*1 meaning the true intent and of the Constitution. An merely presents charge, indictment on affidavit proves while a conviction it.” judgment of the District Court is affirmed.
Affirmed.
E.
Nebraska,
appellee,
State
v. Robert
appellant.
Williams,
Dennis De- Hagel, fender, Goos, L. Thomas and Richard L. for appellant. Douglas, Attorney Judy General, K.
Paul L. appellee. Hoffman, for J.,
Heard before C. Boslaugh, McCown, Krivosha, JJ., District Brodkey, White, Rist, Clinton, Judge.
McCown, J. pleaded guilty Robert E. not reason of Williams derangement insanity or mental to two counts in the first count of de- murder one first guilty gree jury He was sexual assault. found three death on on all the counts and sentenced to each imprisonment murder and to two counts for not years years less than nor more than on the 8% sexual assault count. August 11, 1977,
In the late afternoon of the bodies McGarry A. of Patricia and Catherine M. Brooks McGarry apartment Lincoln, were found *3 neigh- Nebraska, after a search was instituted when 5-year-old daughter bors the found Catherine wandering neighborhood looking the Brooks in for her mother. body ly-
The naked of Catherine Brooks was found ing living face in of her down the center the room floor. pool A of blood surrounded head. There was a in nonfatal bullеt wound her back and two bullet wounds behind her left ear. Later medical ex- spermatozoa vagina amination revealed in the and pathologist in the rectal tract. The testified that the spermatozoa deposited would have had to be within her an hour of death. body McGarry lying
The of Patricia was in the dining up, room, face clad in a blue housecoat. She times, right had also been shot three once under her bloody ear and twice the neck. There awas trail carpet living dining on the room to the from the room into the spot body lay. where Patricia’s police empty The found an beer bottle with latent fingerprints on a chair. Later examination estab- the fingerprints lished as those defendant. also found a full box of .22 caliber police long in the living rifle shells on the coffee table room and unfired .22 caliber shell on the sofa. The another of a .22 caliber shell was found on the floor of casing There a bullet hole the living room. was wall rooms, and and a living dining spent between in the entryway was found between two bullet that on investigation rooms. Later established Au- 10, 1977, at 7:15 model approximately p.m., gust and Smith & Wesson .22 caliber revolvеr five K-22 of .22 rifle shells long purchased boxes caliber were the defendant at a store in Lincoln. August at trial established that on Evidence a.m., 1977, at approximately 9:30 defendant ap- at of another apartment young woman in peared Lincoln, been acquainted Nebraska. She had with for 6 months he approximately defendant 2-year-old daughter been a for her on babysitter had told the The defendant woman his occasion. asked her broken down and to use tele- car told She him and he then her he admitted phone. in her for a while. She stay apartment needed stay he in the room area storage suggested instead. The defendant then complex apartment have a revolver and demanded that she sexual drew him. tried to herself She lock relations forced the door open but defendant bathroom off the lock. He struck her chest broke gun head with the threat- side off, her. raped her head and then to blow ened for apartment several remained the woman repeatedly. and raped hours *4 the defendant ordered p.m., approximately At go her child and bring 2-year-old his woman they As the curb he told approached him. car go. immediately free to went to a was She she her and the police. home called neighbor’s testified the time the de- during woman her, drank beer and fendant had been with he one joint appeared marijuana a smoked but normal appear did not to be intoxicated. Other wit- August on the defendant a.m., nesses who had been with August 11, 1977, on and one as late as 1:30 ap- on testified that those occasions the defendant peared pear speech ap- normal and actions did not although intoxicated, had been
to be he drink- ing. evidence at trial established apartment p.m.,
left the in Lincoln about 4 woman’s August 11, 1977, and about an hour later was seen at Fremont, Nebraska, a station in service some 50 away, stopped purchased gaso- miles where he The station line. ant’s attendant testified the defend-
