State v. VelaState v. Vela
TABLE OF CONTENTS I. Introduction............................................................ 275 II. Aggravation Hearing..................................................... 276 1. Background......................................................... 276 (a) Bank Murders .................................................. 277 (b) Lundell Murder................................................. 278 (c) Discovery Requests............................................. 279 2. Assignments of Error............................................... 279 3. Standard of Review................................................. 280 4. Analysis and Resolution............................................ 280 (a) Ex Post Facto Claim............................................ 280 (b) Notice of Aggravating Circumstance (1)(a)...................... 283 (c) Jury Instruction: Malice....................................... 285 (d) Jury Instruction: Lesser-Included Offenses..................... 287 (e) Jury Instruction: “Other Crime“................................ 287 (f) Jury Instruction: Aiding and Abetting.......................... 288 (g) Motion for Discovery........................................... 291 III. Mental Retardation Proceedings.......................................... 292- 1. Background......................................................... 292 (a) Legal Context.................................................. 292 (b) Motions........................................................ 292 (c) Mental Retardation Hearing..................................... 293 (d) Order.......................................................... 299 2. Assignments of Error............................................... 299 3. Standard of Review................................................. 299 4. Analysis and Resolution............................................ 300 (a) Access to Department of Correctional Services’ Records.......... 300 (b) Independent Evaluation.......................................... 301 (c) Presumption of Mental Retardation .............................. 304 (d) Finding That Vela Is Not Person With Mental Retardation......... 304 (i) Intellectual Functioning................................... 304 (ii) Adaptive Behavior ......................................... 305 IV. Sentencing Proceedings................................................... 308 1. Background.......................................................... 308 (a) Vela‘s Evidence ................................................ 309 (b) State‘s Evidence................................................ 310 (i) Rebuttal................................................... 310
(ii) Victim Impact Testimony ................................... 311 (c) Sentencing Order................................................ 311 2. Assignments of Error................................................ 313 3. Standard of Review.................................................. 313 4. Analysis and Resolution............................................. 313 (a) Victim Impact Testimony......................................... 313 (b) Mitigator (2)(b)................................................ 315 (c) Mitigator (2)(e)................................................ 315 (d) Proportionality Review by Sentencing Panel...................... 315 (e) De Novo Proportionality Review.................................. 316 (f) Method of Execution............................................. 317 V. Conclusion................................................................ 317
I. INTRODUCTION
On September 26, 2002, Erick Fernando Vela and two other armed men walked into a bank in Norfolk, Nebraska. In less than a minute, they shot and killed four bank employees and one customer. Vela was apprehended and eventually pled guilty to five counts of first degree murder and five counts of use of a weapon to commit a felony. The district court for Madison County accepted his pleas and found him guilty of all 10 offenses.
Because the State sought the death penalty, an aggravation hearing was conducted before a jury to determine whether one or more of the alleged aggravating circumstances existed. The jury determined that five statutory aggravating circumstances existed for each of the murders.
Vela moved to have electrocution as a means of execution declared unconstitutional. His motion was overruled.
Vela then filed motions to preclude the imposition of the death penalty under a Nebraska statute which provides that “the death penalty shall not be imposed upon any person with mental retardation.”1 The district court granted the State‘s motion to have Vela examined by its chosen expert with respect to his allegation that he was a person with mental retardation. Vela filed an interlocutory appeal which, on March 23, 2005, in case No. S-04-1324, we summarily dismissed based upon our determination that the order was not final and appealable. Following remand, the district court conducted an evidentiary hearing and determined that Vela had not proved that he was a person with mental retardation as defined by applicable Nebraska statutes and overruled his motion to preclude imposition of the death penalty. We dismissed Vela‘s interlocutory appeal from that order.2
A sentencing hearing was conducted before a three-judge panel. After receiving evidence, the panel found that the aggravating circumstances outweighed the mitigating circumstances and sentenced Vela to death for each of the five counts of first degree murder.
The cause before us is Vela‘s automatic direct appeal from the sentencing order.3 Vela has assigned numerous errors by the district court. We shall address them in three separate groups, corresponding to the stage of district court proceedings to which they relate: the aggravation hearing, the mental retardation hearing, and the sentencing proceedings. Additional facts will be set forth where pertinent to our discussion and analysis.
1. BACKGROUND
The original information filed against Vela on October 31, 2002, charged five counts of first degree murder and five counts of use of a weapon to commit a felony, but did not include notice of aggravating circumstances. The third amended information filed on June 9, 2003, charged the same offenses and included a notice of aggravating circumstances with respect to each murder count.4 Each notice used the statutory language defining the aggravating circumstance5 but did not include more specific factual allegations. In particular, the notices did not specifically allege that the State intended to establish a “substantial prior history of serious assaultive or terrorizing criminal activity”6 by proving that Vela, prior to the bank murders, committed the first degree murder of Travis Lundell. Vela pled guilty to the charges in the third amended information.
Upon accepting Vela‘s guilty pleas, the trial court scheduled a hearing before a jury to determine whether any of the aggravating circumstances alleged by the State existed. At the time Vela committed the murders in September 2002, Nebraska‘s capital sentencing statutes provided that the sentencing judge or panel would determine the existence of any aggravating circumstances which could warrant imposition of the death penalty.7 But in November 2002, the Nebraska Legislature, meeting in special session, enacted L.B. 1,8 which amended Nebraska‘s capital sentencing statutes. L.B. 1 was enacted in response to the holding of the U.S. Supreme Court in Ring v. Arizona,9 decided on June 24, 2002. In Ring, the Supreme Court held that, other than the finding of a prior conviction, the determination of aggravating circumstances in a capital case must be made by a jury unless waived by the defendant. The amendments made by L.B. 1 became effective on November 23, 2002,10 approximately 7 months before Vela entered his guilty pleas.
Prior to the scheduled aggravation hearing, Vela filed a motion alleging that the death sentence could not constitutionally apply to him because L.B. 1 was ex post facto legislation. Vela also filed a motion which sought, inter alia, to prohibit the submission of aggravating circumstance (1)(a) to the jury on the ground that the information had not alleged the specific acts upon which the State based the existence of this aggravating circumstance. The district court overruled both motions.
At the commencement of the aggravation hearing, the parties stipulated that Vela shot and killed Lisa Bryant; that Jorge Galindo shot and killed Lola Elwood; and that Jose Sandoval shot and killed Jo Mausbach, Evonne Tuttle, and Samuel Sun. Throughout the aggravation trial, Vela objected to evidence and testimony concerning the actions of Sandoval and Galindo. He argued that such evidence was irrelevant because aggravating circumstances could not be based on aiding
(a) Bank Murders
Much of what transpired on the morning of September 26, 2002, was photographed by the bank‘s surveillance cameras. Recorded video and several time-stamped still-frame photographs from the surveillance system were received into evidence during the aggravation hearing. The photographic evidence showed that at 8:44:56 a.m., Galindo, followed by Vela and then Sandoval, entered the bank through its front door. Sandoval walked straight ahead to the teller counter, where he shot bank employees Sun and Mausbach and bank customer Tuttle at close range. Tuttle sustained a penetrating gunshot wound to the head and another gunshot wound which entered the back of her left hand. Sun sustained two penetrating gunshot wounds to his head and another which entered his neck and passed through his chest. Blood from the wounds filled Sun‘s air passages, causing his death by asphyxiation, described by the pathologist who performed the autopsy as a “horrible-type of death” occurring over a period of several minutes. Mausbach sustained a gunshot wound to the head. Like Sun, she died from asphyxiation resulting from blood filling her air passages over a period of several minutes.
After entering the bank, Galindo immediately approached the private office of Elwood, which was located off the bank lobby to his left as he entered the building. Bank employees Cheryl Cahoy and Susan Staehr were seated in the office, meeting with Elwood. As Galindo approached the office, Cahoy heard a gunshot and an unidentified male voice ask if the alarm had been pulled. Cahoy heard more gunshots and ducked her head. As she did so, she heard Elwood scream. When she looked up, she saw Elwood slumped over in her chair. Elwood sustained two gunshot wounds which penetrated her lungs and heart, and a third gunshot wound to the right side of her abdomen. Neither Cahoy nor Staehr was injured.
After entering the bank, Vela immediately proceeded to Bryant‘s private office, located off the bank lobby to Vela‘s right as he entered the building. Surveillance photographs show that he entered Bryant‘s office by 8:45:06 a.m. and exited the office at 8:45:27 a.m. Bryant‘s body was found lying behind her desk. She was shot at close range; one bullet penetrated her left hand as it was held up and then entered her neck. Another bullet fractured her right femur and lodged in her thigh. Bryant died from asphyxiation caused by blood from the neck wound entering her air passages, causing her to struggle for air over a period of several minutes.
Bank customer Micki Koepke arrived at the bank at approximately 8:45 a.m. As she entered the building, she saw Sandoval at the teller counter. At 8:45:29 a.m., Galindo fired at Koepke from where he stood in the doorway of Elwood‘s office. The bullet entered and exited Koepke‘s upper right shoulder, and she ran to her vehicle and called the 911 emergency dispatch service. The shots Galindo fired at Koepke also struck a fast-food restaurant across the street from the bank.
Vela, Sandoval, and Galindo left the bank about 45 seconds after they entered. A witness who observed Vela shortly after he left the bank testified that he was smiling. The three men forcibly entered an occupied home near the bank. Vela put a gun to the head of one resident, and the men demanded and received car keys belonging to another resident. They obtained the keys and escaped in the stolen vehicle without injuring any of the occupants of the home. They were apprehended
Vela pled guilty to burglary, robbery, and use of a firearm to commit a felony in connection with this incident. Sandoval and Galindo were tried, convicted, and sentenced to death on each of five counts of first degree murder and related weapons charges; we recently affirmed Galindo‘s convictions and sentences,11 and Sandoval‘s direct appeal is pending by this court. Gabriel Rodriguez, who participated in the attempted bank robbery but was not in the bank when the shots were fired, was convicted of five counts of first degree murder and related weapons charges and sentenced to life imprisonment.12
(b) Lundell Murder
Lundell was reported missing on August 20, 2002. By letter dated January 21, 2003, the prosecutor notified Vela‘s counsel that if “Vela wishes to discuss the disappearance and strangulation murder of ... Lundell, we are available to listen to whatever he wishes to disclose.” In a second letter dated March 11, 2003, the prosecutor advised Vela‘s counsel that he intended to use the Lundell murder at the “aggravation stage” of Vela‘s trial. On March 17, Galindo led investigators to a rural area of Madison County, Nebraska, where the body of Lundell was recovered from a shallow grave.
