J., (White, infrequently, at 310 concurring), so cruel concurring), any given that death sentence was decision, roughly two-thirds response unusual. In to that sentencing capital redrafted their promptly of the States jury an limit discretion and avoid statutes in effort to arbitrary . . . and inconsistent results. Furman, years
Four after this Court examined several upheld of the new state statutes. We one of each of the Gregg Georgia, supra; three sorts mentioned See v. above. Florida, Texas, 242 (1976); 428 U.S. Jurek v.
Proffitt
say,
The U.S. holding that thus no basis in our cases for There is appellate an court comparative proportionality review every penalty in which the death is required case Indeed, requests it. to so hold imposed and the defendant substantially effectively overrule Jurek and would would We are not depart Gregg the sense of from Proffitt. Eighth requires us to take persuaded that the Amendment that course.
Nevertheless, Legislature repealed that the Nebraska has not portion requires of its statutes which this court to conduct a review, therefore, and, proportionality this court must abide requirements the statute declare it unconstitutional. majority ground. suggested It has chosen a middle has *54 language by Legislature, we the it written the that if follow as is unconstitutional; therefore, the act will be rendered we shall interpret by changing language it in order to declare the act constitutional. commendable, by majority
While the is I do not effort activism, regardless judicially proper. believe it Judicial result, judicial by be undertaken is still activism and should not and, interpret It is our function to the law if a court. function, however,
ambiguous, give meaning. it It is not our unambiguous. we observed redraft an act which is clear and As 119, 124, Roth, 222 Neb. 382 N.W.2d “ legislation (1986): particular ‘Whether a court considers as judicial construing unwise is irrelevant to the task of wise or ” Carlson, applying a statute.’ And in State v. anything (1986), N.W.2d 669 we said: “In the absence of contrary, statutory language given be
indicating the should its ordinary meaning. plain of a statute are plain and Where words necessary unambiguous, interpretation no is to ascertain meaning language in (Syllabus court.) a statute.” and, unambiguous language 29-2521.03 is clear and The of § thus, interpretation by meaning To read requires no this court. by limiting the review to be conducted this
into the statute penalty court to those cases in which the death has been imposed only to rewrite the is statute. One need read the legislative statement of intent set out in 29-2519 § findings recognize set out in 29-2521.01 to that this court is to § compare only appeal case on not with those in which the but, penalty imposed importantly, death has been more also penalty with those in which the death imposed. has not been legislative findings clearly require providing part: compensate uniformity In order to for the lack of charges which are filed as a result of similar circumstances necessary Supreme it is for the Court to review and analyze all criminal homicides committed under the existing law in order to insure that each produces case result similar to that arrived at in other cases with the same or similar circumstances.
(Emphasis supplied.) 29-2521.01(5). §
Moreover, an examination of 29-2521.02 further § makes it clear what it requires is we are to do. That Supreme section Court, time, within a reasonable analyze to review and all cases involving criminal homicide. It would not have been difficult to language limit the 29-2521.02 if the review § was to be limited to those few cases in which penalty the death had been imposed. There would be little analyze, reason to review and as required by 29-2521.02, “(1) including th& mitigating § facts aggravating circumstances, (2) filed, charges (3) the convicted, crime for which defendant was and (4) the sentence imposed” (emphasis supplied), or require that “all” Supreme Court, homicide cases be forwarded to the or to require Supreme Court to review all homicide cases if the ultimate review is limited to those few cases where the death penalty imposed. language simply not, of the act will distortion, painful absent permit finding that the review is to *55 only be limited to in penalty cases which the death had been imposed. 1977, Simants,
In in the case of State 549, 563-64, v. 197Neb. 881, 250 N.W.2d (1977), Legislature: we told the Supreme Court opinions has indicated in its that meaningful appellate may required review be to insure that the penalty death applied arbitrary is not in an or Georgia capricious manner. . .. While we do not have review, every provision proportional capital case slightest question where be will be considered there can words, comparison capital in with other cases. In other we compare capital will under each case review with those previous penalty cases in which the death has has not By imposed been under the new statute. this means review by guarantees present this court that the in one reasons will case reach a similar result to that reached under similar circumstances in another case.
(Emphasis supplied.)
While adoption Simants was decided even before the of L.B. 711, shown, legislative history of L.B. as will be codify adopted part indicates that it was what this court already doing. it had said was Williams,
Wethen decided State v. 205 Neb. 287 N.W.2d that, (1979), majority wherein the now claims we said conducting proportionality required review 29-2521.02, only penalty we would examine cases in which the § However, imposed. of death has been we attached to our opinion indicating in Williams an addendum the cases that had analyzed been and reviewed as of November 1979. There penalty only imposed were 32 cases. The death had been in six cases, receiving such the balance life sentences. To therefore suggest proposition for the Williams stands that we were limiting penalty our review to cases in which the death had been imposed simply supported not the record. Moore,
We
with
followed Williams
210 Neb.
Reeves,
(1982),
In Moore this court held that the constitutional, be be must limited to cases which the *56 degree
defendant had been convicted of first murder. court any review violate the reasoned that additional would judicial separation powers between the and executive of would, necessity, require because such a review of the branches gather prosecutorial court to evidence and examine decisions in filing charges. agree I with if we
While do not the conclusion that were to statutes, by Legislature, follow the as directed the act would unconstitutional, if, fact, view, accepts be in we one have no choice but to declare the act unconstitutional and cannot remedy alleged by redrafting unconstitutional defects deleting Metropolitan statutes and words. As we said Utilities Omaha, 93, 101, City District v. 112Neb. 198N.W. of legislative (1924), clearly specific “when a act violates a recourse, constitutional declaration the court has no but to declare the act invalid.” anomaly us, hand,
It seems somewhat of an on the one to say Legislature do, that if we do what the has directed us to it will separation constitute a violation of the doctrine of and, hand, powers, on the remedy other to seek to what we constitutionally by declare to be a defective invading statute province Legislature redrafting the act will not following constitute such a violation. How the act violates the regarding doctrine separation powers, redrafting but act, clearly function, not, legislative escapes does me. If the unconstitutional, say act is let us so and declare it to be invalid. not, however, I do believe that such declaration is either necessary Rather, proper. or I believe that the act is constitutionally may drafted. It constitutionally not be but, required, having adopted by Legislature, been it should by my not now be rewritten In position us. view the set out in the Moore, majority opinion supra, flawed. I now examine the underlying given by decision, by reasons the Moore one one. cannot, Legislature
I. The subsequent legislation, divest rights which vested judgment. virtue L.B. as adopted by Legislature, any rights does not divest which permitted change have been vested. We are not judgment any comparing. authority case we are solely Our is limited appeal. the case on retroactively legislation Legislature
II. The cannot enact by the adopted L.B. as open judgment. vacate a retroactively judgment. open or vacate a Legislature, does not binding and cannot compare which we are final and The cases appeal. We do not by anything we do in the case on be affected only compare present change anything in cases. We those we in those other cases. The function case with the final results *57 we in which the death perform is no different whether use cases whether we cases in which the penalty imposed has been use penalty imposed. not been death has jurisdiction upon the III. The limits the conferred of the Constitution may
Supreme by Court not be increased or 711, by by legislative adopted enactment. L.B. as the extended Legislature, jurisdiction. or extend our Our does not increase jurisdiction appeal. compare to examine the case on What we by If prescribed that case with is not constitution. we can penalty in the death compare it to cases which has been constitutionally imposed, compare we it to cases in which can penalty imposed. the death has not been change by Legislature procedures
IV. The cannot established 711, adopted by Legislature, the L.B. the Constitution. as does change by procedures not established the Constitution. There is procedure reviewing no constitutional for case which the penalty imposed. death has been Legislature judicial V. The cannot with the interfere function 711, adjudicating acquittal. adopted the an L.B. as facts of
by Legislature, judicial the does not interfere with the function adjudicating acquittal. the acquittal facts of an is not adjudication, only comparison before us for with the case Nothing by we are review. to done virtue of L.B. 711 can affect acquittal comparison an once rendered. It is not the cases we upon, only being rule but appeal. case examined on may 711, Legislature judgment. VI. The not reverse a L.B. as by Legislature, adopted permit not does court to reverse any except appeal. Obviously, other decision the case on we authority appeal. have to reverse a case on Legislature may VII. The the disposition not direct a case jurisdiction adopted
in which by has attached. L.B. as Legislature, disposition. merely prescribes does not direct a It exercising judgment.
the standards we are to use in our Notwithstanding anything may contained in L.B. we still uphold imposition penalty proper of the death in a case. enacted, Nothing currently requires about L.B. as any specific requires court reach All it to directed decision. of us imposing penalty. my is to use all the death In homicides before Legislature authority view the clear to do that. has Courts do authority impose penalty. not have inherent the death Absent Legislature, a statute enacted neither a crime nor a See, punishment may Douglas, exist. 222 Neb. State, 234, 125 (1986);
N.W.2d 801 v. Kinnan N.W. 594 then, can, Legislature, If the power, prescribe within its penalty may imposed whether the death place, be the first it prescribe may seems to me it can the conditions under which it be imposed. merely Our function is to examine the evidence to prerequisites Legislature determine that the established have been met.
Contrary
position
by majority,
to the
taken
either in State
Moore,
case,
Neb.
An legislative history examination of the underlying the adoption of both L.B. 268 in L.B. 711 in 1978 unequivocally Legislature establishes the fact that the did not intend to limit the examination to those cases in which the death penalty had in imposed. introducing fact been In L.B. 711 the Chambers, sponsor, Senator Ernie filed a statement which began following as follows: “The my constitute reasons for this purposes sought bill and the accomplished thereby:” to be Purpose, Judiciary Committee, Statement of L.B. 85th Leg., 2d (Jan. 1978). Sess. Senator Chambers then proceeded explain the various reasons for his bill. He by saying: “Now, clarity, concluded for convenience and I shall propositions set out crucial in the form of numbered items.” Thereafter followed 12 numbered items. Number 10 reads as comparison follows: “If review and are limited to where cases actually death imposed, is the base is too narrow and fails to any cognizance take of the (like multitude of similar cases those mentioned above) perpetrator where the of the homicide never faces the risk of death of the prosecutor because action charging degree.” not 1st Number 11 reads as follows: “If review of all (regardless charge criminal homicides filed punishment or the imposed) reveals that the death case before the Court carries a sentence which is different from that cases, similar homicide penalty will not stand.” Id.
In a statement public hearing at the Judiciary before the Committee, Senator part: Chambers said in Supreme already Nebraska Court recognizes a limited
version of proposal this and mentioned it in the Simants decision which it February handed down 1977. “While we do not have Georgia provision proportional for review, we will compare each capital or death case under review previous with those cases in which the death penalty has or has not imposed been under the new statute.” You’ll see provision from this only that the cases Supreme that the State review, Court in Nebraska will are those actually where death pronounced. has been In this situation, that Holtan, means five cases: [sic], Ruse Stewart, Simants, Peery. only Those are the cases. It’s very small circle provide and it does not the basis for the type of review the court itself indicates it’s interested in. go
Now I’ll back to the statement. Supreme Court limits capital its review to cases but completely ignores homicides where the facts and may circumstances have justified filing of a capital penalty or death charge, but for reason, some none was filed. This means that Supreme Court’s purpose reviewing stated comparing cases effectively majority defeated in the vast of instances.... cases, past If in prosecutors have charge they shown they filed rejected penalty the death judges who pleas received guilt degree to first murder or *59 convictions of degree first murder they rejected penalty by it, death imposing not those cases nevertheless whether reviewed to determine be should if penalty, the death have warranted would circumstances now, were the circumstances the court in the before case a sentence. pronounced was as and death similar Leg., 2d 85th Sess. Judiciary Hearing, L.B. Committee makes it clear that 33-34, 1978). The statement (Jan. be included in the expand the cases to
intent of the act was to review.
Furthermore, debate discloses an examination of floor favor of Legislature, least those who voted in what the or at Senator Chambers: had in mind. Senator Clark asked L.B. Court, Supreme at not the CLARK: Does
SENATOR time, penalty after the death present review the case imposed the district court? has been They the individual CHAMBERS: review SENATOR they compare them with the cases where the case but don’t They imposed. do not make a penalty death not They review the comparison against of case case. case itself. Debate, 711, Judiciary supplied.) Floor L.B.
(Emphasis Committee, Leg., (Mar. 1978). 2d 85th Sess. part:
Senator Chambers then further said merely Supreme under this bill will not The State Court whether were review an individual case to see errors compare in that case but it will the cases of committed just throughout the state to see what criminal homicide ought carry penalty kind of cases the death and which ought person kind not. And if a who commits crime in County escape penalty will the death Scottsbluff [sic] county, in that while because he or she lives same Douglas County, thing being sentenced to death in then penalty penalty law. The death the death is not a state solely up interpreted into different laws broken only prosecutor. in the discretion of the individual I am saying Supreme that the Court should be authorized to compare all these where criminal homicide cases has rectify disparities, some of the some of the occurred differences, differences, radical which have occurred as a among prosecutors. the difference in attitude result of
[357] remember, bill, among comparison This causes a cases.