speech appeared and coordination to be nor- although mal, he smelled alcohol on the defendant’s breath. approximately p.m., August 11, 1977,
At on 10:15 deputy sheriff observed and checked the defendant’s park County, at a car rest area Cherokee periodically Iowa, through and chеcked it thereafter night. deputy a.m., the towed At 6:15 had the car
away. Upon depu- car, of the examination packaging ties discovered box for a Smith & Wes- revolver; long K-22 son a box .22 caliber rifle car- tridges cartridges from which six had been re- bag marijuana; gas moved; a and some cans with negroid hairs on them. Shortly August a.m., 12, 1977, after on Mrs. Jack y2
Montgomery, park who lived 1 miles west and rest area which defendant’s car had been found, missing discovered that her car from garage. There was a blanket in the car and another missing. blanket was also book with the the rage. She also found a check- imprinted name the defendant lying driveway ga- checks in front of the approximately At 10 o’clock the same morn- ing Montgomery car was found abandoned in a *5 Montgomery of the northeast about 20 miles ditch farm. morning, a.m., the Elbert on same little after A farmyard approxi- standing in his was Bredvick point mately at which the 5 miles southwest Montgomery Bredvick ob- car had been abandoned. carrying approaching two the defendant served draped over his shoulder. defendant blankets the nearest town. Bredvick for directions to asked gave which led defendant the defendant directions Wayne past mile to the the Rowe farmhouse one-half departed in west, that direction. and the morning August Wayne Mrs. On ap- a.m., at for an left the farm home 7:45 Rowe pointment Wayne left at her hairdresser. Rowe shortly a.m., about 8:15 and returned after house noon, expecting his home. He wife observed gone when he entered his wife’s car was and purse he saw his wife’s on chair and house morning on the mail table. About that time an Iowa trooper trooper arrived and Rowe and state went body upstairs and found Rowe’s naked on Mrs. shotgun in There was a her
bed. wound side an- back, in her other there was wound her from a .22 caliber Later neck bullet. examination sexually she had been established also as- saulted.
Negroid hairs were found in her hand and compared favorably bedspread diameter, which pigment patterns, coloration, distribution, scale samples from medullation taken the defendant his car. A .22 gas the hairs found on the cans bullet found the fibers of bed- caliber spread which matched bullets recovered from of Catherine Brooks and Patricia the bodies Mc- kept Garry. shotgun A had been Rowe missing telephone had home was and the line been cut. garage officers
In the bushes behind Rowe found the blankets identified Bred- which were the blankets draped vick as had been over defendant’s earlier that morning. shoulder Paul, Rowe car was found later in St. Minnesota. the car live Inside was a round .22 am- caliber munition and a misfired with a cartridge firing pin *6 impression which matched a casing found at scene. murder 13, 1977,
On August approximately p.m., at 1:30 Paul, Minnesota, St. suburb of a defendant con- Behun gunpoint fronted Walter at the Behun yard ordered Behun to drive him to and St. Paul. They time, for some ending drove around at a railroad yard, where the defendant tied freight Behun up shirt, him, belts and a sweat gagged and left in a him caboose. Behun testified that the defend- did not to be appear ant intoxicated. 13, 1977, p.m., August
About a woman young her returning Paul, to car in a parking was lot in St. She opened the car door placed Minnesota. and her on the floor. The defendant purchase up came be- her get hind and ordered her into the car or he shoot so, her. Before she would had time do he in the arm shot her once and again later behind her car, The defendant her pushed left ear. into the de- kеys, manded and to a drove remote country assault, he her. After raped area where the de- tied her hands and legs fendant and drove off in her herself, managed car. She untie to a got farm- and house was taken to the hospital, where she ul- timately recovered.
The evidence August indicates that after Illinois, defendant went to Chicago, and then Lincoln, Nebraska, he back where was arrested yards the railroad on the early morning August 18, 1977.