At the aggravation hearing held in September 2003, the State presented evidence, over Vela‘s continuing objection, of his involvement in the death of Lundell, in order to establish the aggravating circumstance that Vela had a “substantial prior history of serious assaultive or terrorizing criminal activity.”13 Lundell‘s severely decomposed body was found wrapped in a comforter held together by strapping tape beneath approximately 3 feet of earth. A bandana scarf was tied around the mouth and knotted in the back of the neck. The feet were bound together by a fabric strap and string. A forensic pathologist who performed an autopsy testified that the state of decomposition was consistent with burial in a moist grave since August 2002. Due to the extent of internal and external decomposition, the cause of death could not be determined.
Lundell‘s mother testified that in August 2002, he had been living in a Norfolk apartment with Sandoval and two other persons. He normally contacted her at least once every 2 weeks, but she last heard from him on August 15. At that time, he was 19 years old. Lundell regularly wore a watch which he had purchased in about May 2002, but it was not found on his body or at the site of the exhumation, and his mother did not find it among his personal belongings at his apartment. Vela was wearing a watch at the time of his arrest on September 26; it was taken by law enforcement personnel and stored with his personal property. Lundell‘s mother identified this watch as belonging to Lundell.
Several persons who had been incarcerated with Vela after his arrest for the bank murders testified that he admitted his involvement in the killing of Lundell. One witness testified that after seeing a television news account of the discovery of Lundell‘s body, Vela told him that he strangled Lundell because he had stolen marijuana from Sandoval and was giving information to the police. Vela also told this witness
Another former cellmate testified that Vela told him about a “boy” whom he, Galindo, and Sandoval had killed and buried. The witness testified that Vela told him that he strangled the boy with a wire while Galindo was holding his legs. According to this witness, Vela told him they killed the boy because he owed money to Vela and Sandoval. Vela also told the witness that he had taken a watch from the boy “because he liked it.” Vela described the watch as silver with a blue face. Another person who was acquainted with Vela both in and out of jail testified that he admitted involvement in the Lundell murder but did not “end it.”
Also received in evidence at the aggravation trial was a letter which Vela wrote to his family while in jail, but did not send. In the letter, Vela stated that he was involved in Lundell‘s death and that he was sorry about it, but that “if I wouldn‘t do it they would of kill[ed] me and I couldn‘t escape from them and I was ashame[d] to ask [for] help.”
At the conclusion of the aggravation hearing, the district court instructed the jury on five aggravating circumstances.14 The instructions generally followed the NJI2d Crim. 10.1 model instruction for jury aggravation proceedings. With respect to aggravating circumstance (1)(a), the “substantial prior history of serious assaultive or terrorizing criminal activity,” the court gave an instruction which included all the elements of the first degree murder of Lundell. The instructions defined premeditation, but did not define “malice.” The court did not instruct on the lesser-included offenses of first degree murder as part of the aggravator.
The jury returned a verdict finding all five aggravators existed for each of the five murders. The district court overruled Vela‘s motion for new trial.
(c) Discovery Requests
In May 2006, more than 2½ years after the jury‘s determination of aggravating circumstances, Vela filed a motion requesting leave to take the depositions of five persons who had been convicted in federal criminal proceedings. Vela argued that the depositions were needed to determine whether the discretion of the lead prosecutor in his case had been “burdened by a conflict of interest created by [the prosecutor‘s] alleged involvement” in a criminal conspiracy involving some of the convicted felons.15 Vela‘s motion alleged that two of the witnesses who testified for the State at his aggravation hearing were linked to the alleged conspiracy. The district court denied the motion to take the depositions, determining that there had been no showing that the proposed depositions would be relevant or material to the proceedings involving Vela.
2. ASSIGNMENTS OF ERROR
Vela assigns, restated and renumbered, that the district court erred in the following:
1. Denying his motion to prohibit any jury aggravation trial because L.B. 1 is ex post facto legislation, in violation of article I, § 10, of the U.S. Constitution and article I, § 16, of the Nebraska Constitution.
2. Receiving evidence at the aggravation trial concerning the Lundell homicide
3. Failing to define the term “malice” in its jury instruction on aggravator (1)(a), in violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution and article I, § 3, of the Nebraska Constitution.
4. Failing to instruct on the lesser-included offenses of first degree murder in its jury instruction on aggravator (1)(a), in violation of
5. Failing to identify and define the crime for which Vela was allegedly trying to conceal the identity of the perpetrator with regard to aggravating circumstance (1)(b), in violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution and article I, § 3, of the Nebraska Constitution.
6. Receiving evidence concerning the actions of Vela‘s codefendants and by instructing the jury that the alleged aggravating circumstances could be based upon liability as an aider and abettor, in violation of the 8th and 14th Amendments to the U.S. Constitution; article I, § 9, of the Nebraska Constitution; and the language of § 29-2523.
7. Failing to grant his motion to take additional depositions and recuse the Madison County Attorney, in violation of Neb. Rev.Stat. §§ 25-1233 and 29-1917 (Reissue 2008) and the 6th and 14th Amendments to the U.S. Constitution.
3. STANDARD OF REVIEW
The constitutionality of a statute is a question of law, regarding which the Supreme Court is obligated to reach a conclusion independent of the determination reached by the trial court.16
Whether a jury instruction is correct is a question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.17
The trial court has broad discretion in granting discovery requests and errs only when it abuses its discretion.18
4. ANALYSIS AND RESOLUTION
(a) Ex Post Facto Claim
Both
We have previously rejected claims that L.B. 1 constituted ex post facto legislation with respect to the imposition of the death penalty for first degree murders committed before its enactment. State v. Gales (Gales I)23 was an appeal from two death sentences imposed in 2001 for first degree murders committed in 2000. It was pending before this court at the time of the Ring decision and the Legislature‘s subsequent enactment of L.B. 1. The defendant in Gales I objected to the State‘s request that the matter be remanded for sentencing pursuant to L.B. 1, arguing that L.B. 1 constituted a substantive change in the law which could not be applied retroactively without violating the constitutional prohibition of ex post facto legislation. We held that the change which required a jury instead of a judge or panel of judges to determine the existence of aggravating circumstances was procedural in nature and remanded the cause to the district court for resentencing. On remand, in State v. Gales (Gales II),24 the defendant was again sentenced to death after a jury determined the existence of multiple aggravating circumstances, and this court affirmed those sentences on direct appeal.
Subsequently, in State v. Mata (Mata I),25 we rejected a similar claim. As in Gales I, the defendant in Mata I committed first degree murder and was sentenced to death before the Ring decision and the enactment of L.B. 1. On direct appeal, we affirmed the conviction, but pursuant to our holding in Gales I, we vacated the death sentence and remanded the cause for resentencing on the charge of first degree murder. On remand, in State v. Mata (Mata II),26 the defendant was once again sentenced to death after a jury determined the existence of aggravating circumstances. In deciding his appeal from that sentence, we rejected a claim that L.B. 1 constituted ex post facto legislation, because Ring rendered unconstitutional the death penalty statutes which were in effect at the time of the murder. Relying upon the reasoning of Dobbert v. Florida,27 we concluded that “mere procedural changes to comply with new constitutional rules do not disadvantage a defendant or impose additional punishment even if the procedures in effect when the defendant committed the offense are later declared unconstitutional.”28
Vela argues that his case is distinguishable from Gales II, Mata II, and Dobbert, because he committed first degree murder
Vela‘s factual premise is correct, but his legal conclusion is not. As we recently noted in State v. Galindo,30 the death penalty did not disappear from Nebraska law during the approximately 5-month period between the decision in Ring and the enactment of L.B. 1. Before, during, and after that period, Nebraska statutes provided that the maximum penalty for first degree murder was death.31 Before he entered the bank on the morning of September 26, 2002, the existence of those statutes gave Vela fair warning of the penalty which the State of Nebraska would seek to impose on him if he were convicted of first degree murder.32
L.B. 1 did not aggravate the crime of first degree murder or change the quantum of punishment for its commission. As we have written in Gales I, Mata I, and Galindo, L.B. 1 changed only the procedures for determining whether the death penalty is to be imposed in an individual case. L.B. 1 simply reassigned the responsibility for determining the existence of aggravating circumstances from judges to juries in order to comply with the new constitutional rule announced in Ring. We specifically held in Gales I and reaffirmed in Mata I and Galindo that the change was procedural, not substantive.33 “Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.”34
In this case, as in Dobbert, “not only was the change in the law procedural, it was ameliorative”35 both in its intent36 and operation. L.B. 1 guaranteed a defendant‘s Sixth Amendment right, recognized for the first time in Ring, to have a jury determine whether there were aggravating circumstances which would warrant imposition of the death penalty. It also specifically recognized a defendant‘s right to waive a jury determination of the alleged aggravating circumstances and have that determination made instead by a panel of three judges.37
Nor do we find merit in Vela‘s argument that L.B. 1 specifically targeted him and others involved in the Norfolk bank murders and was, therefore, ex post facto legislation. While individual senators and witnesses made references to the Norfolk bank cases during Judiciary Committee hearings on L.B. 1, the Introducer‘s Statement of Intent clearly stated that the bill was introduced to “set[] forth procedural modifications to Nebraska‘s existing statutory first degree murder sentencing process in response to the U.S. Supreme Court decision in Ring v. Arizona.”38 This legislative intent was specifically codified in § 29-2519(2)(e), which also states that it is the Legislature‘s intent that the
(b) Notice of Aggravating Circumstance (1)(a)
L.B. 1 did not alter the substantive nature of the statutory aggravating circumstances, one or more of which must be proved by the State beyond a reasonable doubt before the death penalty may be considered for a defendant found guilty of first degree murder.40 But it did establish a new procedure requiring the State to include a “notice of aggravation” in any information charging first degree murder in which the death penalty was sought:
Any information charging a violation of section 28-303 and in which the death penalty is sought shall contain a notice of aggravation which alleges one or more aggravating circumstances, as such aggravating circumstances are provided in section 29-2523.... It shall constitute sufficient notice to describe the alleged aggravating circumstances in the language provided in section 29-2523.41
Vela pled guilty to the five counts of first degree murder alleged in the third amended information, each of which included a notice of aggravation alleging six aggravating circumstances, including that specified in § 29-2523(1)(a): “[t]he offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial prior history of serious assaultive or terrorizing criminal activity.” Vela now argues that he was denied due process, because the State did not specifically allege that it intended to prove his involvement in the Lundell murder in order to establish a “substantial prior history of serious assaultive or terrorizing criminal activity.”