Currently merely individual So appeal an reviews an case. might you people in this room. it be like have a hundred give whether he or she is physical You each one a to see healthy. you compare them with each other to Then all of see which is the healthiest. One is an individual review. comparison. concept The other is a 711 adds the of the comparison only through procedure and I think such as away, can the be this arbitrariness taken Senator Clark, arbitrariness, say saying when I I am that similar state, in circumstances do not result in a similar result this row, you people and if review the cases of on death there penitentiary are others in the who to have confessed crimes far more atrocious than those committed currently awaiting ones who are and those are death who naturally not on death will and I think that row not die proper bring purpose not and the of this law is to about uniformity.
Id. at 7378. light
Reading meaning the clear in of the statutes comparison debate leads one review to conclusion that homicide, involving whether the encompass must all cases penalty imposed death or not. view,
Finally, my in that no other common sense dictates of L.B. 711 purpose rational conclusion can be reached. The being arbitrarily sentenced persons was to ensure that were not suggest only at those to death. To therefore that we look against may individuals who have been discriminated against they have determine whether or not been discriminated futility. determine whether is an exercise in If one wants to public in being against individuals are discriminated merely those who are transportation, one does not look at conclude that since required to sit in the back of the bus and alike, no everyone the bus there is the back of looks One, riding in necessity, at who is discrimination. of must look whether the in order to determine the front of the bus as well So, too, against. persons being in the are discriminated back who are way whether those there is no that we can determine against if we do not being to death sentenced are discriminated having examine those cases the same or similar circumstances which, reason, imposition for whatever did not of a result death sentence.
I have attached to this concurrence and dissent a list of 185 killing cases in which individuals have been involved pleaded guilty another and have been convicted have or murder, degree degree murder, either first second manslaughter only Of that or less. number resulted in imposition penalty. percentage the death times penalty imposed death been has in Nebraska since as compared percent. to the of such total murders is While that may justified, be comparison to limit the we pursuant make percent totally ignore L.B. 711 to 7 of the cases is to the obvious *61 purpose intent and the act. I of believe we have no other choice having but to review all homicide cases the same or similar may argue may circumstances. One that there be other cases wherein charges homicides were committed but less than first degree murder, degree murder, second manslaughter or were true, may That currently filed. be but under the record before us, and in view few of the cases in the penalty which death has imposed compared been as to the total number of known having homicide cases circumstances, the same or similar the cases, absence of they be, those additional may whatever can only further exacerbate the result of the review in this case. nothing There is about those cases which will be in helpful determining whether there is in discrimination this case.
I would interpret require L.B. 711 to Supreme that the Court must review all having homicide cases same or similar circumstances, the records of which are filed with the court pursuant 29-2521.04, 29-2521.02 and regardless §§ penalty imposed, would not limit review to those cases which the penalty in death imposed, was as has been done majority. Using review, this broader of standard I a believe cases, review of all light of in those imposed mandates upon the Court, states Supreme U.S. leads imposition conclusion that the penalty the death in this case arbitrary and discriminatory and cannot stand. The decision nothing has to do with morally appropriate; what is only with legally what is permitted. A authority state’s to execute be must the sentence fully with before complied strictly interpreted and may be carried out. list, appear it would in the attached set out
Of the 185 cases Those cases murders. robberies and them involved that 57 of in front of by placing an asterisk in the list are identified only six of the number Of that total name of the case. of the death imposition
robbery/murders resulted less imprisonment life a sentence of In 51 of the cases penalty. imposed in penalty death was means that the imposed. This
was involving the same or similar only percent of the cases 10.5 death circumstances, the cases the percent while 89.5 already recognized, it is we have imposed. was not As penalty is the same as or whether one murder easy to determine not minimum, a the cases involved all of to another. At a similar rob attempted to or did fact situation in which the the victim. the victim as well as kill cases reveals that of some of these
A closer look at the facts robbery where involving and a murder many cases of these 51 imposed have not imprisonment or less a sentence of life to the instant case. only nearly patterns identical fact similar but Prim, N.W.2d 193 in State example, For He ordered the gas station. (1978), the defendant robbed suspected that the down. When the defendant attendant to lie something, get moving the counter to victim was behind off, gun went and the gun. him with his defendant hit gunshot wound to the heart. eventually victim died from a degree prison life in for first Defendant was sentenced to murder. *62 Court, County Domingus,
In State Lincoln District first 31, pleaded no contest to Page the defendant Docket the victim was that degree murder. The record discloses defendant, sustaining a considerable viciously by the beaten eyes nose. In the bruising of the and amount of in the area when she the victim was alive opinion pathologist, of the ultimately died of massive injuries. sustained the facial She a wooden board. injuries head was beaten with after she was degree murder and first defendant was convicted of years 20 additional plus up to imprisonment, sentenced to life beating for the death of the woman.
And
Suffredini,
p.
ante
In State v. Lancaster District Page Docket the defendant the owner a robbed of shop. robbery, Lincoln flower In the course defendant struck and killed the owner with a metal bar. The degree defendant of was convicted first murder and sentenced imprisonment. to life Ware,
In State v.
Neb.
These not an inclusive list all Nebraska cases case, with the same or similar circumstances as instant clearly did, exemplify that morally what Palmer while repugnant deserving punishment of the maximum permitted by law, really many no different from what others have they done and for which a received life sentence. In significant Palmer’s case are there no factors different from listed, and, therefore, those in the 56 other cases comparison with the 56 appropriate. cases seems
Even if we exclude from this number those cases in which the years defendant age was less than 18 at the time the robbery/murder was committed (identified placing the letter following m on list), asterisk the attached we still find there are a involving robbery total of cases and a murder. Of that only number six resulted in imposition of the death penalty. that, That disregarding means those cases which the years age, was less than 18 penalty the death murdering an attempting robbing individual while to or in fact *63 cases, only percent 12.8 imposed the individual imposed percent in 87.2 imprisonment life or less was while Therefore, that, appears me absent additional it cases. factors, of death in this case is aggravating a sentence executed, including of six to be disproportionate. The selection and, therefore, Palmer, in violation arbitrary capricious is As the U.S. eighth amendment to the U.S. Constitution. 420, 428, Georgia, 446 U.S. Supreme Godfrey Court said in (1980): L. Ed. 2d a State wishes to 100 S. Ct. “[I]f capital punishment it has a constitutional authorize apply law in a manner that avoids responsibility to tailor its arbitrary capricious penalty.” the death infliction of suggested why One of the factors as to this case falls into category example limited is that this is an of a case in which the being victim was bound before murdered. There is some brief testimony testimony solely to that effect. The from the comes wife, Palmer, testified, response defendant’s Cherie who to a single question, as follows: you What did observe?
Q. lying A. Mr. Zimmerman was on his back on one of the beds .... His hands and his feet were tied. is, however,
There much evidence to contradict police statement. One of the officers who was called to the scene testified as follows: legs . . . Was Mr. Zimmerman’s hands or bound
Q. you
when observed him?
A. No. him, Q. up . . . You weren’t the first one there to see — right? You weren’t person isn’t that the first No, A. I was not. you But have determined that he was not bound at Q. — found, he
the time was is that definitely
A. That’s correct. who, testimony supported by pathologist, This likewise, testified as follows: you any Did observe abrasions or bruises around the
Q.
hands or the wrists of the decedent? No,
A. sir. you Did examine them for those?
Q. Yes,
A. sir. not as to whether or you make an examination Did Q. hands area then? up had been tied in the the decedent *64 suggest me that findings that would to A. There were no place, had taken sir. that minimize the horror testimony is not intended to
While that
for, indeed,
not,
point
to
out
murder,
it is intended
it does
of
significantly different from
murder in this case was not
that the
having
circumstances in
the same or similar
most other cases
imposed.
penalty
death
has not been
which the
238, 309,
Georgia,
v.
408 U.S.
original
In the
case of Furman
Justice Stewart said:
(1972),
It this fact that penalty the death in the Furman United States to declare Constitution, be in violation of the federal and that decision to Legislature prompted adopt the Nebraska to L.B. apparently passing upon 711. This is not a case which the court is but, rather, wherein, morality penalty of the death case as by statute, required proportionately we are to review the penalty compared imposition of the death this case as having homicide cases the same or similar those criminal me, therefore, It that we have no circumstances. occurs alternative, long required so as we are to make a review, imposition that the proportionality but to conclude penalty murdering for the of an individual in the the death case, robbery, of a under the facts of this commission arbitrary capricious and cannot This is not a stand. Nevertheless, doing pleasant choice to to make. have what always requires pleasant, law of a court is not but sometimes indeed, required. Legislature, If the us not to follow the wishes us, adopted repeal rule it has for all it need do is L.B. 711 which requires engage proportionality this court to in a review.
For these reasons I believe that the sentence of death in this Palmer, having case cannot stand and that been convicted of the murder, imprisonment should be resentenced to a term of life, the balance of his natural never to be prison released from permitted again. be free ANALYSIS OF CRIMINAL HOMICIDE CASES FOR USE
IN COMPARING DEATH PENALTY CASES UNDER
L.B. 711 I. FIRST DEGREE MURDER CONVICTIONS —DEATH PENALTY IMPOSED. Rust,
*State N.W.2d 867 *65 30,1975. of Date Sentence: October 1975, February 21,
On defendant and Ronald Ell a robbed Omaha, Hinky Dinky manager Store in Nebraska. store employees pursued and several the getaway robbers. The car by intercepted policeman cruiser, was a in a who also chased the exchanged, robbers. Shots were and the robbers fled the getaway They car. pursued by were several officers and a civilian, Kellogg, Michael who had armed himself and was attempting capture Kellogg Rust and Ell. was shot four times and killed Rust. apprehended. Rust was later Holtan, 544, v. *State 197 Neb. (1977). N.W.2d 876 9,1976. of Date February Sentence: Omaha, Nebraska,
Defendant robbed bar in tying a up after bar, persons certain then including in the some customers. gun put
Holtan then
a
head
to the
of one of the individuals. The
yelled,
God,
boyfriend
“Oh, my
no,”
individual’s
at which
point
boyfriend
girlfriend.
Holtan shot the
and the
boyfriend
gunshot
died as a result of the
wounds.
*
Peery,
199 Neb.
Date Sentence: June Lincoln, shop
Defendant robbed a coin He Nebraska. her, also bound her behind wrists tightly bound the owner’s range, once in the at close then her three times He shot ankles. through eyes, the roof and once right temple, once between the brain, mouth, directly and robbed store into the rare coins and watches. (1979). N.W.2d 36 Otey, Neb.
State 20,1978. of Sentence: June Date drinking. night a out walking after was home
Defendant
sleeping
window,
victim
on sofa on
Through a
he saw the
door,
through the back
took
her
He entered
first floor of
house.
reentered,
He
victim
stereo, and
it outside.
her
carried
going
rape
rob and
he was
He told
victim
was awakened.
the forehead
fought back,
cut her across
and defendant
her. She
inquired
victim
if
had
raped the
she
with his knife. He then
money,
get
leaving a
any money.
upstairs
He
her
forced
stated that while
droplets
blood
behind her. Defendant
trail of
her,
kill
He
starting
pleaded for him to
her.
he
to stab
she
times
the head with a hammer and
then hit her four or five
over
strangled her with a belt.