The defendant made statement to the police evidence, was admitted in and also testified at trial. the defendant admitted Essentially, shooting McGarry at the Brooks and Patricia both Catherine raping apartment Lincoln, denied Catherine but heavily He he under Brooks. testified that was liquor drugs at the time of shoot- influence of consequently very ings that his recollection was vague confused. insanity the defendant’s
On the issue of raised prosecution, psychiatrists plea, for testified two although the testified that defendant suf- and both personality disorder, he not insane from was fered psy- and assault. Two time murders at testified that at the time of for the defense chiatrists paranoid suffered from a the crimes the defendant beyond personality of a that disorder. One tes- state perception reality defendant’s tified seriously impaired, judgment but the doc- his were say not did not could know tor wrong. doing was other doctor tes- he was what process thinking dis- defendant’s tified he his actions and that would know were torted wrong only if took time to think. At the he conclu- *7 jury guilty the defendant of the trial found sion on three-judge panel all A three counts. sentenced each of the murder counts and him to death on two years imprisonment for not less than nor more to than 25 8% years count, on the and this sexual assault appeal followed. court erred contends that trial admitting than of crimes other those
in with evidence charged, and that the the defendant was
which preju- evidence of crimes was inadmissible such argues of that none the evi- dicial. The defendant prove subsequent needed to of crimes was dence charged, and that of the crimes the elements legal there no between such subse- is connection quent the defend- crimes and the crimes with which general charged. He on the rule that ant was relies prove admissible evidence other crimes is not guilty partiсular crime with the defendant charged. exception rule, he is an As to that repeatedly this court has held that evidence of other charged to that crimes similar is relevant and ad prove particular it when tends to missible criminal necessary is intent which to constitute the crime charged. Casados, State v. 188 Neb. 195 N. W. 2d In 210. sexual assault cases evidence which tends to design conduct, scheme, show a course or is ad identity, prove although missible to such evidence Walker, other relates 273, offenses. State v. 200 Neb. 2d 263 N. W. 454. (2), provides: Section 27-404 R. R. S. “(2) wrongs, crimes,
Evidence of other or acts not ad- prove person missible character of a in order conformity he to show that acted in therewith. It may, however, purposes, be admissible for other proof opportunity, prepa- motive, intent, as such knowledge, plan, identity, ration, or absence of mis- Nielsen, or take accident.” See State v. 203 Neb. 847, 280 N. 2d 904. W. may of other
Evidence crimes be admitted in a prosecution criminal where the evidence is so re- place, time, lated and circumstances to the of- charged pro- or offenses fense as to have substantial determining guilt bative value of the accused. sufficiently Evidence which is not related is exclud- ground probative on the ed value is out- weighed by prejudice. ques- the risk of undue probative depends many upon tion of value consid- including proximity point erations, of time and place, evidence, the character of the and all the sur- rounding Annotation, circumstances. See 92 A. L. 3d R. 545. consistently
Sexual crimes have been classified as class of crimes in which evidence of other sexual recognized having independent has been crimes as *8 relevancy. recognize problem Recent cases that the generally cannot be solved virtue of a mechanical relevancy but, instead, rule of is one of balance. (2d Ed.), p. p. § at McCormick on Evidence merely problem “[T]he one of is not states: balancing, pigeonholing, side, one on the one but of the in the the need for other-crimes evidence actual light of the issues and the other evidence available convincingness prosecution, evi- the of the the the other were committed and dence that crimes strength actor, and the or the accused was the suppоrting of the evidence in weakness other-crimes issue, other, the and on the the to which jury mastering hostility.” probably be to over- will roused evidence court noted in this the crimes trial case charged proved by necessity, must, of circum- evidence and of the lack stantial inference because eyewitness complete of of an or a detailed statement ruling the de- the defendant. trial court’s motion in of fendant’s limine to exclude evidence specifically of other crimes mental stated: “The issue competency bearing on the intent of the de- alleged committing crimes, fendant marked similarity design the other motive of period crimes and closeness of the time make admissibility strongly other crimes rele- prejudice overcome vant and of evidence which results therefrom. and accumulation “The court further finds that evidence necessary various stolen automobiles to trace the alleged course the defendant followed between the judicial other crimes which the court’s discretion are admissible.” of other criminal acts or
Evidence which involve explain charged, or circumstances crime integral parts are action, of an or trans- overall occurrence
may Nielsen, supra. be admissible. State v. The evidence of other before crimes case now detail- us constituted a continuous chain evidence ing flight, pat- the course of defendant’s terned was an course criminal conduct which
integral part of it. The evidence of other crimes prove opportunity, motive, relevant and in- greatly tent, strengthened by and that relevance is fact that all the other crimes occurred within a period of less than 72 hours after the crimes with charged. only which the defendant was Not was the evidence relevant on the issue of intent, motive and plan, preparation, but it established and a method of operation substantially including similar, the use of gun the same and the similar wounds in the neck and near the ear of the victims. part