Our pre-Ring/L.B. 1 jurisprudence clearly held that “[t]he State is not constitutionally required to provide the defendant with notice as to which particular aggravating circumstance or circumstances the State will rely upon in pursuing the death penalty,”42 because the specific delineation of the aggravating circumstances in the statutes constitutes sufficient notice to a defendant charged with first degree murder. In State v. Palmer,43 we reaffirmed our prior holdings that notice of aggravating circumstances was not constitutionally required, because at the sentencing phase of a first degree murder trial, “the then-convicted defendant is not entitled to all of the same rights accorded one merely accused of a crime but not yet convicted.”
These decisions are squarely in line with those of other jurisdictions, including cases decided after Ring. For example, in State
Vela relies heavily upon Goodloe v. Parratt50 in support of his argument that his due process rights were violated when the State did not specifically allege his involvement in the Lundell murder as the basis for the existence of the aggravating circumstance defined by § 29-2523(1)(a). Goodloe is a federal habeas corpus case in which a defendant challenged his conviction in a Nebraska state court for operation of a motor vehicle to avoid arrest. The Eighth Circuit Court of Appeals held that the defendant‘s due process right to reasonable notice of the charge against him was violated because (1) the information did not allege the specific offense for which he allegedly fled arrest, which the court considered an essential element of the flight charge, and (2) while the defendant was initially given actual notice of the underlying offense, the prosecutor changed his theory midtrial and argued that the defendant had fled to avoid arrest for another offense, without giving prior notice to the defendant. The court reasoned that under these circumstances, the defendant “was not given fair and reasonable notice of the offense charged and the case against which he had to prepare a defense; the result was a fundamentally unfair trial that requires the conviction be set aside.”51
Goodloe does not support Vela‘s notice argument for several reasons. First, it addresses the requirement of notice in the context of the original criminal charge, not a sentence aggravator which comes into play only if the defendant is convicted of the charged offense. Also, Goodloe involved a failure to notify the defendant of an essential element of an
For completeness, we note that the comment to the NJI2d Crim. 10.1 model instruction states, without citation of authority, that “[t]he State should ... be required to specify in advance which crimes it is relying on to prove that the defendant has a substantial prior history of serious assaultive or terrorizing criminal activity.” While this may be viewed as good practice, we do not hold on the facts of this case that it was constitutionally required. And, as noted above, the prosecutor did inform Vela‘s counsel in advance that he intended to use Vela‘s involvement in the Lundell murder as proof of an aggravating circumstance.
In summary, we conclude that the district court did not err in receiving evidence of Vela‘s involvement in the Lundell murder as proof of the aggravating circumstance defined by § 29-2523(1)(a) or in denying Vela‘s motion for new trial insofar as it was based on an allegation that the State had failed to provide adequate notice with respect to this aggravating circumstance.
(c) Jury Instruction: Malice
At the close of the evidentiary phase of the aggravation hearing, the district court instructed the jury that in order to find the “substantial prior history of serious assault or terrorizing criminal activity” aggravating circumstance, it must find beyond a reasonable doubt that Vela “did in fact commit the offense of Murder in the First Degree of ... Lundel[l].” The court instructed the jury that the elements of this offense were that Vela killed Lundell, that he did so “purposely and with deliberate and premeditated malice,” and that he “did so on or after August 15, 2002, in Madison County, Nebraska.” In a separate instruction entitled “Definitions Applicable to First Degree Murder,” the court defined the terms “Deliberate,” “Premeditation,” and “Intent,” but did not define “malice.” Although Vela submitted written objections to the jury instructions, he did not object on the ground that they did not include a definition of malice, and he did not request an instruction including this definition. Vela contends on appeal that the failure of the district court to instruct the jury on the definition of malice constitutes plain error.
Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.54 In the absence of
Vela relies on State v. Myers58 in support of his contention that the failure to define “malice” in the jury instructions constituted plain error. In that case, this court held that failure to define a legal term of art used in a jury instruction can constitute plain error. Vela argues that “malice” is a legal term of art meaning “`that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse.‘”59
In the years since Myers was decided, the U.S. Supreme Court has held that even a failure to submit an entire element of a criminal offense or a sentencing factor to a jury is not structural error automatically requiring reversal, but can be subject to a harmless error analysis. In Neder v. United States,60 the Court held that “an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Then, in Washington v. Recuenco,61 the Court held that “[fjailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.” Based upon Recuenco, we recently held that the standard for determining whether failure to submit a sentencing factor to a jury constitutes harmless error is whether the record demonstrates beyond a reasonable doubt that a rational jury would have found the existence of a sentencing factor.62
Unlike Myers, in this case, the jury instructions alleged to constitute plain error were not given in the guilt phase of a murder trial, but, rather, were given after a hearing to determine the existence of aggravating circumstances which would permit the imposition of the death penalty for the five murders for which Vela had already been convicted. Thus, the issue was not whether Vela should be convicted and punished for the murder of Lundell, but, rather, whether his involvement in the Lundell murder established a “substantial prior history of serious assaultive or terrorizing criminal activity.”63 And the alleged deficiency in the jury instruction did not involve the failure to submit an entire element of the uncharged Lundell murder by which the State sought to prove the
(d) Jury Instruction: Lesser-Included Offenses
Vela argues that the district court erred in not instructing the jury on lesser-included offenses of first degree murder. He relies in part on
As we have noted, Vela was not on trial for the murder of Lundell. Vela‘s involvement in the Lundell murder was simply the evidence by which the State sought to prove aggravating circumstance § 29-2523(1)(a), a “substantial prior history of serious assaultive or terrorizing criminal activity” prior to the five murders for which he had been convicted. While lesser degrees of homicide or other offenses against the person might well establish the existence of this aggravating circumstance, in this case, the State elected to prove that Vela had committed a prior, uncharged first degree murder. Had the State not met its burden of proof for first degree murder, it would have failed to prove this aggravating circumstance.
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.65 Vela could hardly have been prejudiced by the failure of the court to give an instruction which would have effectively lightened the State‘s burden by allowing the jury to find the existence of the aggravating circumstance on the basis of “lesser” crimes than first degree murder.
(e) Jury Instruction: “Other Crime”
The State alleged the aggravating circumstance defined by § 29-2523(1)(b): “The murder was committed in an effort to conceal ... the identity of the perpetrator of such crime.” Vela contends that his due process rights were violated because in instructing the jury, the district court did not identify the “crime” for which Vela was allegedly trying to conceal the identity of the perpetrator.
Jury instructions must be read as a whole, and if they fairly present the law so that the jury could not be misled, there is no prejudicial error.66 In a preliminary instruction given at the beginning of the aggravation hearing, the district court instructed the jury as follows:
Nature of the case. This is a criminal case in which the defendant, ... Vela, has pled guilty to five counts of murder in the first degree and thereupon found guilty. You must now determine if one or more of the following aggravating circumstances are true or not true as to... Vela for each count, to wit: ....
Two, the murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of such crime.
In instruction No. 3, given at the close of the aggravation hearing, entitled “Burden of Proof,” the jury was instructed that it was to determine if one or more of the five listed aggravating circumstances “are true or not true as to ... Vela for each count of murder.” The facts necessary to establish the aggravating circumstance defined by § 29-2523(1)(a) were listed first and made specific reference to Vela‘s alleged involvement in the Lundell murder. The facts necessary to establish the aggravating circumstance defined by § 29-2523(1)(b) were listed second and included no reference to the Lundell murder. The jury completed five verdict forms, one for each count of first degree murder. Reading the jury instructions and verdicts together, we conclude that they clearly refer to the bank murders, and not to the Lundell murder, as Vela suggests in his brief. We find no merit in this assignment of error.
(f) Jury Instruction: Aiding and Abetting
During the aggravation proceeding, Vela repeatedly objected to evidence regarding the acts committed by Galindo and Sandoval. He argued that their actions could not be imputed to him for the purpose of applying the aggravating circumstances. Vela also objected to the following jury instruction given at the close of the aggravation hearing:
[Vela] can be guilty of an aggravator even though he personally did not commit the act involved in the crime so long as he aided someone else to commit it. [Vela] aided someone else if:
(1) [Vela] intentionally encouraged or intentionally helped another person to commit the aggravator; and
(2) [Vela] intended that an aggravator be committed; or [Vela] knew that the other person intended to commit, expected the other person to commit the aggravator; and
(3) the aggravator in fact was committed by that other person.
Although Vela concedes that an aiding and abetting theory could properly be used to prove the aggravating circumstance involving the Lundell murder, he argues that its use with respect to the other aggravating circumstances which involved the bank murders deprived him of individualized consideration for the death penalty and therefore violated his rights under the 8th and 14th Amendments to the U.S. Constitution; article I, § 9, of the Nebraska Constitution; and § 29-2523.