Williams,
Date of Sentence: came to home of one of August On victims, McGarry, personal They a close friend. Patricia presumably argued gun purchased, had over a which Williams Brooks, McGarry’s, A friend of Catherine to commit suicide. time, During involved the incident. this and became arrived McGarry and Brooks times each in three shot Williams body autopsy Brooks’ also evidenced head. The about contact, although After Williams denies this. these sexual acquaintance apartment went to the of an murders defendant him, and telephone. to use the She admitted he then and asked stay stay suggested for while. She that he told her he needed to complex, whereupon storage apartment area of the room *66 many and her as as six He raped drew a revolver times. Williams Iowa, sexually through where he then left and traveled woman, way killed and then made his and shot and a assaulted Minnesota, raped he shot where and another woman. and Hochstein, 207 Neb. 296 N.W.2d State v. Anderson 440 (1980). 24,1978. August
Date of Sentence: of employee Anderson was an Commercial The defendant defendant, other Realty, Abboud. The owned one Hochstein, upset of Anderson was close friend Anderson. was a apparently felt and practices with business some Abboud’s he checks that getting he was the correct commission not several discussed with Hochstein was owed. Anderson Abboud, hiring including rid ways getting alternative Abboud, using explosives. About a a knife and someone kill Hochstein, murder, along with and week before the Anderson Reams, seriously discussing the murder of Abboud. began Lon $1,500. Anderson Hochstein offered to execute Abboud then the actual murder. agreed, planned and the three him at 168th and Streets inveigled Q Hochstein Abboud meet it property was because was in Omaha. This location chosen company because it was out of listed with Abboud’s however, Abboud way. postponed, The was because murder during meeting. this The people in the car had several other day, arranged whereupon next meeting was for the second times, head, in the once in Hochstein Abboud three once shot neck, and Hochstein in the back. Both Anderson once were sentenced to death. N.W.2d 663 Harper,
Date of November Sentence: 1979. Harper relationship in an with was involved emotional relationship Sandra in 1973 and 1974. Johnson deteriorated, told that she intended to Harper and Sandra marry marriage place, did in fact take Duane Johnson. Harper kill when Sandra refused threatened to them both shotgun marriage. Harper In fired a at
to annul was home and group gathering outside Sandra’s mother’s penal complex for to serve in the arrested and sentenced time release, kill, wound, he shooting Upon with intent to or maim. Omaha, Institute in from employed by Eppley Research drugs and them in carcinogenic put he
which took some lethal Johnson’s refrigerator milk and in the at Sandra lemonade the milk and lemonade. family home. members drank Various and her (Sandra’s husband Five became ill and two five nephew) 11-month-old died.
366 Moore, v. (1982).
*State
210 Neb.
On Moore robbed and killed an robbery, simply cabdriver. His motive was and he made several calls for cabs and waited until an older cabdriver arrived. Four days scheme, repeated killing robbing later he this and another cabdriver. Reeves,
State
Date of Sentence: 1981. by way Defendant entered victim’s house of a back window proceeded and to the second ripped floor bedroom. He telephone cord out an effort to isolate the victim from the outside world. He stabbed her seven times the chest in perpetration of or attempt perpetrate a sexual assault. A victim, girlfriend guest second staying overnight and with the victim, first doorway was also found stabbed inside the to the victim’s bedroom. Both women stabbing. were killed * Palmer, Neb. 399 N.W.2d (1986).
Date of 6,1984. Sentence: September
Defendant and his wife robbed shop Island, a coin in Grand Nebraska. The victim was struck on the head and tied up. He was then upstairs bedroom, taken to a where he was watched defendant’s wife while shop. defendant robbed the Defendant then upstairs came and sent his wife downstairs. While downstairs, she heard thumping low, throaty, noises and a chant-like sound. The victim was found upstairs, having dead strangled been with an electrical cord. Joubert, Neb. 411, 399 N.W.2d 237
Dateof 9,1984. Sentence: October Defendant kidnaped young paperboy September 18, on 1983. He bound feet, his hands and taped mouth, his put and him in the trunk of defendant’s car. He later removed all of his except clothes undershorts, for his though he did sexually not molest the child. The child was stabbed 11times. On December 2, 1983, the kidnaped another young boy, whom he forced to he down in the front of the automobile. When the body found, it only too was clad undershorts, though the victim had sexually not been molested. He had been stabbed Joubert grabbed the neck. roughly around seven times killings pleaded guilty. He admitted confessed to places, young boys, he drove to secluded despite pleas car, coolly of them stabbed both get out of the told them people died. about how death because he was curious * Head, appeal pending. State v. Bird Court, C1802. County No. Sheridan District 18,1986. March Date Sentence: *68 assaulted, bound, beat, murdered sexually and
Defendant apprehended, he was intoxicated the victim in her home. When driving the victim’s automobile. and was MURDER CONVICTIONS —SENTENCED
II. FIRST DEGREE TO LIFE IMPRISONMENT. Andersen, opinion. no written Court, County
Dawson District No. 14391. July 26,1973.
Date of Sentence: patrolman, Defendant and his wife resisted arrest a and struggle police patrolman was shot and killed. car * Kennedy, State opinion. no written Court, Page 72. County District Docket Lancaster September Date of Sentence: 1973. money decided to rob
Defendant was in need of but, attempted He because of a someone. first to rob a home barking dog with dog, was unable to do so. He shot the a Lake, 12-gauge shotgun and left. He then returned to Kramer victim, fishing, where approached he had been earlier in the fishing. who was also The defendant shot the fisherman alive, proceeded back and him. The victim was still so the to rob defendant shot him three more times.
*State v. Casper, (1974). N.W.2d 226 13,1973. Date of Sentence: December evening at several spent
Defendant and several friends
victim, who
They
joined by Omaha bars.
were later
that
night
was aware
promised them a
on the town. Defendant
person.
$100
Defendant
the victim had
bills on his
two
others, fearing
pulled a knife on the
maintained that the victim
he,
victim,
struggle
A
ensued
going
be robbed.
got
party
The other
parties
and the victim.
between one of
the victim to
away
the victim. He then ordered
the knife
from
money.
joined
that he
in the
over the
Defendant admitted
hand
up in the river.
robbery attempt.
point
At
the victim ended
some
testimony
he fell down the
It
clear from the
whether
was not
party
and the other
pushed.
riverbank or was
Both defendant
standing in
that the victim was unharmed and
shallow
maintain
later,
body
days
they
when
left him.
was found several
water
His
floating in the Missouri River.
Wilson,
(1974).
Neb.
*State v. January 4,1974.
Date Sentence: Casper,
Same facts as in State v.
above.
Nokes,
192Neb.
Date of Sentence: March wife had into an Defendant his entered adulterous daughter relationship relationship with the of the victims. estranged, difficulty and the physical became led to verbal and daughter. altercations between the defendant and the victims’ thought The victims became aware of the situation and blackmailing daughter. their Defendant defendant was and his wife went to the victims’ residence to settle Later, misunderstanding. gun Defendant took with him.
four went to defendant’s home and down to the basement. *69 basement, While in the killed defendant shot and the father of daughter the involved in the relationship. When the mother stairs, up screamed and tried to run the defendant shot her in bodies, the back. Defendant and his wife then dismembered the wrapped pieces in paper, disposed butcher and later nearby in a lake. bodies Brown,
*State v. opinion. no written Court, 88,
Douglas County Page District Docket 625. 25,
Date of Sentence: March
1974.
gave
victim,
acquaintance,
They
Defendant
an
a ride.
stopped near the
got
Carter Lake area and
out of the car. After
telling
get
the victim that
job
defendant did not
he had
hoped
get,
he
$82.
struck the victim and robbed her of
She
beating,
died
neck,
from
with massive contusions to the
and
five cracked ribs.
Russell,
64,
194Neb.
[369] 31, May Date of Sentence: 1974. victim, boy, younger young was a friend of defendant’s Defendant, teenager, shopping
brother. and victim went together. They apartment. then entered an abandoned Once inside, talked, coffee, they doughnuts, engaged and ate drank minutes, activity period homosexual for a brief of about apparently request. at victim’s Defendant claimed that derogatory calling victim started him names and also made got grandmother. statements about defendant’s Defendant mad, telephone, strangled cut the cord off the and the victim. eyes bulged.
The victim’s face turned red and
Defendant left
his
there,
years
age,
gasping
victim
for air. The victim was 8
of
years
age.
defendant was
of
Harris,
74,
(1975).
*mStatev.
Neb.
defendant and a
who
to snatch her
purse.
ensued,
struggle
A
and the woman
knocked
was
down
and kicked
Douglas County
several times. She was taken to the
Hospital
squad.
a rescue
She sustained a number of serious
injuries, including
hip.
a broken
She died 2
later
months
as a
complications secondary
injury.
result of
to the
Lytle,
*mState
194Neb.
Same
as facts
above. At the time
of
years
age
Lytle
years
age.
assault Harris was 16
was 17
McDonald,
*mStatev.
195Neb.
Date of Sentence: June evening July On the the defendant two other youths youths were liquor driven a mother of one of the to a they buy was, time, store so that could beer. Defendant at that years evening, old. Later that informed that a belonging car to defendant’s older brother had been hit.
Defendant and his friend went outside and viewed the car. The standing nearby, victim was and there was a discussion between defendant and the victim as to whether the victim had hit the car. Defendant and his friend then went to the friend’s trailer *70 got gun conflicting a and disassembled it. There was hit the victim
testimony,
or his friend
but either the defendant
the victim into the trunk of
head. The two then stuffed
over the
wallet,
car,
The car was later set on
and shut the lid.
his
stole his
went
testified that defendant
back
fire. The defendant’s friend
and, later, returned,
car on
stating that he had set the
to the car
by firefighters,
victim was found dead
the trunk
fire. The
policeman
a
who saw the
were called to the scene
who
burning car.
Stewart,
(1977).
197Neb.
State Initially sentenced to August of Sentence: 1975. Date death, by Supreme Court. but sentence reduced years
The defendant was 16
old at the time of the commission
drug
developed relationship
with two
of the murder. He had
dealers,
marijuana.
him with
He fell
supplying
who were
if he
payments
behind in his
and was threatened
the dealers
pay.
did
the dealers that he needed 2
not
Defendant advised
pounds
marijuana
that he could sell it and make a
so
drug
during
profit
pay
sufficient
dealers. It was
this
attempted
the murder
The dealers
transaction that
occurred.
picked up
plan
in a van. The
to take Stewart to the
Stewart
buyer
place.
house of the
so that the transaction could take
buyer,
actually
planned
Stewart
had no
to steal the
marijuana
person
from the
He had on his
his father’s
dealers.
pistol
gasoline.
gas
and a
He told the dealers the was for a
can of
van,
friend. While in
both
in the
defendant shot
dealers
immediately,
back of the
but
head. One died
the other survived
pour gas
and witnessed the defendant
all over the inside of the
left,
ignite
injured
van and
it. After the
dealer
van,
escaped
burning
from the
and later testified.
Sims,
Neb.
Date of Sentence: 1975. accident, Defendant and the victim were involved a near having which resulted in defendant’s words with the victim. After a brief conversation the defendant returned to his later, automobile. A short time the defendant returned to the passenger area where the parked. victim’s car was in the defendant’s automobile car and stepped pistol out of the fired a shotgun in the air. The defendant from the car and removed deceased, rapidly walked in the who was direction of
[371] standing against stopped his car. The defendant when he was away shell, about 10feet from the deceased and fired one which abdomen, struck the deceased in the causing his death. Ell, 800,
*State v.
196Neb.
(1976).
This is a case to State v. 197Neb. 250 (1977). N.W.2d 867 Because the evidence indicated that Rust shooting, did the actual Ell was sentenced imprisonment, to life being felony convicted of murder. Record, 530,
*State v.
198Neb.
Date July of Sentence: 1976. Defendant, years age, 18 driving and another were in an they automobile when anyone decided to rob who next came along. They drove approximately Dodge to 180th and Streets parked road, Omaha and waiting on a side for someone to drive by so that the defendant could shoot and rob someone. At approximately 3 a.m. a passed car driven the victim their car, parked proceeding Dodge east on Street. With the other party driving, pursued. the victim’s car was As car drove their alongside shot, the victim’s if pass, as the defendant fired a breaking glass killing the driver. Beans, 807, 199 Neb. 261 N.W.2d (1978). 749
Date of January Sentence: 1977. (the Defendant and his wife victim) had concluded a bitter custody divorce and child proceedings. Defendant went to the her, taking victim’s home to talk with gun along his with him.
The victim
gun
purse. They
had a
in her
argued, and defendant
fired a shot into
pulled
the wall. After the victim
gun
from
purse,
her
attempted
the defendant
hand;
to knock it out of her
process
gun
the defendant’s
went off and the victim was
killed with one shot to the abdomen.
*
Scott,
200 Neb.
(1978).
Date of Sentence: 1977. The defendant entered the home of William and Bertha Omaha, Nebraska, McCormic in money demanded at gunpoint. ensued, McCormic, A scuffle and Mr. who was 92 years age, McCormic, was shot twice and died. Mrs. who old, years was 83 was shot twice and wounded. The defendant years age. was 18 (1978). Prim, N.W.2d 193 Neb.
*State v. 8,1977. July of Sentence:
Date the attendant gas He ordered robbed a station. Defendant going behind thought the victim lie down. When gun, with his hit him something, defendant get the counter to The victim money and fled. Defendant took and it went off. was 24 The defendant the heart. gunshot wound to died from a age. years of * N.W.2d 681 Simpson, State September 1977. of Sentence: Date were defendant, sister, sister’s child and his his They had formed up by the victim.
hitchhiking picked and were stop the car whereby they get the driver would plan *72 They stopped him. pull gun a and rob defendant’s sister would road, they got on the car, nothing As back happened. but keep his the driver to pulled gun and told defendant’s sister turned to stop the car. The driver the wheel and hands on her, The victim was him in the back. and she shot disarm pit the car into a borrow they dragged him from paralyzed, so fired two billfold. The defendant Interstate and took his off the was 20 the victim. The defendant to the head of more shots years age. opinion. Schaeffer, no written
*mStatev. Court, Page County Docket 279. Hall District September 1977. of Sentence: Date friend, forced defendant, 16-year-old, together with a a
The in Grand Island into manager of the Ace Hardware Store him, they where, robbing shot him gunpoint, after their car at 17times. * Roewert, opinion. v. no written State Court, 2805. County
Platte District No.