There was no abuse of discretion on the of the admitting trial court in the evidence of other crimes prejudicial The here. effect on the defendant of the clearly admission of the evidence of other crimes is outweighed by the relevance of that evidence to prove the crimes with which the defendant was charged. photographs
The defendant next contends that the McGarry apartment taken at the in Lincoln and the farm in Iowa Rowe should not have been admitted they inflammatory, gruesome, were because prejudicial, they may and that whatever relevance outweighed by prejudicial have had was their effect. disagree. We photographs the 22 Of taken in Lincoln at the scene charged, majority of the crimes of them were showing only exterior and interior scenes inanimate objects, object and the defendant did not to their ad- objected The mission. seven said to be to the admission of photographs, only might some of which gruesome. photographs Three of the were Brooks; of Catherine one of the back of her head and showing it; a blood stain beneath the second was of upper back; her torso and and the third was a view body, partially of her entire obstructed a chair. photographs McGarry Two Patricia as found at evidence; the scene were admitted into one of showing carpet upper the blood-stained torso head; other entire book her and the of her beneath body. post photographs her, mortem clothed Two right view, left one a view and the other a were also to show the location wounds. Some admitted photographs not into evi- cumulative were received only challenged photo- three dence and graphs might reasonably of the seven gruesome. to be
be said photographs crime are sub- Iowa scene stantially to those at similar nature taken majority ex- scene of the Nebraska crimes. are *10 showing only scenes, terior and interior inanimate objects gruesome. not and are There three were showing photographs three different of the views body. wrist, One victim’s showed the wound on her head, one left showed wounds on the side of her body found, and one showed shotgun as it was with the photographs wound side. The three body showed the condition of the and the nature and photograph extent of the wounds. additional of One body the victim’s was excluded. photographs gruesome of of admission a na- largely
ture rests within the sound discretion relevancy court, trial which must determine their probative against weigh possi- their value their рrejudicial Freeman, effect. ble State v. 201 Neb. Although 544. it N. W. 2d is true gruesome probative photographs of value should be weighed prejudicial against possible effect they photograph admitted, are if before illustrates some in a homi- or makes clear controverted issue proper having case, laid, it cide foundation been may gruesome. received, it even if State v. Partee, 2d 634. homicide 199Neb. 258 N. W. In a upon photographs proper case, victim, of founda- purposes may tion, for be received in evidence body, identification, to show condition injuries, or and extent wounds and to es- nature Dittrich, or 191 Neb. tablish malice intent. State 2d 637. 215 W.N. photographs admitted here were relevant and probative establishing of direct elements of the crimes value the various
charged. The court did not admitting photographs abuse its discretion in into evidence.
The defendant next contends that the trial court refusing change erred in to sustain a motion for a venue. The defendant contends that because of ex- publicity virtually media, tensive residents of Lancaster in the news all the of the
County knowledge had many opinions cаse, guilt had formed as to the or innocence of the defendant. The defendant there- argues fore that he could not trial, receive a fair nor possible prejudice could be cured extensive voir dire examination. hearing
The trial court held a on the motion for change prior trial, of venue at which time the re- opinion survey profes- sults an conducted two poll sional researchers and other evidence as to the pretrial publicity nature and extent of were intro- ruling duced. The trial court reserved on the mo- pending jury. tion the final selection of the Exten- jury sive voir peri- dire on selection extended over a days, od of 5 and the trial court then denied the de- change fendant’s motion for of venue. *11 jurors
The record establishes that 11 of the 12 re- publicity they called little about the had heard or read, opinion and none had formed an on the issue guilt. juror of the defendant’s The twelfth at first opinion concerning indicated an the some elements of case, but also indicated confusion as to the voir questions responded dire and later that she did not any opinion way Upon ques- have one or the other. tioning by the court she stated that she did not have opinion a fixed and that she could set aside im- pressions may gotten publicity she have from fairly given decide the case courtroom. All the on the evidence
jurors they indicated that be- they impartial jurors. lieved could be fair and position The defendant takes the that extensive pretrial exposure jurors to information and news accounts as to the crimes with which the defendant charged standing deprive sufficient, alone, process. him of due That conclusion is unfounded. Murphy See Florida, v. 421 U. S. 95 S. C.
L. Ed. 2d 589. showing
The burden of essential unfairness must injustice be sustained the one who claims such and seeks to have the result set aside. As the United Supreme Dowd, States Court stated in Irvin v.
U. S.
that
81 S. Ct.
In this state a motion for a venue criminal case is addrеssed to the sound discretion ruling the trial court and its will not be disturbed on appeal unless a clear abuse of discretion is shown. Klatt, State 187 Neb. 188 N. 2d 821. W. While pretrial publicity there was extensive in the case supports us, now before we believe the record denying action of the trial court in the motion for a change of venue and there was no abuse of discretion.