The only authority cited by Vela in support of this argument is Lockett v. Ohio.67 In that case, the U.S. Supreme Court addressed the concept of individualized consideration for the death penalty in the context of mitigating circumstances. The Court held that “in all but the rarest kind of capital case,” the 8th and 14th Amendments require that the sentencer “not be precluded from considering, as a mitigating factor, any aspect of a defendant‘s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than
Two U.S. Supreme Court cases decided subsequent to Lockett bear more directly on this issue. In Enmund v. Florida,70 the defendant had driven the getaway car from the scene of a robbery gone awry, in which two persons were killed. He was convicted of felony murder and sentenced to death. The question addressed by the Supreme Court was “whether death is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took life, attempted to take life, nor intended to take life.”71 The Court noted that the focus in imposing the death penalty must be on the defendant‘s culpability, “not on that of those who committed the robbery and shot the victims, for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence.‘”72 The Court remanded the cause for further proceedings to determine whether the defendant “intended or contemplated that life would be taken.”73
The Enmund holding was expanded in Tison v. Arizona.74 In that case, the defendants had participated in a prison breakout and a kidnapping. The codefendants had brutally murdered the kidnapped family. The question addressed by the Court was whether the defendants, after being convicted of felony murder, could be constitutionally sentenced to death under the Eighth Amendment based on their conduct “leading up to and following” the murders.75 Under a sentencing scheme substantially similar to Nebraska‘s, the sentencing judge found statutory aggravators, including that the murders were committed for pecuniary gain and were especially heinous. The sentencing judge specifically found that the statutory mitigator of relatively minor participation was not met. Noting that the defendants’ conduct was more directly linked to the murders than was that of the getaway driver in Enmund, the Court held:
[R]eckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.76
Thus, the Court held that the culpability requirement of Enmund is satisfied where
Relying on the reasoning of Tison, the Supreme Court of Connecticut concluded in State v. Peeler78 that the Eighth Amendment does not forbid the use of accessorial liability to prove aggravating factors which are a prerequisite to the imposition of the death penalty. The court wrote that “[b]y explicitly recognizing the trial court‘s finding of aggravating factors established through principles of accessorial liability, and thereafter concluding that an accessory could be sentenced to death, the Supreme Court in Tison implicitly concluded that the [E]ighth [A]mendment permitted the use of accessorial liability to prove aggravating factors.”79 The Peeler court also noted that “we can conceive of no reason why a statutory scheme that requires a jury to evaluate aggravating factors need face a more stringent requirement under the [E]ighth [A]mendment when principles of accessorial liability are being used to prove those aggravating factors rather than the commission of the crime itself.”80 The court concluded that any Eighth Amendment concern was sufficiently addressed by the sentencing body‘s ability to give effect to mitigating circumstances, which presumably included minimal participation in the crime.
Tennessee and Oklahoma courts have reached similar conclusions. The Tennessee case81 involved a woman who hired another to kill her husband. The husband was brutally murdered with a tire iron. She argued that the exceptionally heinous nature of the crime could not be imputed to her as an aggravator, as she had no involvement in the actual act and did not dictate the method of the killing. The court noted that the Enmund-Tison holdings addressed only whether a nontriggerman could be sentenced to death and did not expressly address whether the conduct of a triggerman could be used to aggravate the sentence of the nontriggerman. Examining the plain language of the Tennessee aggravation statute, the court concluded that the language of the aggravator related to the heinous nature of the murder itself, not the defendant‘s action, and thus applied to the defendant. In affirming the death sentence, the court implicitly held that the Eighth Amendment did not prohibit the use of vicarious criminal liability principles in proving the existence of aggravating circumstances. Similarly, the Court of Criminal Appeals of Oklahoma has held, “If criminal liability can attach for a codefendant‘s act that a defendant has aided and abetted, liability for an aggravating circumstance can also attach for a codefendant‘s act that a defendant has aided and abetted.”82
Under Nebraska law, “[a] person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender.”83 Aiding and abetting requires some participation in a criminal act and must be evidenced by some word,
(g) Motion for Discovery
Vela assigns error in the denial of his motion to take the depositions of various individuals purportedly involved in a federal criminal investigation, including two witnesses who testified at his aggravation hearing. Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or a court rule.88 Section 29-1917(1) provides that except under circumstances not pertinent to this case, “the prosecuting attorney or the defendant may request the court to allow the taking of a deposition of any person other than the defendant who may be a witness in the trial of the offense.” Section 29-1917(1) further provides that the court “may order the taking of the deposition when it finds the testimony of the witness: (a) [m]ay be material or relevant to the issue to be determined at the trial of the offense; or (b) [m]ay be of assistance to the parties in the preparation of their respective cases.” A criminal defendant is not entitled, as a matter of right, to a deposition pursuant to this statute.89 The party seeking the deposition “must make a factual showing to the court that the deponent‘s testimony alternatively satisfies the statutory conditions.”90 If the requisite showing is made, a deposition taken pursuant to this statute “may be used at the trial by any party solely for the purpose of contradicting or impeaching the testimony of the deponent as a witness.”91
We agree with the district court that Vela did not make the factual showing required by § 29-1917. In addition, Vela‘s motion to take depositions was filed long after the aggravation hearing had been concluded. Thus, depositions of the two persons who had testified at the aggravation hearing could not have been used to contradict or impeach their testimony, because that testimony was long concluded
III. MENTAL RETARDATION PROCEEDINGS
1. BACKGROUND
(a) Legal Context
In 1989, the U.S. Supreme Court held in Penry v. Lynaugh92 that while mental retardation was a factor which may lessen a defendant‘s culpability for a capital offense, the execution of persons with mental retardation was not categorically precluded by the Eighth Amendment‘s prohibition of cruel and unusual punishment. Thirteen years later, in Atkins v. Virginia,93 the Court abrogated its prior holding. It concluded that on the basis of “`evolving standards of decency,‘” the Eighth Amendment prohibited the execution of persons with mental retardation.94 In reaching this conclusion, the Court specifically noted that in the 13-year period since its Penry decision, several states, including Nebraska, had adopted legislation prohibiting the execution of persons with mental retardation.
The Nebraska legislation enacted in 1998 provides: “Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person with mental retardation.”95 The statute further provides that as used therein, “mental retardation means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior. An intelligence quotient of seventy or below on a reliably administered intelligence quotient test shall be presumptive evidence of mental retardation.”96 After a finding that aggravating circumstances exist, a defendant may file a verified motion requesting a ruling that the death penalty be precluded because of mental retardation.97 The court is then required to conduct an evidentiary hearing, and if it finds “by a preponderance of the evidence, that the defendant is a person with mental retardation, the death sentence shall not be imposed.”98
(b) Motions
After the jury returned its verdict finding the existence of five aggravating circumstances on each count of first degree murder and the court denied Vela‘s motion to declare electrocution to be an unconstitutional method of execution, Vela filed a verified motion and an amended motion to preclude imposition of the death sentence on the ground that he was a person with mental retardation. In response, the State filed a motion to require Vela to submit to an evaluation and testing by the State‘s expert for the purpose of addressing issues raised by his allegation that he is a person with mental retardation. Vela objected to the motion on the ground that
After the aggravation hearing but before Vela filed his motion to preclude imposition of the death penalty on the ground of mental retardation, the prosecutor filed a motion seeking access to confidential records pertaining to Vela which were in the possession of the Nebraska Department of Correctional Services. The motion was filed pursuant to
Approximately 1 year later, the prosecutor filed a second motion to obtain prison records pursuant to
(c) Mental Retardation Hearing
We are aware that a social stigma exists with respect to the phrase “mental retardation.” Expert testimony in the record before us acknowledged this, but further established that it remains an appropriate and professionally accepted designation of a specific clinical diagnosis. We use the phrase in this clinical sense.
There are two generally accepted “clinical models” for mental retardation. One is stated in a reference entitled “Diagnostic and Statistical Manual of Mental Disorders,” published by the American Psychiatric
At the mental retardation hearing, Vela‘s counsel offered into evidence the 4th edition of the DSM-IV-TR and the 10th edition of the AAMR “for the legal purposes of statutory interpretation.” Vela‘s counsel noted that § 28-105.01 utilized “definitions of mental retardation that do not have ordinary, common meaning. They are vague, ambiguous in that way.” The court received both volumes in evidence.
The DSM-IV-TR lists the diagnostic criteria for mental retardation as “[s]ignificantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test” and “[c]oncurrent deficits or impairments in present adaptive functioning” in at least two of the areas of “communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.”101 Adaptive functioning is defined by the DSM-IV-TR as “the person‘s effectiveness in meeting the standards expected for his or her age by his or her cultural group.”102 The DSM-IV-TR also requires the onset of both prongs of mental retardation before 18 years of age. The AAMR defines mental retardation in substantially the same manner. According to its publication, mental retardation is “a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18.”103
Two common tests for measuring intelligence quotient (IQ) are the Wechsler Adult Intelligence Scale, third edition, for adults (WAIS-III) and the Stanford-Binet. While both are generally accepted as reliable for assessing IQ, the WAIS-III is used more frequently. In addition, Wechsler‘s Abbreviated Scale of Intelligence (WASI) is a generally accepted screening instrument for intelligence, but it is not accepted as a comprehensive evaluation of intelligence. The WASI is capable of determining whether or not there is a probability that a person has mental retardation, but it is not used to determine the degree or classification of mental retardation.
Three IQ tests were administered to Vela at the request of his counsel. James Cole, Ph.D., a clinical forensic psychologist, administered the WASI on July 13, 2003, for the purpose of determining “[w]hether or not there was any probability” that Vela was a person with mental retardation. On the WASI, Vela had a full-scale IQ score of 87, with a confidence interval of 84 to 91. His performance IQ score was 95, with a confidence interval of 90 to 100; and his verbal IQ score was 82, with a confidence interval of 78 to 87. Based on these results, Cole testified that he could conclude with a high degree of psychological certainty that Vela‘s IQ was not less than 75 and that he was not a
The second IQ test was administered by psychologist Anne Jocelyn Ritchie, Ph.D. and J.D., at the request of Vela‘s counsel. Ritchie evaluated Vela on November 14 and December 7, 2003, and administered the WAIS-III. Vela obtained a verbal score of 75, with a confidence level of 71 to 81; a performance score of 78, with a confidence level of 73 to 86; and a full-scale IQ score of 75, with a confidence level of 71 to 80, meaning that with 95-percent confidence, Vela‘s full-scale IQ fell between 71 and 80. Ritchie was not able to administer one subtest of the WAIS-III because Vela could not reliably sequence the alphabet, but she testified that otherwise, the test was administered according to the publisher‘s protocol. Prior to administering the WAIS-III, Ritchie administered symptom validity tests to Vela. These tests generally measure whether the subject is putting forth his or her best effort on the test. Based upon these tests and her administration of the WAIS-III, Ritchie did not regard Vela‘s effort on the test as inadequate.