Date of Sentence: December 1977. drinking at a bar in defendant and some friends were The Norfolk, Nebraska, and kill the victim. planned to rob to be They they the victim so as not determined would kill and lured got some knives identified. The defendant went and party. They drove by inviting him to a the victim out of the bar road, they While country took his billfold. him out to a where intoxicated, being the defendant passed the victim was out from then The defendant him. decapitated then throat and cut his over, victim, body and cut it about rolled disemboweled age. years of was 23 back. The defendant 714, 271 N.W.2d 842 Beers, Neb. State 16, 1977. December Date of Sentence: drinking he After separated. his wife were
Defendant and shotgun his car. He double-barreled put went home and to kill her. threatened with another man and then found his wife defendant Gruber. The of one Steve fled to the home She looking his wife. City drive about Nebraska continued to Meanwhile, police that the reported to the Gruber look for the proceeded to threats. Two officers had made did the defendant spotting one of the officers Upon defendant. the rear of and came back to alley in the where he was
a U-turn pickup stepped out of his police station. The defendant put the shotgun When he was ordered to with his in hand. truck down, firing, gun battle ensued. began he and a gun officers, killing them. He then fled one of defendant shot both York, Nebraska. caught stop a rest near and was at * Marshall, opinion. no written Court, 48, Page 262. County District Docket Lancaster March 1978. Date of Sentence: defendant, 20-year-old, working shop in a flower Nebraska, owner,
Lincoln, and in the course of the robbed the in the several times with a metal robbery the owner head struck bar, the victim died. from which blows Hatcher, opinion. written no Court, County Page 321.
Douglas District Docket *73 14,1978. April Date of Sentence: officer, engaged defendant, being pursued police a
The officer, struggled and as the officer struggle police with the a twice, gun went off the second with the defendant the officer’s hitting in the head. time the officer * opinion. Floyd, no written State v. Court, County Page District Docket 196.
Hamilton 16,1978. May Date of Sentence: old, filling
Defendant,
years
attempted
rob a
station.
to
fu,
kung
he knew
did
the defendant that
The attendant advised
scream,
kung fu
Defendant
jumped
and
into a
stance.
kung
a
fu
shot the
times in the
attendant three
head.
Nielsen, 203 Neb.
Date of Sentence: 1978. trip, during hunting Defendant returned from a which time great returning he Upon consumed a deal of alcohol. home he engaged argument while, in an with his wife. He left for a and returned, gone. when he found that his wife was He then went parents’ got to her argument home look for her and into an with them. The defendant called his father-in-law an obscene name and at the gun shot once wall to show them that his worked. stepped outside, Defendant his father-in-law where defendant then shot the The father-in-law. mother-in-law screamed, and also was shot when went she outside. The gunshot head, father-in-law died of a wound to the and the gunshot mother-in-law died of a wound to the neck and left upper posterior thorax. Bennett,
*State v.
204 Neb.
Date of Sentence: 1978. evidence, While dispute there appears was some in the it the defendant sought rob the victim public while on a street.
He large rock, struck the victim with a and then apparently became scared called squad. the rescue He later went to the hospital to check on victim’s status. victim died as a result of the head wounds inflicted the rock. Anderson,
*mStatev. no written opinion.
Douglas Court, County 102, Page District Docket 85. September 25,1978.
Date of Sentence: defendant, 15-year-old, together with his brother and a friend, decided rob someone. The three were in one car and followed a man stopped in another car until he at a stop sign. got
Defendant
pulled gun
out
car and
victim,
on the
telling him to move over.
car,
The friend
drove
victim’s
placed
the victim
passenger
got
seat. Defendant
into
They
the back seat.
drove around for several minutes and
parked
highway. They
off the
took the victim’s billfold at
gunpoint. When the victim
struggle,
started to
the defendant
shot him in the head.
Robbins,
Date February of Sentence: *74 The victim his wife The victim was under separated. and were impression having that his an affair with the wife was Actually, living defendant. was with the wife’s defendant 16-year-old daughter. and a friend went to the Defendant house, apparently straighten victim’s to out ensued, misunderstanding. fight A and the shot the victim six Defendant his friend later returned times. and money took from victim’s wallet. Ditter, N.W.2d
Date of Sentence: November 1979. wife, victim, separated. Defendant his were Defendant apartment, went his wife’s where he broke in. He girlfriend ordered a parties’ the victim to remove the two children, minor and then ordered his wife to disrobe. While requiring life, beg his wife to for her he fired four into shots her body. Shots were fired' at police different intervals. When the in, alive, broke the victim was still but died before rescue squad arrived. * Thornton, State opinion. v. no written County Court,
Douglas 105, Page District Docket 263. 3,1980. January
Date of Sentence: apartment through defendant entered the victim’s a boarded-up doorway in the basement. His intent was to break and enter purpose burglarizing for the the home. He took money, drugs, and a asleep radio while victim on sofa. She was awakened the noise of the defendant. She screamed, struggled. and the two strangled Defendant her with gag. Bussard,
*State opinion. no written Court, County 11,542.
Red Willow District No.
Date of February Sentence: 1980. defendant, brother, defendant’s and two friends were shooting bar, pool They a bar. at met victim at the and the go group decided for a They ride and shoot rabbits. rode in the victim’s car at stopped get first defendant’s home to gun. They then drove out of and stopped town to shoot at some lights. told going The defendant one of his friends he that was to shoot and rob the victim because the victim was an agent. drug They undercover off the turned road and decided victim in the nose. then shot the a beer can. Defendant shoot at hollered, fired several more the defendant When the victim range. They then took the victim’s head from close shots into *75 They dumped the and stole his billfold. off the victim’s clothes They returned to to town. then body a fence and returned over scene, body fire. they the and set the car on where buried the years age. was 24 The defendant McGee, opinion. v. no written
State 38, Court, Page 170. County Docket Sarpy District 14, April Date of Sentence: 1980. others, defendant, together part with several was of a
This
get
“family.”
that if he wanted to
The defendant was told
social
victim,
family
kill the
another
good
with the
he would have to
family,
he
would be killed. On the
member of the
or else
himself
night
party
the murder a
was held at the home of one of the
family
drinking
drugs. The
members. Most were
and took
Later,
drugged.
given a drink which was
while
victim was
gun,
upstairs to load a
the
defendant and two others went
down,
victim was downstairs with another.
others came
victim,
gun,
the
the
and told him to kill the
handed
defendant
did, shooting
body
which he
him 15 or 16 times. The
Iowa,
thrown in a creekbed in
where it was found a week later.
139,
Boyer,
(1982).
211
Neb.
Date of
1981.
argument
parents
evening
Defendant had an
with his
night
prior
spent
sleeping
to the murder and
in his car. A
neighbor
morning
saw him return home in the
and called
mother,
victim, work,
neighbor
defendant’s
at
as the
had
been instructed to do
the victim. The defendant was locked
gain
out of his home but broke a window to
entrance. He went
bedroom,
door,
upstairs to his
locked the
and loaded his
shotgun. The victim came home from work and demanded
opened
to
defendant
entrance
defendant’s bedroom. The
door,
quarreled.
and the two
The victim told the defendant to
pack his suitcase and leave the house. At that
time the
gun
retrieved the
under his bed and
from
shot her. He
then called 911 and told them that his mother had fallen.
Pope,
(1982).
211 Neb.
State 23,1981. Date of Sentence: June
The victim and the together defendant had been at a bar. The wife, victim wanted to hire someone to kill his so the two were discussing may A party transaction. third have been present. They stopped they they automobile were in so could relieve along country themselves road. The victim pulled large bills, aout roll of and defendant shot him in the back of the head. The money defendant then took the dragged body away days to where it was found several later. Hubbard,
*mStatev. 211 Neb. 319 N.W.2d (1982).
Date July of Sentence: 1981. defendant, years age, desired to rob someone in get money order buy marijuana. The defendant tried unsuccessfully gain entry into one house. After this failure he gun codefendant, obtained a from the Bradley, Juan and went up door, to the victim’s opened house. When the victim defendant shot the victim and fled. Bradley,
*mStatev. 317 N.W.2d July 17, Date of Sentence: 1981. companion Hubbard,
This is a
case to State v.
above. The
*76
years
defendant
17
age.
was
Scott,
625,
212 Neb.
(1982).
Date of Sentence: October 1981. The defendant and the victim had living together been for approximately years. 4 The victim had two children with previous boyfriend. and one more with a On the evening of the murder gone the defendant had out with a friend and the gone girlfriend victim had with out a left the and children with neighbor. When the victim returned at about p.m., 10:30 she found the defendant at the door of her apartment. He leaving was furious with her for the children out past p.m. 10 girlfriend The victim’s felt that it was her fault that angry he was and attempted to calm him down. After 20 minutes with him felt she that he had calmed down. At 3 a.m. morning police next received a 911 call for a rescue
squad. The call was made the defendant. When the rescue arrived, squad the defendant that it stated was his fault and that he pushed had the victim apartment down the stairs. The was in disarray. There legs was a coffee table overturned with two missing. body It was later determined that the had been beaten belt, kicked with with a leather table and leg from the
with a ctccl fDPn CnftPC (1983). Lamb, N.W.2d 213 Neb. v. State 29,1981. October Sentence:
Date of wife, was apparently who killed his The defendant shot many ailments. suffering physical from (1983). Tucker, 340 N.W.2d
*State v. July 1982.
Date of Sentence: House International entered the and his brother Defendant committing a purpose for Pancakes restaurant (victim) for the waitress/cashier robbery. The brother asked gun it pulled his and said then change for a dollar. Defendant upper in the the victim once stickup. The defendant shot awas age, the defendant years of The victim was 18 right chest. 21. Tucker, opinion. written no *mState Court, 111, Page 465. County Docket
Douglas District 28,1982. July Sentence: Date of Tucker, 215 Neb. companion case to
This is
that, here, the
only
difference
*State v. Court, 59, Page 108. County Docket Lancaster District August 1982. Date of Sentence: of the victim’s home. knocked on the door
The defendant her a elderly The defendant showed victim was an woman. When then police was a officer. she picture ID and told her he by checking in, story believable out let him he tried to make his windows, go observing up He told her to as if someone. door. He then located her in case the men broke down the room money. When upstairs. and went He asked the victim a knife none, He her twice in the stomach. said she had he stabbed she cord, cut apparently which he had strangled then her with a radio, he her which later sold drapery. from some He then stole *77 years age. $5. The defendant was 35 849, Searles, (1983). N.W.2d 571 State v. 214 Neb. 26,1982.
Date of Sentence: November of a state-licensed residential The defendant was a resident facility. percent home 90 care In this custodial foster require psychiatric residents medication for disorders. The others, defendant apartment including shared an with five victim. The argued defendant and the victim had often over the use of day killing the TV. On the the defendant was told proprietor going that he was to have to be moved. The kitchen, defendant took a knife out of the went out to the balcony was, where the victim and stabbed her several times. killing, stating, defendant admitted the “I stabbed her
good; I hope I killed her.” Lynch, 215 Neb. (1983). N.W.2d 128
Date of Sentence: December 1982. victim, man, 57-year-old driving “looking was out for some picked up defendant, action.” He age who was a hitchhiker. The defendant explained that he was down on his luck and money. needed some responded The victim to this saying, get you “I money you could some my if will be friend for a while.” agreed, The defendant proceeded and the two back to apartment. victim’s The victim offered the defendant a drink, and the two There, went into the bedroom. the victim disrobed and made homosexual advances toward the refused, defendant. The defendant persisted. and the victim The victim defendant, came close to the point and at this pulled pocketknife out and stabbed the victim ensued, several A struggle times. in which the victim was stabbed several more times in the throat area. The cause of death was hemorrhaging from the stab wounds. Lee, N.W.2d 600
Date January Sentence: 1983. had, The defendant day on the on which the murder occurred, driven in from City girlfriend, Kansas with his Welker, Bonnie and Sue Welch. drinking The three were beer and smoking marijuana. evening That the defendant and Welker using were gun Welker’s target practice. do some They bought later by chance, additional shells at K-Mart. Just victim, defendant and Swick, Welker met the Wilbert Gregory one Powell at the intersection of 84th and L Streets at approximately 1:20 driving Corvette, a.m. Powell was Swick’s driving Continental, Welker was a white with defendant in passenger yelled like, seat. Swick something Welker
380 of this he defendant learned going, baby?” When it
“How is car, the got out with stop the angry. He made Welker became Swick, He told Corvette. Swick the gun, approached at close my girl.” He then shot Swick flirting with “Don’t be range. Nollen, opinion. no written
*mStatev. Court, No. 8982. Washington County District January 1983. Date of Sentence: into defendant, age, companion broke years of and a
The Nebraska, robbing Blair, purpose the for doughnut shop young manager, who was in They it. encountered They $200 abducted the closing stole process of the store. knife, They and drove around against her will. had victim they her while sexually assaulted car. The defendant victim’s They her behind her back. tied hands were in the back seat. car, into they ran the car off the dock While alive in the she was river, causing her to drown. Krimmel, (1984). N.W.2d 396 216 Neb. State 21,1983. April of Sentence: Date defendant, years age, jobs did odd for the
deceased,
elderly
man. On the
(84-year-old)
an
who was
4, 1982,
the defendant went to
morning of November
money
jobs
he had done.
to collect some
victim’s residence
$5
became
only
give
had
him. The defendant
The victim
money
being
enraged
he felt he was
cheated out
because
way
was on
jumped
He
the victim as the victim
his
owed to him.
put
hold on the victim
to the bathroom. The defendant
a choke
stabbing
back. The coroner’s
began
him in the neck and
victim.
report indicated 25 stab wounds on the
Meis,
(1984).