Defendant next contends that the trial court erred failing suppress to sustain motion to defendant’s statements, admissions, all and comments obtained from the law enforcement officers. Essentially argument upon the fact centers rights tape the Miranda were not included on the re- cording statement, of the defendant’s and the de- rights testified him, fendant that the Miranda were never presence requested read he attorney. his
70 police testified that specifically
Two officers read to rights prior were the defendant Miranda statement, responded affirmatively that he them, did not and that the defendant request each of and consented the statement at that lawyer give The is that because argument time. defendant’s included on rights Miranda was not giving from the tape recording, recording absence is were not rights given. сonclusive evidence officers not police only Two testified affirmatively Miranda were but rights given, explained tape had not been turned on why recorder at the of the interrogation. outset
In this state the admission evidence a state confession ment or constitutes the trial court’s inde determination the statement pendent was vol Davis, 146 Neb. N. 180 untarily made. See v. State den., cert. 386 W. 2d U. S. 87 S. Ct. L. Ed. 2d 348. A the trial finding by court that a of an is will voluntary statement accused not ordi be set narily appeal aside on unless the finding is Medina, erroneous. clearly State Neb. 204 W. 2d 785. trial finding N. court’s of volun tariness supported record and is not errone ous. defendant asserts that he was denied a fair
trial and due process law because of the State’s prejudicial withholding misconduct evidence fa- vorable to the direct violation of the trial court’s order concerning discovery and disclo- In response sure. to defendant’s pretrial motions for disclosure discovery, the trial court ordered to provide State to the defendant for inspection copying (1) or photographing: The defend- statement; (2) ant’s prior defendant’s criminal record, (3) if any; the nаmes and addresses of all witnesses whose based, evidence the charge is in- cluding witnesses which the prosecution intends rebuttal; (4) to use and reports results *13 physical examinations, of scientific and mental experiments this in connection with made or tests (5) papers, books, particular case; documents, objects, photographs, accounts, letters, or other things tangible or of kind nature which whatsoever as the State. could be used evidence complains of violations which involve Defendant paragraph 5 of the order and cen- under documents police investigative reports which con- ter tained, 18 around many instances, summaries statements or of officers as as as inferences conclusions witnesses well validity veracity portions to the or as- all of the witnesses’ statements. defendant testimony if the at that a witness trial dif- serts reported respect from the as fered in in statement report, police the State have delivered should report prior police to the to trial. Such wholly hearing is At the a conclusion unwarranted. alleged trial, on defendant’s motion for new lation of vio- discovery ordеr raised and evi- introduced, court, issue, dence and the on trial this specifically “Nothing appears found: in the exhibits materially testimony given to be at odds with the at subjected the trial. Those who testified were length by at cross-examination defendant’s counsel or called as were witnesses for the defendant. No showing police is made that information in the re- ports impeach any could have been used to wit- fully supports conclusion, ness.” record that question without and also establishes serious police reports information in the the patory was not excul- mitigation or a of the offenses required been which would have to have been dis- prosecution. by the closed position
The defendant’s is if a defendant has general discovery for made a motion and disclosure granted has been which the sense that it covers kind documents whatsoever or nature which could State, as be used evidence the State is re- 72 produce for
quired anything the defendant We might aid his defense. can find no for support Illinois, 786, In v. U. such contention. Moore S. 706, 92 S. Ct. 33 L. Ed. 2d the United States Su- Court said: “We know of no preme constitutional requirement prosecution mаke a complete and detailed accounting police defense of all investigatory vein, work a case.” In a similar this court said: “We not yet point have reached the this where the county attorney required state entire give product his work to the defense.” State Williams, Neb. 159 N. 2dW. 549. In United States v. S. Agurs, U. 96 S. Ct. 49 L. Ed. 2d the United States Supreme *14 Court “The said: mere that item possibility an of information might undisclosed helped have the de- fense, or have might affected the outcome of the trial, does not establish in the ‘materiality’ constitu- tional sense.”
In State v. 195 Isley, Neb. 239 N. W. 2d this case, court said: “In a criminal the trial court is vested with broad discretion considering discov- ery requests of defense counsel and error can be only an predicated upon abuse of such discretion.” There was no abuse of discretion here. assigns as error the trial court’s re-
fusal instruct jury to the regard conse- of an of quences acquittal insanity. reason case of State Reitenbaugh, recent Neb. N. W. 2d has determined the issue adversely the defendant. In that case we held: “It is not to refuse to a jury error instruct in a criminal case of consequences of a verdict of not guilty by rea- insanity.” of son
Defendant also assigns as error the trial court’s or failure to dismiss to direct a verdict in favor of the defendant to the as first degree sexual assault century count. For a it almost has been the rule in only this state that: “It where there is a total sup- competent proof criminal case to in a failure of allegation information, port or a material testimony of or doubt- adduced is so weak where thereon could based a character conviction ful justified sustained, court will be be trial not guilty.” Webb, directing State v. a verdict not 662, 250 2d N. W. 625. 197 Neb. entirely may evidence this case
While the charge, there as to the sexual assault circumstantial than be no real that it more sufficient can doubt was jury, go trial did not err and the court overruling the motion for directed verdict.