Ritchie testified that Vela‘s full-scale score of 75 on the WAIS-III was an accurate measure of his intellectual functioning on the day the test was given. She agreed that mental retardation could be diagnosed in a person with an IQ as high as 75 if there were sufficient limitations in adaptive behavior, but she was not requested by Vela‘s counsel to conduct tests for adaptive behavior deficits and did not do so.
Wayne C. Piersel, Ph.D., a psychologist trained in school psychology, was retained by Vela‘s counsel for the purpose of determining whether or not Vela was a person with mental retardation. Piersel examined Vela on July 9 and 10, 2004. Prior to the examination, Piersel was provided with copies of Cole‘s evaluation, Ritchie‘s evaluation, Vela‘s school transcripts, and reports of interviews of persons who were acquainted with Vela. Piersel administered the fifth edition of the Stanford-Binet IQ test. Vela attained a score of 56 on the verbal portion of the test, a score of 79 on the nonverbal portion, and a full-scale score of 66. Piersel testified that there are no symptom validity tests designed for the purpose of detecting malingering on an IQ test. He stated that nothing in the AAMR, the DSM-IV-TR, the Stanford-Binet, the WASI, or the WAIS-III requires symptom validity testing. Piersel noted, however, that he had no reason to suspect that Vela was not cooperating or giving his best effort.
Piersel administered other tests to Vela, including the “Vineland Adaptive Behavior Scales,” which the clinical models consider an appropriate test for measuring a subject‘s adaptive behaviors. Piersel used Vela‘s older sister as his “informant” for this test. Based on the information Vela‘s sister provided, Piersel opined that Vela had significant impairment in the adaptive behavior areas of communication, home living, social/interpersonal skills, self-direction, and functional academic skills. It was Piersel‘s opinion to a reasonable degree of certainty that Vela was a person with mild mental retardation.
Piersel further acknowledged the significance of the variance between Vela‘s score of 56 on the verbal portion of the Stanford-Binet and his score of 79 on the nonverbal portion, and he agreed that there was only a “one in a thousand” chance that such a variance could occur randomly. The publisher‘s manual for the Stanford-Binet states that when a significant variance between the two scores occurs, “`examiners should be cautious‘” of using the full-scale score to measure IQ and that where the “`examinee‘s background is influenced by factors such as communication disorders, learning disabilities, autism or non-English background, the [nonverbal score] may be the better indicator of global cognitive potential.‘” The manual further states that users of the Stanford-Binet should be “`cautious in interpreting low full-scale IQ scores that may reflect conditions other than low intellectual ability. Low scores may be due to cultural and language differences, high anxiety or depression, extreme distractibility, or refusal to relate to the examiner and testing situation.‘” Nevertheless, Piersel insisted that Vela‘s full-scale score of 66 on the Stanford-Binet was a “representative score.”
Chad Buckendahl, Ph.D., an expert in psychometrics, testified for the State. He explained that psychometrics is the integration of cognitive measurement and statistics and involves the interpretation of test scores and ensuring the validity of such interpretations. He explained two concepts used in psychometrics: “standard error of measurement” and “standard error of estimate.” The standard error of measurement is used in comparing an individual‘s scores on the same test. The standard error of estimate is used when comparing an individual‘s score on one test to the same individual‘s score on another test.
The manuals for the administration of the Stanford-Binet and the WAIS-III tests contain the relevant standard errors of measurement and estimate calculations. Based on these calculations, Buckendahl testified that the statistical probability of Vela‘s scoring an 87 on the WASI but having his true score be 70 or below is about 1 in 500 million. Buckendahl acknowledged, however, that the WASI is a screening instrument which is not intended for use as a substitute for more comprehensive measures of intelligence, such as the WAIS-III. But with respect to Vela‘s full-scale score of 75 on the WAIS-III, Buckendahl opined that on the basis of the published calculations, there is only a 1.7 percent chance that Vela‘s true full-scale score could be 70 or lower. Buckendahl further testified that Vela‘s verbal test results generally declined from the first test administration to the most recent test administration, a phenomenon which he viewed as “unlikely.” Vela‘s nonverbal scores, however, showed an initial slight decline and then remained fairly stable above 70.
Leland Zlomke, Ph.D., a clinical psychologist with specialized training in forensic psychology, also testified for the State. He had been requested by the State to conduct an evaluation of Vela in mid-2004,
Zlomke met with Vela and Vela‘s attorneys on two occasions. The attorneys denied Zlomke‘s request to administer a test designed to measure adaptive behavior. Zlomke testified that the WASI administered by Cole was an appropriate screening assessment for mental retardation and testified that based on Vela‘s full-scale score of 87 on the WASI, it would be “extremely unlikely, if not virtually impossible, for ... another score without confounding variables to fall below 75 or 70 to 75.” Zlomke identified malingering as one form of a “confounding variable.”
Zlomke deemed significant the variance between Vela‘s scores on the verbal and nonverbal portions of the Stanford-Binet, as well as the variances between the Stanford-Binet scores and Vela‘s previous IQ test scores. In his opinion, the differences between Vela‘s scores on the WASI, the WAIS-III, and the Stanford-Binet “far exceed” clinical expectations and required a determination of confounding variables which could account for the variances. Zlomke was able to rule out medical incidents or injury and drug use as possible confounding variables.
Zlomke also considered malingering as a potential confounding variable which could explain the variance in Vela‘s test scores. He testified that the DSM-IV-TR lists four diagnostic predicates to consider when determining if malingering exists in a testing situation. These include a medicolegal context of presentation, a marked discrepancy between the person‘s claimed stress or disability and the objective findings, a lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen, and the presence of antisocial personality disorder. Zlomke testified that with a reasonable degree of certainty, he found all four predicates were met with respect to Vela. Zlomke further opined that Vela did not meet the criteria for mental retardation and that it is a “virtual certainty” that Vela‘s IQ is greater than 75.
Ari Kalechstein, Ph.D., a neuropsychologist with forensic experience, also testified as a witness for the State. In preparation for his testimony, he reviewed the reports of Cole, Ritchie, and Piersel, as well as other materials, including police reports. Kalechstein also was present to hear the testimony of witnesses who preceded him at the mental retardation hearing. Kalechstein was asked by the State to determine whether Vela was a person with mental retardation and to provide an explanation for the variances in Vela‘s IQ test scores.
Kalechstein testified that clinicians generally utilize criteria published in DSM-IV-TR in diagnosing mental retardation. In the process of conducting a differential diagnosis, he concluded that there was only a 1-in-500 chance that the downward shift in Vela‘s IQ scores in the tests administered by Cole, Ritchie, and Piersel occurred by chance. In his opinion, the decline in IQ scores was caused by either malingering, a learning disability, or depression. Kalechstein opined that Piersel did not adequately consider the issue of
Both parties submitted evidence related to Vela‘s adaptive behaviors. Vela‘s father and sister testified that he was developmentally delayed in many activities. Vela‘s mother left the family home when he was approximately 2 years old, and his older sister raised him as though he were her son. Vela needed assistance bathing until he was approximately 10 years old. He needed help dressing until after age 12, and was older than 12 before he could tie his own shoes. He learned to ride a bike at age 10, and he never learned to tell time. Vela never learned to drive a car, never had a checking or savings account, and never learned to budget money. As a teenager, he could not buy his own clothes or food, and had no chores in the household because he was incapable of performing them.
Vela attended public schools in California. He was walked to elementary school every day. In the 10th grade, he was able to take a bus to high school, but otherwise never used public transportation. One of Vela‘s elementary school teachers testified that he was “special,” “very sweet,” and “needy.” His academic performance was very low compared to other students, and even in fourth grade, he continued to have incontinence issues at school. His elementary school teachers gave him extra help and modified his work, as he could not do the work expected of his classmates. One teacher described him as obedient, “always smiling,” and “a follower.” He did not interact with other children and had no friends.
While attending public schools, Vela received services under a California special education program known as the resource special program (RSP). Silvia DeRuvo, a special education resource specialist and president of the “California Association of Resource Specialists and Special Education Teachers,” testified that RSP is the first level of special education in California and involves less than 50 percent of a student‘s class time. DeRuvo described the assessment process, including IQ testing, by which students are placed in RSP. Students who are determined to have a learning disability are eligible for RSP. DeRuvo defined a learning disability as an average IQ of 89 to 110, accompanied by a discrepancy between ability and achievement. DeRuvo testified that special education assessment records are destroyed after 5 years, so the records pertaining to Vela‘s periodic assessments were no longer in existence. However, from other available school records, DeRuvo determined that Vela had had several assessments and was found to have a learning disability. Accordingly, he received RSP services in several subjects at various times during his school attendance, beginning in the sixth or seventh grade. DeRuvo testified that it is the practice of California public schools to provide students with the level of support and learning opportunity which is appropriate for their individual needs and that RSP would not provide sufficient support for a child with mental retardation.
Piersel tested Vela for adaptive behavior issues based on information he received from Vela‘s sister. The Vineland Adaptive Behavior Scales test performed by Piersel indicated that Vela had limitations in adaptive behavior in the areas of communication, home living, social/interpersonal
The State presented evidence of Vela‘s ability to adapt to procedures and conditions within the prison system.
(d) Order
In an order filed on May 3, 2006, the district court overruled Vela‘s motion to preclude imposition of the death penalty because of mental retardation. The court found that Vela failed to prove that Piersel reliably administered the test which resulted in a full-scale IQ of 66, and it thus concluded that Vela was not entitled to the statutory presumption of mental retardation. The district court found that Vela‘s score of 75 on the WAIS-III, considered in light of the standard error of measurement, could be considered as subaverage general intellectual functioning for purposes of diagnosing mental retardation. However, it found that the evidence did not establish at least two significant limitations in adaptive behavior by a preponderance of the evidence. The district court thus concluded that Vela was not a person with mental retardation. This court dismissed Vela‘s interlocutory appeal, based upon our determination that the disposition of Vela‘s motion to preclude the death penalty was not a final, appealable order.104
2. ASSIGNMENTS OF ERROR
Vela assigns, restated and renumbered in part, that the district court erred in the following:
1. Granting the State‘s motion to obtain Vela‘s medical and psychological records maintained by the Nebraska Department of Correctional Services and by allowing testimony based upon such records.