217 Neb.
While inside a local
the victim’s friend. The defendant and
comments towards
outside,
they
fight.
were involved in a
stepped
victim
where
pinned
victim
the defendant on a car and then returned to
bar, aiming
subsequently
bar.
reentered the
his
The defendant
the bar. The defendant also
revolver at victim’s section of
telephoning
harassed others. While the bar owner
closing,
left
police,
so the victim
defendant left. The bar was
single gunshot
The victim
also.
died from a
wound to the front
part of his lower chest.
Jones,
Date of Sentence: June The victim and the ongoing dispute, defendant had had an maintaining the defendant that the victim had fired shots into house, nearly hitting days later, the defendant’s a child. Several the defendant entered a north Omaha after-hours club. He saw the victim apology. and asked for an responded The victim *79 saying him, victim, it was the defendant that owed the the apology. The victim was playing seated at a table and cards standing. defendant was The victim leaned over the table to gather money. his When the victim pocket went for put his it, money defendant, into fearing that the victim had a gun, floor, shot the victim twice. The victim fell to the but was yet not table, dead. The defendant went around got top on victim, and shot him three more times. The defendant’s gun clicked several times after this. * Rehbein, opinion. no written
Douglas County Court, 113, District Page Docket 475. 13,
Date of Sentence: June 1983. The defendant penknife used a to cut the screen and enter apartment victim’s attempt in an perpetrate robbery. a The up, victim woke and the being defendant feared identified. The up defendant beat the victim with his fists and a hatchet. The victim multiple died from cutting head, stab or wounds to the neck, upper body, and as well multiple as lacerations of the forehead, scalp and object. inflicted a blunt Massey, 492,
*State v. 218 Neb. (1984). N.W.2d 181 8, July Date of Sentence: 1983.
The defendant and an accomplice lured up the victim to a hotel him, room at the Ramada Inn and robbed after hitting him over the ensued, head with a vodka bottle. A scuffle Massey up the victim and ended in the reaching elevator. After lobby, Massey range side, shot the victim at close in the then ran off.
State Lopez, opinion. v. no written
Douglas Court, County District Page Docket 521. 25,1983. August
Date of Sentence: drinking had been at Wells and the defendant One Maxine morning early of March Room on Mitchell’s Game going she was to solicit Wells advised the defendant 1983. money. her that there get The defendant told some someone She went across the possible customer across street. was a restaurant, talking began to the victim as he a where she street to up behind the The defendant then came from entered his car. beat him on the head with a club. victim and (1986). Neb. N.W.2d 495 Bradford, *State Sentence: December 1983. Date of
The defendant and several other individuals robbed robbery a where defendant’s sister lived. The landlord of house progress when defendant arrived on scene. was then thrown a landlord was stabbed a number of times and into country, a car and taken out to the where he was then trunk of again thrown into a ditch. He was stabbed and his throat cut so severely nearly decapitated. that he was Robertson,
*State v.
with three other who many night. The four decided had solicited “dates” that to rob trying The victim her instead of to rob someone else. assaulted,
verbally
physically
including being
forced to
*80
perform
prostitutes.
an act of oral
on one of the
The victim
sex
Later,
$25.
was then robbed of
she was taken out of the car and
death with a stick and a bat.
beat to
*
Perkins,
491,
(1985).
State v.
Neb.
This is a
case to State v.
above. This
actually
robbery
defendant
instituted the
and stabbed the
victim a number of times.
Jones,
713,
218
(1984).
Neb.
Date of Sentence: victim, Speese, The defendant murdered the Ann and her 12-year-old daughter, body by Tina. Ann’s was dismembered a saw or other mechanical means. Ann’s death was due to instrument, multiple head wounds inflicted a blunt and Tina asphyxiation. reports may indicated Autopsy died of that Tina
[383] assaulted, sexually have been clearly but that was not established. 265, Crisp,
*State v.
219 Neb.
Date of Sentence: June 1984. The defendant escaped had while participating in the Douglas County program work release and stole the victim’scar he so could leave town. investigators Defendant stated to her, out, he struck off, knocked her grabbed tore her clothes her breast, vagina, stuck his hand in “pull her and tried to her insides out.” stabbing He admitted her. He threw her out of the car, partially and her decomposed body was found 1 month later in a field behind an Omaha manufacturing plant.
Following killing, he purse stole her and her car. The years age. was 23 Smith, 176,
*State v. 219 Neb. 361 (1985). N.W.2d 532 12,1984. Date of Sentence: June
Loray Smith was one participants beating death LaPointe, of Laura prostitute. For fuller details see State v.
Robertson, 782, 219 Neb. 366 N.W.2d (1985), and State v.
Joy, 220 Neb. (1985). N.W.2d 113 Ware,
*State v. 219 Neb. 365 N.W.2d (1985). 20,1984.
Date of Sentence: June
The defendant robbed a music store and shot the victim when
attempted
the victim
phone
police.
Benzel,
220 Neb.
Date of Sentence: October 1984. The defendant and another went to the home victim to purchase drugs. house, some Once inside the the defendant began up to beat on the party who had accompanied him (a female). The victim told them to leave. The defendant apparently disputed payment whether or not had been made for drugs grabbed girlfriend put gun victim’s her head. The victim went gun, to his bedroom for a and when returned, he the defendant shot the victim once in the mouth. attempted
He then girlfriend by to shoot the pointing gun at her from a distance of about 5 attempted feet. He three or four shots, gun but the misfired. Joy,
*State v. N.W.2d 113 29,1984. Date of Sentence: November
384 beating death of involved in the individual was another
This Robertson, details, 219 Neb. For full see prostitute. a 782, (1985). N.W.2d 429 366 Haselhuhn, opinion. no written v.
State Court, 65, Page 96. County Docket District Lancaster 11,1984. Sentence: December Date of victim, wife, the were his former Rolenc and
Clement provisions in the decree of dispute the in a about involved Robin Burchett to marriage. their Rolenc hired dissolution truckstop in and had met at a Lincoln her. Rolenc Burchett kill day killing, Rolenc took his arrange the murder. The There, couple met truckstop. at the wife breakfast former couple. to the party, who was unknown Burchett and third drove to Rolenc and the victim was the defendant. This defendant, country by Burchett who in a car followed and defendant, stopped, two cars and the in Burchett’s car. The were actually perform had hired Burchett to who in turn been behind Sitting in the back seat killing, transferred cars. car, husband drove the the defendant
victim while victim’s her to victim’sneck and choked death. slipped a belt around the body and the then carried the victim’s into Burchett ring the victim’s trunk of Burchett’s car. Rolenc removed doing job, purse. paid Burchett and took her Rolenc creek, they where Burchett defendant drove to a drove off. body, large pieces attached three tied the hands feet of it, it to sink the water. of concrete and allowed into Norfolk, (1986). N.W.2d State 19, 1984. Date of Sentence: December home, defendant went to his aunt’s where he obtained a removing clothing his he went to his
butcher knife. After
aunt’s
placed
He then
and stabbed her three
four times.
bedroom
squeezed
her
died. After
his arm around
neck and
until she
body.
attempted to
with
dead
he
have intercourse
her
Burchett,
Neb. 444,
This is case to State v. above. Burchett was hired Clement Rolenc to kill Rolenc’s former Wayne actually wife. Burchett in turn hired Haselhuhn to do *82 Haselhuhn, killing. strangled by the the was After woman body Burchett and Haselhuhn removed her from the car and creek, they weighed body drove to a where then the down and threw it creek. into the Dixon, (1986).
*State v. 387 Neb. N.W.2d 682 17,1985. Date of June Sentence: forcibly
The the home. defendant entered victim’s The victim, elderly lady, apparently lying an was on the kitchen floor, trying use phone help. the to call for The defendant grabbed phone ripped the and from the The it wall. house, through
then and going ransacked the closets drawers. day, lying
The victim was discovered the next dead on the floor. house, extremely It was cold in apparently the and death was exposure due to breaking cold caused aof window to gain access. Hunt,
State v.
Neb.
The defendant knocked on the victim’s when door door, opened victim way forced his in gunpoint. at He then floor, told her complied. to lie on and tied her she He arms and legs panties and her nylon stuffed mouth. took a He death, stocking strangled her, and her then untied removed her clothing, body. Believing and masturbated over her that she fact, pulse, although, dead, still had a she was he carried the bathtub, body to a where placed body he water.
phone rang, he premises, having and then fled the later his wife police report call the and the murder. * Domingus, appeal State v. pending. County Court,
Lincoln Page District Docket 31. 10,1986.
Date of Sentence: November killing 35-year-old female, defendant was convicted of who injuries died of head massive after she beaten with a board. The testimony medical indicated that the victim was alive beating when much of the was inflicted. Much of her head damaged. skull were III. SECOND DEGREE MURDER CONVICTIONS —LIFE SENTENCE IMPOSED. Deckard, opinion. no written 87, Page Court, 382. Docket County
Douglas District April 1974. Sentence: Date of him who took with a friend that he was maintains
Defendant victim were and the The friend victim’s house. over to the money drugs, and defendant having argument over an stop fighting. The victim to gun his and ordered pulled out accidentally. discharged it gun, bumped into victim temple. to the by a bullet wound caused Death was opinion. Goldsberry, written no Court, 39, Page 219. Docket County District Lancaster October 1974. Date of Sentence: crime. On years at the time of the old
The defendant was
11, 1973,
the victim
he observed
morning
of November
misrepresented
way
He
on her
to school.
walking
his home
*83
her. Once she
belonging to
he had mail in his home
to her that
house,
attempting to hold her
he was
the
she realized
entered
go,
began
she
there,
did not let her
and
sought to leave. He
and
He
back as the victim resisted.
pushed her
to scream. Defendant
ground
her.
fell to the
and
hands to choke
She
then used both
shortly
He
her
thereafter.
described
rendered unconscious
was
foamy.
wrapped
Defendant
being
her mouth as
face as
blue and
bag
body.
green trash
over the
body
put
a blanket and
a
the
in
wagon and took it to a
body in a station
placed
He then
the
There,
Rock,
body
the
was
Nebraska.
pasture near Table
bag. He returned
put in the trash
and the clothes
undressed
clothes, along
purse
with her
and
away the
home and threw
by coyotes,
body
ravaged
and the
apparently
The
was
book.
body
The
the
months later.
bones of
skull was found several
coyotes.
apparently
the
throughout pasture,
a
were scattered
Laravie,
(1974).
Date of Sentence: December defendant, only years age, though was married drinking day with and been all friends with a child. He had changed call his wife. He his public phone to use a decided walking phone a in a home. After mind and decided to use began looking into a home and around several blocks he went grabbed anything he could steal. He a knife see if there was home. The protection for in case someone was from the kitchen boy, up victim, 2V2-year-old woke and made a noise. cover the mouth with his hand Defendant tried to victim’s and finally prevent the him stabbed him twice in chest from getting out of bed. Taylor, opinion. no written Court,
Douglas County Page District Docket 592.
Date Sentence: June 1975. Dodge picked up Defendant a hitchhiker at 31st and Streets Omaha, home, arriving Nebraska. After at the victim’s defendant removed a sawed-off rifle from his waistband in his coat, off, safety placed against took the and it the victim’s left temple trigger just area the pulled as victim was about to body leave the car. Defendant around with drove for while car, pushed body car. stopped, He then out robbery, all pockets, searched to make it look like a and shot the victim one more time in back of the head. Braasch, opinion.