Finally, the defendant contends that sentence case death is excessive relative to the facts applicable statutory considerations. under Following the introduction of at a sen- evidence tencing hearing, three-judge specifically panel following aggravating found that circumstances (1) present: previ- That defendant had been were ously invоlving of another use of convicted crime person, or to the had a threat violence substan- activity; history of serious tial assaultive criminal (2) murder Catherine M. Brooks was apparent in an effort to conceal the iden- committed perpetrator tity crime, but that the mur- that both mur- (3) McGarry not; of Patricia der especially atrocious, cruel, heinous, were ders exceptional depravity by ordinary stand- manifested *15 morality totally intelligence of and and without ards any (4) regard life; for that at the time human murder was committed the defendant also com- the murder. mitted another sentencing panel single miti-
The found as the the defendant possesses gating an circumstance personality which, with his intoxication antisocial from the use drugs emotional dis-
of alcohol murders, did, at the time he turbance committed capability manner, defendant’s in some diminish the requirements of his to the to conform conduct law, to but not to such an extent as excuse him for in the legal consequences of his conduct commis- sion of the crimes. sentencing aggra- further found that panel
vating outweighed circumstances mitigating The panel imposed circumstances. then the death on each count of first penalty murder. of procedures sentencing panel complied with the standards fully statutory specific pro- to trial of applicable cedures courts cases convic- tion for 29, murder Chap. the first See degree. 1943, 25, S. art. R. R. and R. S. Supp., 1978. 29, 25,
Chapter article includes the provisions con- 711, 1978, tained L.B. Laws of now codified as sec- tions 29-2521.01 et seq., S. Supp., R. which apply of primarily method of imposition death sen- tences trial court and of review such sen- tences Court. The Supreme expressed pur- B. 711 pose L. is apply scrupulous standards imposition fairness the death penalty in- sure that the death penalty should be applied uni- formly and not arbitrarily. 29-2521.03,
Sections 29-2521.02 and R. S. Supp., Supreme shall, provide Court within a rea- 22, 1978, sonable time after July and analyze review all criminal involving cases homicide committed 20, 1973, or after and that April Court, Supreme shall upon appeal, determine propriety sentence in each case criminal involving a homicide “by comparing previous such case with cases in- volving the same or similar circumstances. sen- No tence shall be than imposed those greater imposed in other or cases with the same similar circum- stances.” In the of Chapter context article 29-2521.03, the word “sentence” in section R. S. Supp., construed to mean a sentence death, and the of that section provisions directing the determination by the Court of the Supreme pro- of a priety “sentence” by comparison previous
75 only applicable in a case where a sentence are cases imposed. been of death has primary foundation, to the review
A basic statutory provisions to, in the fact referred is only degree is for first murder crime this state imposed. penalty The of can be death which provisions Chapter dealing 29, 25, sen- with article degree tencing, apply only for first to a conviction Supp., 28-303, S. §§ section R. 1978. See under murder Supp., 29-2520, R. S. 1978. Nebraska 29-2519 patterned 1978, act, after L.B. Laws Georgia Supreme Georgia requires which act to and determine: review death sentences Court or dis- the sentence of death is excessive “Whether penalty imposed proportionate in similar considering cases, both the crime and the defend- Georgia 27-2537, identical lan- § Codе. That ant.” (3), Supp., appears guage in section 29-2522 R. S. sentencing applies primarily to initial Supreme Georgia has trial Court re- court. comparison of its “similar” review stricted involving to cases crimes for which the death cases permissible. penalty It should be noted also that is Georgia permissible penalty the death for more compari- specific one crime. The review and than court has been restricted to cases involv- son felony against ing murder felo- the identical crime — rape rape. Coley against ny State, murder, Georgia S. E. 2d 612. The cases reflect Ga. impossibility practical fact it is a obvious the make tence comparison any meaningful of a death sen- in a first murder case sen- imposed for crime for which the death another tence is not sentence authorized. language least sections L.B.