2. Granting the State‘s motion for an independent evaluation and testing and by receiving testimony and evidence derived from such evaluation and testing, in violation of the 5th and 14th Amendments to the U.S. Constitution and article I, § 12, of the Nebraska Constitution.
3. Finding that Vela failed by a preponderance of the evidence to establish that the full-scale IQ score of 66 obtained on the Stanford-Binet test administered by Piersel was not entitled to the statutory presumption of mental retardation.
4. Not basing its finding that Vela had significant subaverage general intellectual functioning at least in part on the Stanford-Binet test administered by Piersel.
5. Requiring Vela to prove he had significant limitations in adaptive functioning rather than deficits in adaptive behavior, in violation of
6. Failing to find that Vela had deficits in adaptive behavior.
7. Finding that the imposition of the death penalty was not precluded because of mental retardation, in violation of
3. STANDARD OF REVIEW
Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.106
In making the determination as to factual questions, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.107
The trial court has broad discretion in granting discovery requests and errs only when it abuses its discretion.108
4. ANALYSIS AND RESOLUTION
(a) Access to Department of Correctional Services’ Records
Vela argues that the district court erred in initially granting, without limitation, the prosecutor‘s motion for access to his medical file maintained by the Nebraska Department of Correctional Services. His two-pronged argument is (1) that no statute permits this form of discovery in a criminal action and (2) that such records are privileged pursuant to
Vela bases the first prong of his argument on State v. Kinney,109 where we recognized that discovery in a criminal case is generally controlled by either a statute or court rule and that “`[i]n Nebraska, the prosecution has not been granted a right of discovery except as permitted by the court, with limitations clearly defined by statute.‘” We held in Kinney that based upon these principles, the trial court erred in requiring a defendant to produce his trial exhibits and disclose his potential out-of-state witnesses to the State before trial.
The discovery issue arises in this case in a markedly different context. Vela‘s guilt had been determined by the acceptance of his guilty pleas, and the only remaining issue was whether he would be sentenced to life imprisonment or death for his crimes. That determination depended in part upon the resolution of Vela‘s assertion that he was a person with mental retardation and therefore could not be executed pursuant to
Contrary to Vela‘s claim, his medical and mental health records maintained by the Department of Correctional Services
The State‘s motion for access to medical and psychological records maintained by the Department of Correctional Services was filed pursuant to
(b) Independent Evaluation
Vela correctly notes that there is no specific statutory authority for the independent medical examination ordered by the district court and conducted by Zlomke. The question before us is whether the district court erred in concluding that it had inherent discretionary authority to order the examination. In reaching its conclusion, the district court reasoned by analogy from our opinion in State v. Simants,116 in which we held that a district court had inherent authority to grant the State‘s motion for an independent medical evaluation of a person who had been found not guilty by reason of insanity on six counts of first degree murder. The State requested the examination in preparation for an annual review to determine whether continued confinement was warranted. The applicable statute117 specified that the court was to conduct an evidentiary hearing as a part of the review but did not specifically authorize an independent medical evaluation at the request of the State. We concluded that “[t]he means for determining the acquittee‘s sanity, as in determining a defendant‘s competency to stand trial, should be discretionary with the court.”118 We reasoned in part that because the statute contemplated an evidentiary hearing on the question of the acquittee‘s mental status, the record should not be limited to the evidence offered on behalf of the acquittee and “[t]he State should be allowed to submit additional evidence
As stated in Ake v. Oklahoma, 470 U.S. 68, 81, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985): “Psychiatry is not ... an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness.” If necessary, the factfinder must resolve differences in opinion within the psychiatric profession on the basis of all the evidence offered by each party.120
Vela argues that Simants is inapposite because it involved a civil commitment proceeding in which the primary concern was protection of the public. He contends that State v. Woods121 provides a closer analogy. In that case, we held that the district court lacked authority to order a defendant to make a pretrial disclosure of her alibi witnesses because Nebraska‘s noticeof-alibi statute122 did not impose this requirement. Because Woods involved a question of pretrial discovery in a noncapital case, we do not find it to be controlling on the issue presented here.
Other jurisdictions have recognized the inherent authority of a trial court to order an independent examination at the request of the government when a defendant in capital sentencing proceedings has placed his or her mental health at issue. For example, in State v. Reid,123 the Supreme Court of Tennessee held that such authority existed even in the absence of a specific statute or rule, because an independent psychiatric examination was essential to afford the State the right to rebut expert psychiatric evidence offered by the defendant as a mitigating factor to be weighed against imposition of the death penalty. Arizona courts have held that “`once a defendant notifies the state that he intends to place his mental condition at issue during the penalty phase of a capital trial, a trial judge has discretion to order the defendant to submit to a mental examination by an expert chosen by the state or the court.‘”124 In U.S. v. Allen,125 the Eighth Circuit Court of Appeals stated:
There is no doubt that a district court has the authority to order a defendant who states that he will use evidence from his own psychiatric examination in the penalty phase of a trial to undergo a psychiatric examination by a government-selected psychiatrist before the start of the penalty phase.
We have found only one case, People v. Lee,126 which holds that a trial court may not order an independent evaluation in these circumstances in the absence of specific authority conferred by statute or court rule.
We extend the reasoning of Simants to the issue before us here and hold that when a defendant files a verified motion to preclude imposition of the death
Moreover, the State‘s interest in an independent evaluation goes beyond the adversarial testing of a capital defendant‘s claim of mental retardation. Under the unequivocal language of
Relying upon Estelle v. Smith,128 Vela argues that the independent examination ordered by the district court violated his privilege against compulsory self-incrimination guaranteed by the federal and state Constitutions. In Estelle, the U.S. Supreme Court held that “[a] criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him in a capital sentencing proceeding.”129 However, this court and others have indicated that when a criminal defendant places his or her mental condition at issue, the State may use the results of a court-ordered evaluation at trial without violating the defendant‘s constitutional privilege against self-incrimination.130 Vela‘s constitutional claim is without merit.
For these reasons, we conclude that the district court did not err in granting the State‘s motion for an independent evaluation of Vela and in receiving the testimony of Zlomke with respect to that examination at the mental retardation hearing.
The district court found that the Stanford-Binet score of 66 was not obtained on a reliably administered test for three reasons. First, it concluded that the statistical probability of Vela‘s validly obtaining the score after the scores he obtained on the prior IQ tests was “remote.” The testimony of multiple experts supports this finding. Second, the court concluded that Piersel did not address the issue of malingering in a meaningful manner. Again, substantial evidence supports this, as at least two experts testified to the evidence of malingering and Piersel‘s ineffective evaluation of this issue. Third, the court concluded that Piersel failed to follow the published Stanford-Binet protocol, because he reported the full-scale score even though there was significant variation between the verbal and nonverbal scores. Again, several experts testified that this was not proper protocol. Overall, there is substantial evidence in the record to support the district court‘s finding that the Stanford-Binet score of 66 was not obtained on a “reliably administered” test, and there is no clear error in the court‘s finding on this issue.
(d) Finding That Vela Is Not Person With Mental Retardation
Vela argues that the district court erred in finding that because he is not a person with mental retardation, the death penalty is not precluded. He contends that this finding violates both his statutory rights under
(i) Intellectual Functioning
Both
Both parties take issue with the court‘s reasoning on this point. Vela argues that the court also should have taken into account his score on the Stanford-Binet in reaching this conclusion. But as we have noted, the record supports the finding of the district court that the Stanford-Binet was not reliably administered.
The State argues that although the district court properly “relied upon an unchallenged IQ score of 75, which is the
(ii) Adaptive Behavior
The second component of Nebraska‘s statutory definition of mental retardation in the context of capital sentencing is “deficits in adaptive behavior” which exist concurrently with the significantly subaverage intellectual functioning.134 The clinical models use similar but not identical definitional language when referencing this component of the test. The AAMR states: “Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.”135 The DSM-IV-TR states:
The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B).136
For completeness, we note that both clinical models include as a third component that onset must occur before the age of 18. This component is not included in Nebraska‘s statutory definition.137 Piersel testified that trauma to the head can produce symptoms of mental retardation and that if the injury occurs before the age of 18, a diagnosis of mental retardation is appropriate. However, if the individual is older than 18 when the injury occurs, the condition would not be diagnosed as mental retardation, but, rather, “in terms of some organic damage to [the] central nervous system.”
The district court concluded that Vela “did not by [a] preponderance of the evidence establish at least two significant limitations in adaptive functioning as set out in Criterion B of the definition of mental retardation as found in [the DSM-IV-TR].” Vela argues that
This argument stands in sharp contrast to Vela‘s position with respect to the clinical models at the mental retardation hearing. In offering the AAMR in evidence and arguing for its admissibility, Vela‘s counsel argued that it was a “learned treatise” which he would refer to in the examination of his expert witnesses. Counsel continued:
But another reason why I want to offer [the AAMR] is because you, and perhaps our appellate courts, are going to have to interpret our statutes. There are terms of art in our statutes, [§] 28-105.01, with regard to the definitions of mental retardation that do not have ordinary, common meaning. They are vague, ambiguous in that way. I think in order for you, and perhaps an appellate court, to understand and interpret the statutes, you need authority to do that. ... [The AAMR] is dedicated to the definitions, classifications of mental retardation. So I want you to have [the AAMR] for that purpose.
Shortly thereafter, counsel stated that he was offering the DSM-IV-TR and the AAMR “to the court for the legal purposes of statutory interpretation.” Both volumes were received in evidence. In his closing argument, counsel stated that because the “two elements” of mental retardation were not defined by
In its order, the district court determined that the phrases “`subaverage intellectual functioning‘” and “`limitations in adaptive behavior‘” used in
Mental retardation is a clinical diagnosis. The U.S. Supreme Court noted in Atkins v. Virginia140 that while definitions of mental retardation in state laws prohibiting the execution of mentally retarded persons are not identical, they generally conform to the clinical definitions set forth in the DSM-IV-TR and the AAMR. The Nebraska statute uses but does not define two key diagnostic criteria of mental retardation: “significantly subaverage general intellectual functioning” and “deficits in adaptive behavior.”141 To understand what these terms mean, how they are measured, and how they are to be considered in diagnosing mental retardation, clinical expertise is not only helpful, but essential. Supplied with nothing more than the language of the statute, it would be impossible for a lay finder of fact to reach any meaningful determination of whether a convicted defendant with an IQ in the low 70‘s is a person with mental retardation.