State no written Court, County
Adams Page District Docket 285. 15,1975. August
Date of Sentence: victim supervisor in this case was the defendant’s Hastings, company Nebraska. Defendant had worked for the past years early for the 6V2 received much of his education training from victim. The defendant hard feelings had years towards the for victim several because the defendant felt he not getting credit work he did. Walker, 248 N.W.2d 24,1976.
Date of Sentence: March wife, victim, Defendant separated. and his were intercepted Defendant her as leaving place she was her employment in an operated by automobile her brother. *84 fight
Apparently, developed a between defendant and his brother-in-law, during gun which time of the defendant’s discharged, striking killing and the victim. Defendant maintained that he was not aware that the victim had been shot morning, until the next when he turned himself in to authorities.
State v. Hoppes, 275 N.W.2d (1979). 3,1976. of
Date Sentence: June recently Defendant’s wife had moved out after an extended period quarreling of with On evening defendant. the of the then of wine and a bottle defendant consumed
murder the bottle, She he to his wife. which took a second purchased two residence. The let him into her accepted the bottle and together, and a verbal argue getting back began about to that battle. Defendant claims argument physical turned into a face, her wife, aiming missed and hit her but swung he at his wall, backwards and hit the He that she flew in the neck. states he fell, eventually died. Defendant maintains ambulance, the but when he discovered to call for an attempted body placed van and working, not he his wife’s his phone was time, he day, driving for some went The next after home. ice, in some tied a dispose body. the He cut hole decided to chain, log dumped body into body with a wheel to the wife autopsy The died the lake. disclosed that a blow to the neck. strangulation and not reason of Cole, opinion. written State no County Court, Page 68. Docket
Otoe District August 3, Date of Sentence: 1976. fatally home of the victim and
The defendant entered the
hunting
He
the victim’s
her with a
knife.
also stabbed
stabbed
stabbing
11-year-old daughter. There
evidence that after
sexually
She
assaulted her.
was stabbed
victim defendant
was the
once
the throat and twice in the chest. It
wounds
which
her
then carried
the chest
caused
death.
defendant
body
door,
he
his
to the rear
where
the victim’s
over
shoulder
it and left.
dropped
Robinson,
Date of Sentence: day were friends. The defendant and victim close On victim, girlfriend, his of the murder the defendant took her from Omaha Lincoln in his automobile. children habit, supported which he $50-per-day had a heroin evening, by stealing Later in the checks out mailboxes. him, girlfriend, his requested the defendant to return
victim so, refused children Omaha. The defendant to do and her occasions, promised he would. The two though, on several he got fight, approached the ultimately into a and the victim get back, the victim to then defendant. Defendant warned pulled gun out and shot the victim the head. *85 Scott, opinion. v. no written
State Court, No. C-7 52. County District
Cass 7,1976. September
Date Sentence: victim also living girlfriend. The was was with his Defendant romantically theirs, toward the who inclined a friend of was night incident the the of the girlfriend. defendant’s On alcohol. The gun and consumed much defendant had a had staying in the victim’s trailer. girlfriend and her children were there, get her she and he wanted suspected Defendant was door, the bring He went to the and victim and her home. away the defendant and said the
answered. The victim shoved
brought her
girlfriend
come
when the victim
would
home
girlfriend
he
The
bed and told the
that
home.
victim returned to
night.
the
the
in at that time of
going
was not
to let
defendant
going
talk
girlfriend got up
out to
to the
The
and
defendant,
out
a shot. She walked
when she heard
defendant,
hallway
find the
who had
bedroom into the
anyone’s knowledge and who
sneaked into the trailer without
then shot the victim.
State Neb. 10,1976.
Date of Sentence: December party During a
Defendant went to at his sister’s home. evening, a out. argument developed fight an broke One defendant, saying would guests he kill threatened day, The next defendant the next time he saw him.
defendant, smoking marijuana, drinking after alcohol He went over to his purchased rifle and ammunition. then a night happened what sister’s to talk to her about had house gun pointed He with it at her and before. walked in a loaded victim, longtime friend of the persons. several other The defendant, pushed victim or knocked was in the house. The him. There against defendant the wall in an effort to disarm and, two, as the victim was a brief conversation between The bullet entered began away, defendant shot him. walk right the chest near the shoulder. opinion. Bogan, no written Court, 47, Page 7. County Docket
Lancaster District 11,1977. Date of March Sentence: hotel, drinking with lounge was in bartender, victim, was advised a friend of the
friends. money. The victim confronted owed the bar some the defendant it, angry, pulled defendant became the defendant about and the head. A witness to gun, and shot the victim the out his *86 the defendant and shooting that the victim did not strike stated was unarmed. * Womack, opinion. written State v. no Court, County
Keith District No. 6860. 16,1977.
Date Sentence: December way were their The defendant and two codefendants on They guns had stolen Montana to live in the mountains. along way. were involved in a series of robberies
Texas and They trucker. One pulled truckstop, plans off at a with rob a door, and the of the codefendants knocked on the driver’s truck, victim, sleeping up who was inside the raised from the sleeper. through The defendant and shot once windshield through once the driver’s window. The defendant was away. They approximately 10feet then took the victim’s billfold CB and a radio. * Fort, opinion. no written State Court,
Douglas County Page District Docket 423. January
Date of Sentence: 1978. The account of the murder comes from the defendant. He approximately days maintains that he met the victim 10 before night question they the homicide. On the drove to Carter Lake, Iowa, smoking marijuana. the purpose While at lake, maintains, suggested they the victim refused, engage activity. in homosexual The defendant but the point victim continued to make advances. At that the defendant pistol removed a he carried in a shoulder holster and shot the victim three times in the disposed body by head. He then burying grave Glenwood, Missouri, it in a shallow near cards, proceeded stole victim’s credit which he then to use. Price,
State v.
202 Neb.
Date of Sentence: March victim, infant, pronounced an was dead on arrival at a hospital. injuries She had sustained body, numerous about her only and the large fresh wound bump was a on the back of her head, along coming with some blood from her left ear. The mother, defendant, only living who was with the child’s allegedly baby with the at the time she fell down stairs. one Sell, 202 Neb. N.W.2d 26,1978. May Date of Sentence: the victim and then took
Defendant admitted that he first hit country, deep killed her. He inflicted two her out to the where he wounds, right in the neck and one in the side of puncture one cuts around the neck the chest. There were also 15 to small many vaginal bruises in the area. Barnett, 573 (1979). 284 N.W.2d 13,1979. February Date of Sentence: to the victim for about 2lh
The defendant had been married marriage, the defendant years. During the course of this prostitute. that his wife had worked as a On the discovered and his wife had evening before the murder the defendant evening early large consumed amounts of beer. In the late they argue things, ranging morning, began to about various military past in the to the fact from the defendant’s involvement job. attempted vent his that he did not have a The defendant *87 thing defendant anger by throwing flowerpot. a The next gun in standing by could a window with a his hand. recall rifle, He wife 15 times with his .22-caliber which had shot his her, he not attempted held 15 rounds. He to revive but could obviously dead. He called 911 and informed because she was them that he had shot his wife. 867, Myers, (1980).
State v.
205 Neb.
The defendant killed his father head maintained that he shot his while their home. Defendant father because his father was an alcoholic. * Thornton, opinion. State v. no written 105, Court, Page
Douglas County Docket 265. District 1,1980. February Date of Sentence: Thornton, apparently companion case to State v.
This is
105,
Court,
Page
The
Douglas County
Docket
263.
District
murder,
felony
while this
first case involved a life sentence for
degree murder.
one was a life sentence for second
184,
Wredt,
(1981).
Date of Sentence: defendant, along stepmother, planned with his to kill his The stepmother The defendant had discussed with his who father. money personal property of the get
would the insurance and the shooting look like plan deceased. The was to make the an accident. The defendant took his father’s .45-caliber revolver arrived, him come When the victim and waited for home. once, causing him
defendant shot
the victim’s death.
Branch,
279,
(1981).
State v.
Neb.
The defendant and the victim had lived for 3 They arguing fight. were about credit and had cards going victim was to hit the defendant with her shoe while the lying defendant was bed. up on the Defendant reached grabbed her the neck with his hand to hold her off. He held against her the wall and she choked death. Moore,
*mState
209 Neb.
Date of Sentence: 1980. Moore,
Defendant was a
codefendant
the case of State v.
210 Neb.
316 N.W.2d
(1982),
participated
in the
robbery and murder of an Omaha cabdriver. Defendant
14was
years old at the time.
Hardin,
Date of Sentence: June 1981. Defendant and victim were husband wife and had been separated for evening several months. On the question home, ostensibly went to his wife’s to obtain some clothing which was stored parties argument. there. The had an in, defendant walked back parked, got to where his car was through house, and drove the aiming car at what would be the victim’s bedroom. The emerged defendant then from the car, uninjured, weapon, withdrew his and fired five times. His wife later died from four bullet wounds received from the shooting. * Randall, opinion. no written *88 County Court,
Saunders District No. 1845. 10,
Date of Sentence: December 1981. The defendant and two were hitchhiking. They friends obtained a They ride from the victim. later went into a bar with victim, they They where drank. next went to the home of a night end was friend of the victim. At the the victim him giving pull when asked to the three a ride home one of them part over to so he could relieve himself. This was of a scheme stopped literally and fell rob the victim. victim the car out of the car because he was so intoxicated. One of the three punched him and kicked him until the victim was unconscious. body put
His was then in trunk of the car. unconscious dropped drove Defendant and one of others off. The remaining proceeded place friend a then They got west of the Elkhorn River. and heard the victim out pounding on trunk. The defendant hit him with his fists They then him struck over the head with metal bar. then a clothes, him, edge robbed took his and threw him over the into' asphyxia ditch creek. The victim was found either dead drowning from injuries. or of head massive * Davis, opinion. State no v. written County Court,
Saunders District 1846. No.
Date of Sentence: December 1981. companion Randall, This is a to State case v. and the facts are John party identical. Davis was the other involved in the murder. Isherwood, 330 N.W.2d
Date April of Sentence: 1982. defendant, age living then was with a man and his 4-year-old charge son. Defendant was in of caring for the 4-year-old away while the father was day at work. On the question given had she the child a shower and him dressed pajamas an nap. afternoon When the defendant later boy, checked on the he playing with the window sleeping. air-conditioner instead spanked Defendant boy times, five or whereupon boy six told her he hated her and proceeded his father. Defendant boy brutally, beat strangled then him cord, with her either hands or a television both. Hunt,
State
Neb.
Date of Sentence: 23, 1982, On March City, the defendant flew to Kansas Missouri, planned where he to steal an drive automobile and it shop” “chop Waukegan, Illinois, where he intended to *89 defendant, $10,000. City the arriving in Kansas Upon
sell it for 25th days, On the of next staked out cars. the several over the knife-point at from Kansas he abducted a cabdriver March pick up cabdriver to a City airport. The defendant ordered the 1-29, eventually hitchhiker, proceeded them on and three of City, Defendant then near Nebraska. ending up Nebraska The fell down the back. cabdriver an the cabdriver in stabbed running The began and across a creekbed. embankment him, they engaged struggle for in a defendant chased the cabdriver 14 proceeded The then to stab knife. defendant During all of times and his throat times. this more slashed time, life. the cabdriver for his pleaded Clark, opinion. written no Court, County Page 465.
Douglas District Docket September Date of Sentence: 1983. brother, codefendant, entering defendant a were
The and his keys a ignition bar. The noticed in the truck. a local brother out, got began backing the truck The brother the truck and into The left the when he hit another vehicle. brother then scene. victim, truck, part of the learned that defendant’s owner damage. responsible was for the The owner of truck brother then went to the Clark home to discuss the matter. As owner leave, attempted about to he hands with was shake brother, responded by beating kicking who the owner of the joined then The victim vehicle. in. body placed beaten
apparently into unconsciousness and his injuries dumpster, from a trash where he died sustained beating. Clark, opinion. v.
State no written Court, Douglas County 114, Page Docket 464. District 16,1983. September Date of Sentence: companion
The facts of this case are identical to the facts in Clark. preceding case of State v. Crawford, opinion. v. no written State County Court,
Douglas Page 837. District Docket 6,1984. January Date of Sentence:
The defendant and the victim had had a number of sexually had altercations because the victim assaulted the 17-year-old day On the murder defendant’s sister. both large, gathering the defendant and the victim were at a annual Lake, 4,000 7,000 at Carter Iowa. There were between at park. July. The occasion was the Fourth of The defendant and the victim had chance encounter. The two had some words, pulled gun and the defendant his out and shot the victim leg. once the chest and once in the The victim died wounds. * Honeycutt, opinion. State no written County Court, 31, Page
Otoe District Docket 153. *90 24,1984.