There is at two directing Supreme Court re- Laws of analyze If homicides.” “all criminal view beyond language interpreted first de- to extend relating problems gree convictions, murder prosecutorial homicide exercise discretion by juries of cases and the the decisional exercise power fixing determining guilt or innocence or de- *17 grees culpability in homicide cases are all in- interpret language volved. To of L.B. 711 literally problems. insurmountable would create constitutional disposition here,
In it view made is unnecessary to discuss constitutional issues.
For all these L.B. Laws of reasons codi- part Chapter Supp., fied as article R. S. require Supreme 1978, will be construed to the involving Court analyze only to review and cases a convic- degree tion for on first murder committed or after April 20, 1973. Where a death sentence has been im- posed, required and this court is to determine the propriety case, of that in sentence such the deter- previous degree mination of which first murder cases involve’ same or similar circumstances comparable and are therefore will made this case-by-case on court basis. analysis degree
Our review and includes first murder convictions for offenses committed on or April including 20, 1973, presently pend- after cases ing appeal. Thirty-two in this court on cases are in- in cluded that review in addition to the case be- now Twenty-one fore us. cases have been before this prеviously appeal. Eight court cases were not appealed. pending Three additional cases are now appeal. in this court on direct Seven death sen- pending including tences are now the case now be- remaining twenty-five fore us. The cases involve analyzed life sentences. The cases reviewed and opinion. in are set out the addendum to this Analysis of all callous, these cases indicates that a disregard coldblooded, life, and cruel for human coupled previous with convictions for involv- crimes ing person, given violence to the has tended to be great balancing weight aggravating as circum- youth, coupled stances, and that extreme with the previous absence of substantial record of crimi- balancing given great conduct, to be has tended nal weight mitigating In all as circumstances. previously penalty or affirmed now death cases pending court, each has involved at least this statutory aggravating separate three and distinct statutory mitigating only one or no fac- factors tors. The case now before us pattern,
also fits only and, addition, death sentence case now multiрle pending mur- which first involves ders. virtually impossible
It would be to find two mur- respects. der cases which are the same all We given find no case life sentence was or involves same similar circumstances which that balancing Any objective weighing of the case at bar. aggravating mitigating circum- comparison penalty to the other death stances *18 pending now establishes the death sen- cases tence case now before us is not excessive or penalties imposed disproportionate to the death penalty aggra- the other death vating cases. If sufficient justi- circumstances existed those cases to imposition penalty, fy of the death mer- then the ciless, callous murder of two defenseless women justification provided ample this case for the death penalty here. remaining assignments
The defendant’s of error merit, and the sentences are without convictions and affirmed. are
Affirmed. ADDENDUM analyzed murder cases reviewed First 1, 1979. of November as APPEALED
CASES AND REPORTED Casper, 120, 192 Neb. v. v. 219 2d 226. State State N. W.
Wilson, 435, 192 Neb. 222 2d 128. N. W. Nokes, 844, 192 v. Neb. 224 2d 776.
State N. W. Russell, 64, 194 v. Neb. 230 2d 196.
State N. W. Harris, 74, v. 194 203. Neb. 230 2d
State N. W.
78 353,
State v. 194 Neb. 231 681. Lytle, N. W. 2d Ell, 800, State v. 196 Neb. 246 N. 2dW. 594. Sims, 1,
State v.
197 Neb.
With due respect to my brothers who make up part majority case, in dissent from in I must this wholeheartedly I concur in this case. their decision majority, in- in all the conclusions reached analysis interpretation cluding of how we are its except single apply as to its L.B. Laws imposed penalty be the death shоuld conclusion that My in of those cases included case. review in this majority’s compels me to reach a addendum modify judgment contrary I would conclusion. by declaring be that the defendant the trial court imprisonment rather than to a term of life sentenced to execution. be sentenced regard to the there be no confusion with that
So clearly unequivocally state that matter, my let me upon that in is not based conviction decision imposed. penalty Quite should the death no case appro- contrary, in an I am of the mind presently exists, priate it under the law as case penalty imposition of be both lawful the death would just appropriate. in It is that I conclude this imposition of the not authorize the the law does case penalty. death reject totally made some that the contention
I penalty imposition of the death is either immoral society pursuant imposed by when or unethical its subject require- code and to the further criminal process the defendant be afforded due ment capital imposition punishment find the We law. provided early appropriate for as as the case in an рerhaps I diffi- even before. have Code Mosaic concluding culty that which is embodied or immoral. Code can be either unethical Mosaic through ages, societies, true that some It is capital the manner discriminated have imposed punishment has been administered or have of those actions barbaric manner. Neither it in a society But the mere fact that be condoned. can penalty imposition prescribes an the death *20 appropriate im- case does not cause it be either moral or unethical. reject by
I, likewise, the contention made some imposition penalty the the death serves as a deterrent to future crime. The evidence with re- totally gard lacking or, to that matter is either if available, is so it inconclusive that is not reliable. Except instances, in rare the crime itself for which penalty imposed few, is is of such a nature that if thought give any, much the ultimate conse- quences.