Vela presented the clinical models and the expert testimony of Piersel to help the fact finder in this case. Piersel testified that the DSM-IV-TR was a generally accepted model of the definitions and diagnostic criteria for mental disorders, including
Vela now argues that under
When considering a statute‘s meaning, it is appropriate for a court to consider the evil and mischief attempted to be remedied, the objects sought to be accomplished, and the scope of the remedy to which its terms apply and to give the statute such an interpretation as appears best calculated to effectuate the design of the legislative provisions.145 As we noted in Vela‘s prior appeal, both
The district court‘s finding that Vela failed to prove significant deficits in adaptive behavior is supported by substantial evidence. The Vineland Adaptive Behavior Scales test administered by Piersel was based on information Piersel received from Vela‘s sister. Although the results showed deficits in five adaptive behaviors, the accuracy of the information provided by Vela‘s sister was significantly challenged during the cross-examination of Piersel, and he acknowledged the possibility that the sister‘s reliability as a reporter could be affected because she had the same motivation for secondary gain as Vela himself. Zlomke administered a modified adaptive behavior test based on interviews with Vela‘s acquaintances and concluded that Vela fell within the average range of adaptive functioning.
In addition to the conflicting results from the adaptive behavior tests, there was also evidence that Vela had demonstrated normal adaptive behavior in several areas. Vela‘s middle school records reflect mostly grades of C, with A‘s and B‘s in some subjects and D‘s and F‘s in others. Testimony established that he was thought to have a learning disability and received special education services for that diagnosis, but he was never placed in an academic program designed for students with mental retardation.
There was evidence that Vela had been employed by a trucker to assist in finding addresses for pickups and deliveries, and that while so employed, he was well-liked, responsive, hard-working, friendly, and talkative. While so employed, Vela was responsible in part for planning the routes and the order of deliveries or pickups, and when problems occurred, he would communicate with the trucking company‘s dispatcher to get an address correction or additional instructions.
Correctional employees testified regarding Vela‘s behaviors in prison. Vela selected books from the prison book cart and subscribed to other publications. He followed football and subscribed to a boxing magazine. He kept his living area clean and communicated clearly with correctional officers and other prisoners. A case manager testified that Vela submitted numerous written communications, known as kites, to prison officials, requesting such services as haircuts, library privileges, law library visits, and telephone calls. The case manager testified that for a brief period, Vela stopped communicating through kites on the advice of his lawyers and that in one of the conversations she had had with Vela, he told her that “he wasn‘t the smartest or the quickest, but he wasn‘t mentally retarded.” Another correctional officer testified that he heard Vela say that he wanted to be labeled as mentally retarded “so he could be with his family for a long time.”
The district court did not err in concluding that Vela failed to prove clinically significant deficits in adaptive behavior which would support a diagnosis of mental retardation.
IV. SENTENCING PROCEEDINGS
1. BACKGROUND
After the jury returned its verdict finding the existence of aggravating circumstances and before filing his motion to preclude the death penalty on the ground of mental retardation, Vela filed a motion to declare electrocution as a means of execution
After the district court denied Vela‘s motion to preclude imposition of the death penalty on the ground of mental retardation, a panel of three district judges designated by this court pursuant to
(a) Vela‘s Evidence
Vela was born in California on October 10, 1980, the youngest of three children. He grew up in a neighborhood where violent crime, gang activity, and drug trafficking were commonplace. Vela‘s mother left the family home when he was approximately 2 years old. As a child, Vela was cared for by his father but primarily by his sister, the oldest of the three children. When Vela‘s mother left the home, an uncle who was a drug dealer came to live with the family. When Vela was a teenager, he reestablished communication with his mother.
Vela‘s sister was approximately 7 years old when her mother left the home. When she was 14, she moved out of the family home to a residence about two blocks away, but she maintained daily contact with her family, including Vela. Later, Vela‘s sister moved back to the family home with a man she later married. On two occasions during his teenage years, Vela lived in Mexico, first with his grandparents and later with his sister and her family.
Vela left school during the ninth grade and did not receive any further education. For approximately 3 years, he worked as a trucker‘s helper, as noted above. When Vela was in his late teens, his sister learned that he was drinking alcohol and using drugs. Concerned by this, Vela‘s sister decided that he should move to Madison, Nebraska, to live with his father, who had recently moved there from California to take a job at a meat-packing plant. Vela arrived in Madison in July 2002.
Family members described Vela as a “good kid” and as a simple, nonviolent person with a childlike personality. One described him as a “big, little kid.” Family members stated that Vela was quiet and respectful, but that he was a “follower” who was always looking for approval and was easily influenced by others. Family members stated that the bank murders were completely inconsistent with Vela‘s character and personality. Two persons who worked with Vela in California gave similar statements.
There was evidence that Vela had been beaten by Sandoval and others after he had disclosed plans to rob the bank to another person. Vela offered and the court received an affidavit and deposition of Galindo, who stated that he became acquainted with Vela in the summer of 2002 and introduced him to Sandoval, Rodriguez, and others. In the affidavit, Galindo stated that Vela was “slow” and “a follower” and that he always did what others told him to do. Galindo stated that it was Sandoval‘s idea to rob the bank and that Galindo asked Vela to participate. He stated that Vela was scared and did not want to rob the bank but that Sandoval told him he was obligated.
The court also received portions of statements and testimony given by Sandoval in which he described Vela‘s involvement in the crimes in a similar fashion. Sandoval was described by one of his former teachers and a former school principal as a student with a “charismatic personality” who “always had a following” and was a “natural-born leader.”
After his arrest for the bank murders, Vela told members of his family to
Vela reoffered and the court received certain evidence which had been received during the mental retardation hearing. He also offered certified copies of sentencing orders in two unrelated first degree murder cases from another district court, in support of his argument that the notice of aggravating circumstances in his case was inadequate and for the purposes of proportionality review. The presiding judge sustained the State‘s relevance objections to both exhibits.
(b) State‘s Evidence
(i) Rebuttal
The State presented evidence to rebut Vela‘s mitigation evidence. This included affidavits from several correctional officers who had observed Vela during his incarceration. They stated that Vela was able to communicate clearly, that he did not appear to be a follower, and that he was fully capable of making his own decisions. One described him as “out spoken” and “able to influence other inmates.” Another described him as “a very good manipulator.” A case manager at the Lincoln Correctional Center who for a period of time had daily contact with Vela stated that based upon her observations, “while I do not feel that he is a leader, nor do I think that he is a blind follower. I do not see him as being conscripted into making decisions. I have never seen him taken advantage of.”
The State presented letters which Vela had written from prison. In a letter to a female friend, he mentioned that when he was 12 years old, he and his 15-year-old brother were involved with a gang in California. There was evidence that while in custody following his arrest for the bank murders, Vela asked a cellmate to tattoo a five-pointed crown on his left breast, and the cellmate did so with a staple, a pencil, and ink. Sandoval and Galindo also had five-pointed crowns tattooed on their chests. There was also evidence that prison officials confiscated a pair of Vela‘s shoes on which the five-pointed crown had been drawn and that he kissed the crown prior to surrendering the shoes. A Nebraska correctional officer who is involved in tracking gang members within correctional institutions testified that the five-pointed crown is a symbol of a gang known as the Latin Kings and that the symbol is an “immediate identifier” which identifies the person displaying it as a member of the Latin Kings. A person who was incarcerated with Vela in Madison gave a sworn statement in which he said that Vela told him that when he came to Nebraska from California, he got involved with Sandoval, Rodriguez, and others who were Latin Kings because he “liked the way they were doing things.” There was other evidence linking Vela to street gangs in California and the Latin Kings in Nebraska.
Persons fluent in the Spanish language who reviewed recorded telephone conversations between Vela and members of his family after the bank murders stated in affidavits that they did not hear Vela express
On September 19, 2002, 7 days before the bank murders, Vela and Sandoval were stopped and questioned by a Nebraska State Patrol trooper as they walked along a road south of Norfolk. The trooper did a pat-down search which revealed a loaded 9-mm handgun in the waistband of the jeans Vela was wearing. Vela identified himself as “Fernando Vela” and claimed that he found the weapon and intended to sell it. The weapon was seized, and Vela was charged with false reporting and carrying a concealed weapon. He was transported to the Madison County jail and released within days; Sandoval was not held. There is evidence that the weapon which Vela was carrying at the time of his arrest was one of several which had been stolen by Sandoval and Galindo in a burglary. Law enforcement officers did not know this at the time of Vela‘s arrest and subsequent release prior to the bank murders. Other weapons stolen in the burglary were used in the bank murders.
Kalechstein, the neuropsychologist who testified for the State at the mental retardation hearing, was recalled and testified during the sentencing hearing. He reiterated his opinion that Vela is not a person with mental retardation and does not have a cognitive disorder. The State offered certain portions of the record from the aggravation hearing for the purpose of rebutting Vela‘s mitigation evidence, and it was received for that purpose.
(ii) Victim Impact Testimony
Prior to this hearing, Vela had filed a motion seeking to preclude the sentencing panel from considering “victim impact statements” submitted by family members of the murder victims which were included in the presentence investigation report. By order of the presiding judge, these statements were placed in a sealed envelope. When the State announced at the sentencing hearing that it would present testimony of family members for the purpose of establishing victim impact, Vela objected and argued that such testimony was not permitted at a capital sentencing hearing. The presiding judge overruled the objection but cautioned the prosecutor to confine the examination to personal attributes of the decedents and the effect of the deaths on the families.
Five family members of the murder victims testified over Vela‘s continuing objection. Vela moved to strike one response to a question on direct examination because it was not within the restrictions established by the court. With the State‘s concurrence, that response was stricken.
(c) Sentencing Order
In its sentencing order, the panel noted that it had not reviewed the sealed victim impact statements which were included in the presentence investigation report and that it disregarded any portion of the victim impact testimony “which may have included characterizations and opinions about the crimes of [Vela] and what the appropriate sentence should be.”