Date April of Sentence: Although pleaded the defendant guilty degree to second murder, give any concerning he refused to statement how the disclosed, investigation murder occurred. Further however, the defendant and the victim Apparently, were friends. money defendant needed by hitting beat victim to death him a number of times the face with a brick. When apprehended, the defendant in possession was of the victim’s body car and beyond television. The of the victim was beaten recognition. Harrington,
State v. opinion. no written County Court,
Lancaster Page District Docket 170. 10,1984.
Date August of Sentence: The defendant and the by victim were in a car driven a friend of the pulled defendant. The car was over to the side of the road, and the got defendant and the victim out of the car. The driver observed the defendant hit the victim with a baseball bat splatter and saw blood on the windows of the car. Defendant returned to person. the car with bloodstains on his He then pushed body down the hill toward a creek. Rolenc,
State v. opinion. no written County Court,
Lancaster Page District Docket 263. January 9,1985.
Date of Sentence: wife, victim, defendant and his former were involved in dispute provisions a about the in the decree dissolution of marriage. their The defendant met with Robin Burchett and arranged to him have kill his former day wife. The murder, the defendant took his former wife to at breakfast a There, truckstop. couple Wayne met Burchett and Haselhuhn, who was unknown to either defendant or the country in a car drove to the and the victim
victim. Defendant killers, particular At a were in a second car. followed who transferred into stopped and of the killers point the car one a slipped victim. He car behind the seat of the defendant’s back death. The defendant her to belt around her neck choked purse. The two ring and took her then removed the victim’s creek, car, a body their drove to put her trunk of killers body, and, attaching large pieces of concrete to the after three the water. allowed it to sink into Moss, opinion. no written Court, Page 37. County
Hall District Docket March Date of Sentence: 1985. man, grown defendant, and killed his 67-year-old a shot having disagreement for He had been some
son.
and his son
matters,
involving
including a matter
time over a number of
wife,
defendant fired
not the victim’s mother. The
defendant’s
lay sleeping
as
son
in a trailer.
four shots into his son’s head
his
Eggers,
Defendant beat causing attempted her death. He to revive her and could not. dead, panicked attempted he When he realized she body placing make the death look like an accident calling then 911. bathtub and *91 * 220, 397 Suffredini, State v. N.W.2d 51 (1986). 30,1986.
Date of Sentence: June man outside the door and murdered a The defendant robbed in along Interstate 80 at the rest area the men’s restroom with The was shot five times County, victim Lincoln Nebraska. $240 $180 from him pistol. and was taken a Between .22-caliber by the defendant. MURDER CONVICTIONS —TERM DEGREE
IV. SECOND OF YEARS. Taylor, opinion. written no Court, 68, Page 23. County Docket District
Lincoln 21,1974. Sentence: March Date of years.
Sentence: 20
[397] defendant, day, drinking most of the sold who had been committing buy gun bike shells with intention his to engaged argument with his home and in an suicide. He returned wife, neighbor’s a gun had hidden his at house. victim. She returning gun. Upon They both went over and retrieved the discussing that victim had filed for home and the fact divorce, her then in mouth. defendant shot and shot himself through upper only wounded him. passed lip The bullet his opinion. Hampton, v. no State written Court,
Douglas County Page District Docket 179. 1, 1974. April
Date of Sentence: years. 10 to
Sentence: 20 only in comes from the defendant evidence the case tells, he into the According story he was invited himself. to phone. in the he to use the Once victim’s home when asked victim, female, house, apparent he for no maintains that the a charged her with a knife and reason shot once at him. He the house. stabbed her three times. After she fell he ransacked Bautista, (1975). 835 Neb. 227 N.W.2d State 193 July 23, 1974. Date of Sentence: years.
Sentence: fight a engaged a outside Defendant and the victim’s son left to the defendant the bar bar. After the minor disturbance 10 to He returned to the bar some nephew take his home. then later, carrying a He to the table of rifle. went over minutes was, saying, “Look the victim and asked where the victim’s son me,” then said to the pointing what he to to his face. He did victim, got you here and you it if I now?” “How would like chair, began get up from his effect. The words victim him in the heart. and defendant shot Barajas, N.W.2d 195Neb. 13,1975. August
Date of Sentence: years.
Sentence: 25 they met when girlfriend were at bar The defendant and his defendant’s the victim. The victim was interested target try at it out pistol, the three went .22-caliber they request left the bar practice site. At the victim’s way advances victim made several defendant’s car. On the her and his arms around girlfriend, putting toward defendant’s *92 brushing leg defendant, her with his hand. She told who became angry, car, stopped the get and ordered the victim to out. car, argument
Outside the an developed fight. ensued that into a victim, Defendant shot and wounded the and then killed him with two Mexico, shots to the left cheek. Defendant then fled to where he later arrested and returned for trial. Shonka, opinion. no written County Court, 26,
Butler Page District Docket 36. February
Date of Sentence: 1976. years.
Sentence: 10 defendant, The 33-year-old female, a was married to the victim, age 31, 1975, 63. On October the defendant took her Columbus, Nebraska, husband work, to and then went to a bar to drink. evening, Later that she went Surprise, Nebraska, drinking. to continue Upon leaving the bar she pulled gun out a and waved it around. being She felt she was pushed around. She apparently then went back to her trailer Rising City, Nebraska, home in and shot her husband. While she episode, does not recall the she was found in the trailer with gun. body of her husband was found outside the trailer. Several witnesses stated that she said she should have shot the victim eyes. between the Pigue, no written opinion.
Douglas County Court, District Page Docket 378.
Date of July Sentence: 1976. years.
Sentence: 10 The defendant returned home from February work on 1976, and found that her (the victim) husband had left with her car. The victim did February not return until 18. He apparently also lived with another woman. There had been difficulties between them years. 18th, for several Prior to the the defendant purchased gun, had and when the attempted victim to enter date, the house on that the defendant told him she would kill in, him if he fearing came that he up. would beat her When the house, victim entered the the defendant shot him three times.
State v. Yarbrough,
199Neb.
Date of September 28,1976. Sentence: years.
Sentence: 50 Nebraska, defendant went Fairbury, with several *93 victim’sresidence Fairbury, they stopped at the friends. Once beer group then went to a The entire join her them. and had midnight the Fairbury. At around tavern party at a local of the members argument with one defendant had an The victim residence. back to the victim’s group and was taken lay of them hotel. The two to a local then took the defendant victim. After bed, strangled the the defendant down on a body. The with her intercourse killing her he then had sexual morning, then, in the when he awoke asleep fell defendant body. When he saw with the victim’s again had intercourse face, hitchhiked back scared and her he became blood around by the Lincoln, was later discovered Nebraska. The victim employees. hotel Victor, opinion. written no Court, Page 308. Docket
Douglas County District 15, 1976. Date of Sentence: November years.
Sentence: 20 were friends and next-door and the victim The defendant invited into the maintains that he was neighbors. Defendant with engage in sexual intercourse and asked to victim’s home refused, he knew where she asked whether her. When he she negative. At again replied in the get marijuana. He could some grabbed arm the victim his point the defendant maintains this get away. attempting he was and he stabbed her as opinion. Denney, no written Court, 33, Page 58. County District Docket Knox 7,1977. April Date of Sentence: years.
Sentence: day. drinking been all friends had The defendant and some fight Indian got into a about The defendant and the victim defendant. gun culture. The victim had a and threatened down, got gun, came back upstairs and a defendant then went and, began move toward up and as the victim stood defendant, in the abdomen. shot him once the defendant Johnson, N.W.2d 193
State 30,1977. June Date Sentence: years.
Sentence: 20 drinking beer spent several hours The defendant and a friend They York, encountered Nebraska. driving around younger her and offered them a sister and friends defendant’s way home, car the defendant offered ride home. In the on home, girls. the defendant’s alcohol to one of the minor Once offering juvenile. to a An reprimanded him for alcohol mother followed, argument parties slapped in which both each other brother, reported the face. Defendant’s mother the matter to his phone police hearing who after shots while on the notified gun, talking grabbed to his mother. Defendant had ran church, through the outside toward a local and fired five shots living phoned police room window. Defendant’s mother after defendant was seen her to be in the area of the church. officer, victim, police parking went to the church lot car, Shortly he stepped across the street. after out of his chest, causing shot him once in the his death. *94 * Brick, opinion. State v. no written County Court, Cheyenne District No. 9179. 20,1977. September
Date of Sentence: years.
Sentence: 40 companion
This is a case to Simpson, 200 Neb. N.W.2d (1978), in which a degree life sentence for first defendant, child, imposed. murder was her and her brother they money. decided to hitchhike to California because had no trucker, They got gave addition, $20. a ride with who them In they gun belonging got stole a to the trucker. three then ride, victim, with another this time who offered to take way Along way, them all the to California. the defendant and her brother determined to rob the victim and take his car. signal brother, pulled gun On a from her the defendant out the they placed against had stolen and it the victim’s head. She stop, ordered him to but he resisted. She shot him in the back of twice, paralyzed head which caused the victim to be but not body dead. The defendant and her pulled brother then into Kimball, a borrow pit off of Interstate 80 near Nebraska. The times, defendant’s brother shot the victim two more and then the two left for California. Hander, opinion. no written County Court,
Cedar District No. 6528. 17,1977.
Date of Sentence: November years.
Sentence: 15 a mutual friend of the separated, Defendant and his wife and angry became parties moved in with the wife. Defendant scuffled, defendant said to the ordered him out. The two he, defendant, did out victim that if the victim not move Later, kill him. saw his wife with the victim would angry. and became He obtained a .22-caliber rifle and followed got parked the victim. When the victim his automobile and out car, of the and killed him. Defendant the defendant shot thought going weapon. maintained he was for a the victim Forster, opinion. *State no written Court, County
Platte 2820. District No. 8,1977.
Date of Sentence: December years.
Sentence: 35
Roewert,
companion
County
This is a
case to State v.
Platte
Court,
District
in which
No.
a life sentence for first
degree
imposed.
murder was
The defendant and some friends
drinking
Norfolk, Nebraska,
were
planned
at a bar in
They
they
rob and kill the victim.
determined
would kill the
victim so as not to be identified. The victim
lured
was
out of
by inviting
They
bar
party.
country
him to a
drove him
out to
road,
they
passed
where
took
While the victim
his billfold.
intoxicated,
being
out from
Roewert cut his throat and then
decapitated
over,
body,
him. He then disemboweled the
rolled it
willingly
and cut it about the
participated
back. The defendant
robbery
disposed
and later
in a
wallet
trash
'
receptacle.
Brown,
*State v.
Date of Sentence: December 1977. *95 years.
Sentence: 35 The in the same as State individual here was involved case Roewert and State v. Forster. Denman, opinion.
*State v. no written Court, County
Keith District No. 6886. February
Date of Sentence: 1978. years.
Sentence: 25 fact as is involved in State v. This is the same situation Court, Womack, a County Keith No. in which District degree imposed. murder was life sentence for second 402 opinion. written Stofer, no
State v. Court, No. 1058. County District Saline 6,1978. March Sentence: Date of years. 40
Sentence: home, drinking, returned defendant, been who had was in mother while she killed his gun, shot and picked up a sleeping. bed * opinion. Epp, no written State v. Court, County No. J-70. District
Gage 8, 1978. June
Date of Sentence: years.
Sentence: it, lived close victim, liquor store and who owned a shotgun security go off. He took a alarm night heard his one gone up and had investigate. Defendant was there and went to it, locked. the door was to rob but liquor store to the door once, inquired what after the victim the victim Defendant shot leave. defendant to doing there and told the defendant away car. in his shooting the defendant drove After Coleman, opinion. no written Court, Page 250. Docket County District Douglas 25,1978. July Date of Sentence: years.
Sentence: money that argued over some and the victim The defendant phone went to a The victim then owed the victim. the defendant and, when he place argument took in the tavern where help. he had called for returned, defendant told the victim had individuals the trouble with the Defendant had had victim’shome to talk called, He later went over to the he left. so They 12-gauge had a nephew with him. it He took his over. defendant When the shotgun .38-caliber revolver. and a ensued, and, victim, argument a second confronted off, killing the victim. shotgun went subsequently, the N.W.2d 449 Marteney, 210 Neb. March 1979. Date of Sentence: years.
Sentence: DuBois, Nebraska, and entered a local bar The victim Shortly after the get glass of water. went the bar to behind entered, carrying rifle. bar, victim entered standing victim was where the walked near to The defendant
[403] something leaving daughter-in-law about his mentioned Apparently, alone. the defendant believed that the victim having daughter-in-law. an affair with He then raised the his rifle and shot the victim in the chest. Samuels,
State v.
205
(1980).
Neb.
Sentence: According given by defendant, to the statement victim taken money had from the defendant’s friend. The victim, defendant went to pulled gun see the and the victim a on alongside defendant. Defendant was when victim’s car times, he shot the victim three and then ran from the scene because he was scared. Morris, opinion.
State v. no written
Douglas County Court, 106, Page District Docket 203. 9,1980. January
Date of Sentence: years.
Sentence: 20 defendant, drinking heavily who had been and who had just job years baker, lost of 22 his as a shot killed second his wife, who had filed for divorce. Paulson,
State v.
211 Neb.
(1982).
Sentence: 15
The defendant and several
a
others were members of
social
“family.” A
get
codefendant was told that if he
wanted to
good
family
victim,
with the
he would have to kill the
another
family,
member
or he would be killed. Defendant was
apparently one of the organizers
plan.
night
of the
On the
of the
murder
party
family
was held at the
of one
home
Upon signal
members.
shot the victim. The
codefendant
body
Iowa,
was thrown
into a creekbed
where it
was found
week later.
Stranghoener,
208 Neb.
(1981).
Date of Sentence: June 1980. years.
Sentence: Paulson, companion This is a to State case N.W.2d 115 Defendant here was a member of the “family” organizers and one of the of the murder. Green, opinion. no written Court, No. 6177. County District
Buffalo 25,1980. July Sentence: Date of years.
Sentence: victim, were wife, separated. his defendant and *97 divorce, attempted several couple the wife for a the filed After day the crime the sessions, On the of counseling which failed. payment home to discuss wife at their defendant visited his the bathroom. He came asked to use of bills. Defendant certain kitchen, bathroom, got a drink of water at went to out of the sink, wife three times. and shot his Herren, opinion. no written v. State Court, 28207. County No. Bluff District
Scotts 26,1980. September Date of Sentence: years.
Sentence: cocaine, heavily using defendant, drinking and after The barbiturates, LSD, girlfriend and stabbed her attacked his and only feigning Upon death. of times. She lived a number went to the home girlfriend’s apartment defendant leaving the had drug program leader who alcohol and detoxification an was aiding the The leader killed been involved in defendant. defendant, by the wounds inflicted multiple reason of stab including after death. several Jackson, opinion. v. no written
State Court, 107, Page
Douglas County District Docket 500. of Sentence: November 1980.
Date years.
Sentence: in an on and the victim were involved altercation Defendant street, being respective The public a each in his automobile. defendant, yield right-of-way refused to the and victim got stop light At a the victim out also delivered racial remarks. The defendant’s car. defendant his car walked over
got gun the victim three times. his from under his seat and shot Payne, opinion. no written Court, Page
Dodge 169. County District Docket Date of Sentence: November 1980. years.
Sentence: 17 park. lived in the same trailer The defendant and the victim drug apparent feelings were ill dealer. There The victim drug a record took book of between the two. defendant may have trailer and victim’s money from the and some sales murder occurred. when the returning them been Stocker, opinion. no written State Court, Page 62. Docket County
Douglas District 27,1981. February of Sentence: Date years.
Sentence: He the defendant. neighbor of was a victim in this case in front junk cars to the street mechanic towed was an auto cars, often into on the then worked The victim both homes. between the arose evening. Friction the late hours were left on cars that victim over the and the Omaha Police calls to the repeated Defendant made street. day On the unresolved. went on but the situation
Department, bar, drinking came defendant, at who had been question late, car. It was so working on a outside to find the victim home lights and cease to shut off the victim the defendant asked vulgar language and with responded working. The victim house gun his from his working. retrieved Defendant continued discharge. He twice, was no trigger but there pulled *98 a distance once from shot the victim injected another shell and 15to 20 feet. opinion. no written Kemp, State v. 109, Court, Page 441. Docket County District
Douglas 29, September 1981. Date of Sentence: years.
Sentence: 25 Department 22, 1981, Police February the Omaha On defendant, defendant advised at which time from received a call police The were girlfriend. he had shot his police that times in the victim shot three and found the directed to the scene following day. pistol. She died the head with a .22-caliber (1982). Brown, N.W.2d 107 213 Neb. v. State 14,1981. December Date of Sentence: years.
Sentence: the victim had an that he and maintained Defendant knife. Defendant pulled out a the victim argument and that argument building where the out of the he retreated claims that Finally, the defendant said pressed on. victim began but that the warning into shot fired pocket, from his a revolver pulled he approximately fired good, did he when that no ground, and five found, more shots into the victim. When the victim was victim, knife beside was but was contrary closed. There was indicating evidence opened the victim never the knife. Harton, opinion.
State no written County Court,
Lancaster District Page Docket 5.
Date of Sentence: March 1982. years.
Sentence: 35 The defendant and the victim were both city residents of a Lincoln, Defendant, mission in Nebraska. day after a drinking, returned to the mission. He remembered that he had loaned a radio to the victim and went to the victim’s room to retrieve the radio. The victim maintained that he did not have got radio. The two quarrel into a began fighting, pulling out knives. The defendant eventually stabbed and killed the victim. Rowe, 214 Neb. 335 N.W.2d July 29,
Date of Sentence: 1982. years.
Sentence: 25
The defendant
body
murdered his wife. The
was discovered
by firefighters who were
called
neighbors
to the scene
who
reported a fire at the defendant’s residence.
body
found partially
wrapped
burned and
in blankets in one of the
second floor bedrooms.
autopsy
report revealed that one
of the victim’s breasts had been removed and that there was an
incision
the trunk of the victim extending from below the
pubic
breastbone to the
area and
vagina
into the
and the
rectum. The victim also had
depressed
suffered a
skull fracture
and broken ribs.
Rife,
Date of August 19, Sentence: 1982. years.
Sentence: 30 The defendant and victim were coworkers at a motel. Defendant entered the apartment victim’s and asked if she wanted to “mess around.” The victim started playing with the *99 shirt, buttons on defendant’s and when defendant started to blouse, unbutton said, victim’s “No, she I don’t want to.” Defendant pottery took a vase and hit her about the head and face three or four times. He then struck her once with mug. a He went to the kitchen for a butcher knife and cut her throat. Rush, opinion.
State v. no written Court, 114, Page 115. Douglas County Docket District February 1983. Date of Sentence: years.
Sentence: during fight wife a over an Defendant shot and killed his alarm clock. opinion. written Klinginsmith,
State v. no Court, 31, Page County 201. Hall District Docket May Date of Sentence: 1983. years.
Sentence: night The defendant killed his former wife. On sitting When wife murder he was with his children. his former home, struggle gun which the returned ensued over possession. Following struggle, had in his his gun away getting ex-wife succeeded in from him and leaving. informed him that The defendant then she was get gun obtained a knife from the and tried back. A house ensued, struggle second which culminated in the defendant’s shooting handgun. his ex-wife with the Jones, opinion.
State v. no written Court,
Douglas County Page District Docket 509.
Date of Sentence: June 1984. years.
Sentence: 12 victim, The dating defendant killed the who was former his girlfriend. killing accomplished with a knife. Voskamp, opinion. no written Court, County Page
Saunders District Docket 231. 30,1984. July
Date of Sentence: years.
Sentence: 15 The victim had moved in with the defendant’s wife while the away driving defendant was an Upon over-the-road truck. trip
return from his the defendant found the defendant’s belongings in his car with a note from his wife. It told him not to seeking return because she was a divorce. defendant took a gun door, and went to his wife’s house. He kicked in the back him, running and when the victim came at the defendant shot twice, killing the victim. Valerio, opinion. no written Court, County
Banner District No. 1164. *100 18, October 1984.
Date of Sentence: years.
Sentence: 35 During fight with the.defendant. engaged in The victim was with his knife and cut the victim’s face fight, the defendant Later, hostage. victim was taken out held him apparently baling twine and a country, up he was tied with into the where placed in the back head. He was then gunnysack placed over his point At this pickup- truck with the defendant. of a victim of the others stabbed the possibly defendant and some were wounds in all. death. There 18 stab
V.CASES INVOLVING CHARGES OF MANSLAUGHTER OR LESS. Jackson, Court, County
State v. Dakota District No. 8803. 12, years Date of Sentence: October 1973. Sentence: 10 for manslaughter. Andersen, Court, County v. Dawson District Docket
State 26, 45, Page Date of Sentence: October 1973. Sentence: 3 296. years manslaughter. to 9 for Court, Ralls, County 37, District Docket
State v. Lancaster 5, February Page 1974. Sentence: 3 to 8 125. Date of Sentence: years manslaughter. for Court, County District No. Long,
State v. Dakota 8934. 25, years Sentence: 2 to 7 Date of Sentence: March 1974. for manslaughter. Court, Douglas County Kinghorn, v. District Docket
State 90, 10,1975. Page February 318. Date of Sentence: Sentence: 3 years’ manslaughter. probation for Johnson, Court, Douglas County District
State v. Docket 89, 21,1975. Page July 664. Date of Sentence: Sentence: Youth during minority. Development Center Sherman, Court, County Fillmore
State v. District No. 7726. 4, years Sentence: November 1975. Sentence: 10 for Date of manslaughter. Abbott, Court, County
State v. Richardson District Docket 6, May Page 75. Date of Sentence: 1976. Sentence: to 10 years manslaughter. for Rice, Court, County District
State v. Lancaster Docket Page September 1976. 121. Date of Sentence: Sentence: years manslaughter. for Court, Honorable, County Douglas District Docket 19,1976. Page 317. Date of Sentence: October Sentence: 10
years manslaughter. for Ralls, Court, County Lancaster District Docket
Page May 23,1977. years 1. Date of Sentence: Sentence: 10 for manslaughter. Court,
State McGaughey, County Keith District No. 28,1977. years 6850. Date of Sentence: October Sentence: 5 *101 manslaughter. Lashley, Court, Douglas County
State v. District Docket 100, Page February 2,1978. 276. Date of Sentence: 1 Sentence: year manslaughter. for Wright, County Court, 30,
State v. Sarpy District Docket Page 6, years’ 293. Date of Sentence: March Sentence: 1978. 5 probation manslaughter. for Welsh, Court, County 48,
State v. Lancaster District Docket Page 20, 86. years Date of Sentence: March 1978. Sentence: 10 manslaughter. for Williams, County Court,
State Douglas v. District Docket 101, Page 12,1978. May 246. Date of Sentence: Sentence: 2 to 4 years manslaughter. for Coleman, Douglas County Court,
State v. District Docket 102, Page 25, July 251. Date of Sentence: 1978. Sentence: 10 years manslaughter. for Denbo, County Court,
State v. Chase District No. 4121. 2, Date August of Sentence: Sentence: 18 4 1978. months to years manslaughter. for Ellis,
State v. County Court, 52, Lancaster District Docket Page 24, August 6. Date of Sentence: years 1979. Sentence: 10 manslaughter. for Court, 38, Meegan, Sarpy County
State v. District Docket 2,1980. Page 148. Date of Sentence: June Sentence: 18months years accessory felony. to 5 for to a Thomas, Court, County 38,
State v. Sarpy District Docket Page 2,1980. 147. Date of Sentence: June Sentence: 15months years accessory felony. to 4 for to a Leander, Court, 38, Sarpy County
State v. Docket District Page 3, 151. Date of Sentence: June Sentence: 5 to 15 1980.
410 murder. degree first commit
years conspiracy for Court, County No. Schommer, District Fillmore State v. 7,1980. years 20 for Sentence: October 8001. of Sentence: Date manslaughter. Court, County No. J-171. Warford, Gage District
State v. 5, years 6 to 12 for Sentence: March 1981. Date of Sentence: manslaughter. Court, 56, County Ihm, Docket District
State v. Lancaster 1,May years’ Sentence: 5 Page of Sentence: 1981. Date 160. manslaughter. probation for Court, Gilbert, County No. 7812. Hamilton District
State v. years 10 for May 1981. Sentence: Date of Sentence: manslaughter. Court, Rath, County Douglas Docket v. District
State January 25, Sentence: 6 2/3 Page 1982. 213. Date Sentence: years manslaughter. for Court, Beverly, Douglas County Docket District May 4,1982. Sentence: 6 to Page 64. Date Sentence: years manslaughter. for Court, Alexander, County Lancaster District 58, Page November 128. Date of Sentence: 1982.
Docket years manslaughter. years 8 months to Sentence: Armour, Court, Douglas County District Docket State 19,1984. 4 7 Page Date Sentence: 677. of Sentence: June *102 years manslaughter. for Carr, Court, County Douglas District Docket 29,1984.
Page year 787. Date of Sentence: June Sentence: 1 for felony. accessory to a Court, Denby, County District Docket Lancaster
Page 284. Date of December 1985. Sentence: 6 Sentence: years years manslaughter. 8 months to 20