The sentencing panel found that no statutory mitigating circumstances applied to Vela. It specifically found that Vela was not the “master planner ... or in fact the leader” of the attempted bank robbery and that Sandoval was in fact the leader. But the panel further found that Vela “willingly and knowingly participated in the attempted robbery resulting in five murders.” Accordingly, the panel concluded that the mitigating circumstance described
The panel determined that four nonstatutory mitigating factors were established: Vela pled guilty, he had a disadvantaged upbringing, his intellectual functioning is borderline, and he was a follower of a charismatic leader. The panel concluded that the evidence did not establish remorse as a mitigating factor.
In its comparative analysis of aggravating and mitigating circumstances pursuant to
Pursuant to
2. ASSIGNMENTS OF ERROR
Vela assigns, restated and renumbered in part, that the presiding judge and the sentencing panel erred in the following:
1. Allowing victim impact testimony at the sentencing determination hearing, in violation of
2. Refusing his offer of cases for proportionality review.
3. Finding that mitigating circumstance (2)(b) did not apply, in violation of the 8th and 14th Amendments to the U.S. Constitution and article I, § 9, of the Nebraska Constitution.
4. Finding that mitigating circumstance (2)(e) did not apply, in violation of the Eighth Amendment to the U.S. Constitution and article I, § 9, of the Nebraska Constitution.
5. Denying his amended motion to declare electrocution as a method of administering the death penalty unconstitutional, in violation of the 8th and 14th Amendments to the U.S. Constitution and article I, § 9, of the Nebraska Constitution.
3. STANDARD OF REVIEW
In a capital sentencing proceeding, the Nebraska Supreme Court conducts an independent review of the record to determine if the evidence is sufficient to support imposition of the death penalty.147
In challenges to the constitutionality of a method of execution, the Nebraska Supreme Court determines whether the trial court‘s conclusions are supported by substantial evidence.148
4.
ANALYSIS AND RESOLUTION
(a) Victim Impact Testimony
Vela contends that he was prejudiced by both the sealing of the victim impact statements included in the presentence investigation report and the panel‘s decision not to review those statements but to allow live victim impact testimony. This argument is based upon the interplay between several Nebraska statutes.
Presentence investigations are governed by
Vela contends that by sealing the victim impact statements contained in the presentence investigation report, the district court deprived him of a statutory right to review such statements and that the error was compounded by the court‘s receipt of victim impact testimony which, Vela argues, was not permissible under
We cannot discern from the record why the sentencing panel employed the procedure that it did. To the extent that it may have been concerned about whether its consideration of written victim impact statements would violate Vela‘s Sixth Amendment right to confrontation, that issue was resolved by our recent decision in State v. Galindo,154 in which we concluded that the decision of the U.S. Supreme Court in Crawford v. Washington155 did not change the established principle that Sixth Amendment rights are inapplicable to a sentencing proceeding.
Despite the procedural irregularity with respect to victim impact information received by the sentencing panel in this case, we conclude that there was no prejudicial error. It is undisputed that victim impact information may be considered in sentencing a convicted murderer, because “‘just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.‘”156 The capital sentencing statutes authorize the sentencing panel to consider “[a]ny evidence at the sentencing determination proceeding which the presiding judge deems to have probative value....”157 We recently held in Galindo that victim impact statements are admissible in evidentiary hearings conducted pursuant to
There is a substantive limitation on the admissibility of victim impact information: Victim family members’ characterizations
(b) Mitigator (2)(b)
Vela argues that the sentencing panel erred in not finding the existence of the mitigating circumstance described by
There is no burden of proof with regard to mitigating circumstances.160 However, because the capital sentencing statutes do not require the State to disprove the existence of mitigating circumstances, the risk of nonproduction and nonpersuasion is on the defendant.161 In this case, the sentencing panel accepted Vela‘s argument to the extent that it found that Vela was “not the master planner of this attempted robbery or in fact the leader.” But based upon other evidence in the record, the panel found that Vela “willingly and knowingly participated in the attempted robbery resulting in five murders.” This evidence included the fact that Vela had several opportunities to separate himself from the plan to rob the bank, yet did not do so, and that he acted alone in shooting Bryant. The panel also noted that Vela “has demonstrated his ability to think and act independently in communications he has made since his arrest, as well as in his guilty pleas over the objections of his counsel.” These findings are supported by the record, and the sentencing panel therefore did not err in concluding that the mitigating circumstance described in
(c) Mitigator (2)(e)
Vela also assigns that the sentencing panel erred in not finding the existence of the mitigating circumstance described in
The sentencing panel found that “Vela entered the bank at the same time as [Sandoval and Galindo] with a loaded handgun, fully knowing the plan, prepared to shoot and materially participated in the execution of these crimes.” The record fully supports this conclusion and would not support a characterization of Vela‘s role in the death of each victim as “relatively minor.” The sentencing panel did not err in concluding that this mitigating circumstance did not exist.
(d) Proportionality Review by Sentencing Panel
One of the factors which the sentencing panel was required by statute to
We rejected a similar argument in State v. Galindo,163 reaffirming our prior cases164 holding that proportionality review by the sentencing body entails consideration only of other cases in which the death penalty has been imposed. We reach the same conclusion here.
(e) De Novo Proportionality Review
Under
Obviously, Galindo is the most comparable of these cases. In Galindo, as in this case, a jury found the existence of five aggravating circumstances, including
Based upon our de novo review, we conclude that the four aggravating circumstances considered by the sentencing panel far outweigh the mitigating circumstances and that the imposition of the death penalty on each of the five counts of first degree murder for which Vela was convicted is not disproportionate or excessive when compared with previous cases involving the same or similar circumstances.
(f) Method of Execution
Vela assigns error to the order of the district court denying his motion to declare electrocution as a method of implementing the death penalty unconstitutional. The order was entered prior to our opinion in Mata II175 In accordance with our opinion therein, we find merit in this assignment of error.
V. CONCLUSION
For the foregoing reasons, we find no merit in any of Vela‘s assignments of error except the assignment challenging electrocution as the method of execution. But for the reasons discussed in Mata II,176 the constitutional infirmity in this method of execution does not require that we disturb the death sentences imposed in this case. Because we find no error in the imposition of those sentences and further conclude on de novo review that they are not disproportionate or excessive, we affirm.
AFFIRMED.
HEAVICAN, C.J., not participating.
CONNOLLY, J., dissenting.
I dissent from the majority‘s opinion that adds the words “significant limitations” to the adaptive behavior component of the statutory definition of mental retardation. Why quibble over two words? Because by adding these words to the statutory definition, the majority opinion has imposed a higher burden of proving mental retardation than the Legislature‘s standard.
This is the first time that we have had the opportunity to interpret
It is for the Legislature to declare what is the law and public policy.2 If a statute‘s language is clear, the words of such statute are the end of any judicial inquiry regarding its meaning.3 It is not within a court‘s province to read a meaning into the statute that is not there.4 The majority opinion has done that.
The majority opinion, however, states that “we can conceive of no reason why the Legislature would have intended to preclude the death penalty for persons with clinically insignificant deficits in adaptive behavior.” The majority is implicitly concluding that it must construe the statute as incorporating the clinical criteria because the plain language of the statute would lead to an absurd result otherwise. But the statute‘s plain language does not lead to an absurd result. It does not follow that because the Legislature has not required “significant limitations” in adaptive behavior, persons with insignificant deficits would evade the death penalty. In short, there is a range of diminished adaptive behavior between “significant limitations” and “deficits” that does not include “insignificant deficits.” Further, I believe the majority‘s framing of the issue obscures valid concerns that support the Legislature‘s definition.
The majority concedes that the Legislature has deviated from the clinical definition of mental retardation by omitting another important diagnostic criterion:
The majority concludes that the district court did not err in construing
As a group, people with this level of Mental Retardation typically develop social and communication skills during the preschool years (ages 0-5 years), have minimal impairment in sensorimotor areas, and often are not distinguishable from children without Mental Retardation until a later age. By their late teens, they can acquire academic skills up to approximately the sixth-grade level. During their adult years, they usually achieve social and vocational skills adequate for minimum self-support, but may need supervision, guidance, and assistance, especially when under unusual social or economic stress. With appropriate supports, individuals with Mild Mental Retardation can usually live successfully in the community, either independently or in supervised settings.8
This description clearly would not preclude a mental retardation diagnosis just because a person possesses some academic or vocational skills or because a person can live independently. Neither are low skills inconsistent with the U.S. Supreme Court‘s description of persons who are less culpable and less deterrable than the “average murderer” for ensuring that only the most deserving of execution are put to death:
Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.9
The Court concluded that
[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.10
For similar reasons, the Court has determined that juveniles cannot be classified among the worst offenders and that their “culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.”11 Thus, even if some persons with mild mental retardation can function on the level of a teenager with about sixth-grade academic skills, as the DSM-IV-TR description indicates, that would not mean that their culpability warrants the death penalty.
I believe these descriptions of mild mental retardation and diminished culpability refute the majority‘s implicit conclusion that the Legislature intended a court to use the “significant limitations” standard for evaluating diminished adaptive behavior despite the Legislature‘s omitting that standard from the statute. Given these descriptions, the Legislature could have reasonably concluded that the “significant limitations” standard could be interpreted in a way that would exclude criminals with mild mental retardation from
Further, the Legislature obviously was not concerned about matching diagnostic criteria point for point. For example, the majority points out that under the DSM-IV-TR, “it is possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in adaptive behavior.”12 And the DSM-IV-TR also provides, “Mental Retardation would not be diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or impairments in adaptive functioning.”13 Yet, I assume the majority would not conclude that these clinical diagnostic statements demonstrate that the Legislature has incorrectly enacted a presumption of mental retardation for persons with an IQ below 70. It appears to me that the Legislature‘s presumption of mental retardation for a person with an IQ under 70 shows that it did not intend
One more point, and I am done. To the extent there is any ambiguity about the Legislature‘s intent—and the trial court found that there was—the legislative history shows that the omission of a “significant limitations” standard was intentional.
The Legislature enacted
“Mental retardation means substantial limitations in present functioning. It is characterized by significantly sub-average intellectual functioning (an IQ of approximately 70-75 or below) existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self direction, health and safety, functional academics, leisure and work. Mental retardation manifests before age 18.”15
Another witness informed the Judiciary Committee that its definition was inconsistent with other federal and state definitions.16 For example, for determining whether an applicant is entitled to residential care,