My recognizing right society for rationale of a impose capital punishment appropriate to is, in an case upon
rather, society based a that a civilized view right assign crimes, a has to that сrime or heinous, it considers to be the most penalty the most severe say, society may can it inflict. That is to declare advance what crime or it crimes consid- highest ers order and worst offense by providing penalty to mankind for which like- highest is wise order the most severe. In doing, society clearly unequivocally so has announced to its members that this crime for which penalty imposed separate the ultimate is is a crime apart may and be committed within the from all other crimes which can or
society. attempt by It is an people, through legislative body, their to issue a pronouncement regard to the nature of the Legislature crime. It is on I that basis that find the may appropriately ascribe, of this state as an al- penalty ternative for the commission of the most (first murder), imposition heinous crime penalty. of then that death It should therefore be clear my disagreement majority today with the upon any capital punishment is not based notion that appropriate. never My difficulty my analysis arises reason of majority reaching cases reviewed its imposition penalty conclusion that the death majority approрriate. notes that case is this previously penalty affirmed cases “in all the death pending court, has involved at each now in this or statutory aggravat- separate and three distinct least statutory mitigating only ing no one or factors and * * * any objective weighing balancing factors *21 aggravating mitigating circumstances and and of penalty comparison cases to the other death now pending, death in that the sentence the establishes disproportion- not excessive or now before us is case imposed penalties in the other death to the death ate agree. penalty that I But cases.” statement it With squares my that this belief the fact that case with penalty in the other cases death the seven has question. imposed not I does answer am been concerned, 711, 1978, L.B. as I believe Laws more re- quires concerned, as to how me be this case remaining squares 25 cases where the death imposed. penalty not by Stewart, noted v.
It was this court State 197 “Following 497, 849, 250 N. W. 2d the issuance Neb. opinion Supreme of the United States Court in of Furman Georgia, 2726, 408 U. S. 92 S. Ct. 33 L. (1972), Legislature, 2d 346 the Nebraska in an Ed. ef- requirements validity for to conform with the fort of penalty Furman, statutes set forth in death revised statute, and in 1973 enacted L.B. Nebraska’s R. appears as which now sections 29-2519 R. S. pre- 29-2546, R. R. S. 1943.” L.B. Laws aggravating series of a circumstances scribed mitigating and circumstances which were consid- by determining trial court whether to ered im- penalty. early pose death We concluded that aggravating a fact that there was list of circum- mitigating a list of circumstances did ag- stances simply up that one was to mean add not up mitigating gravating add circumstances and subtract one from the other. circumstances Again, supra, Stewart, said, in State v. we “-‘It emphasized procedure to that be fol-
must be judges juries is the trial not a mere lowed counting process aggravating of of cir- X number mitigating Y circum- to cumstances number judgment stances, a reasoned but rather as what imposition require the situations death factual and which can be satisfied imprisonment life totality present. light of the of the circumstances guarantees by this Court Review the reasons present in one will reach a case similar result to that reached under similar circumstances in another longer No will one man die and case. another live race, on basis or woman live and a man die basis sex. If is sentenced to light die, this Court can review case other and determine decisions whether or not ” great.’ punishment is too supra, Stewart, went on in further from the Florida State v.
We quote Florida, decision Alvord v. “ (Fla., 1975): way So. 2d ‘There is no Legislature judicial program *22 computer could a possible aggravating with all factors and all of possible mitigating factors in each case. See supra. Dixon, require State The law does not that punishment capital imposed every in conviction particular in which state of facts occur. The stat- properly requires discretion, allows some ute but this discretion be reasonable and controlled. No capital punishment defendant can be sentenced aggravating outweigh unless the factors the miti- gating However, factors. this does not mean every instance under a set state facts the defend- ” capital punishment.’ ant must suffer It therefore quite seems clear from what we have heretofore 268, prescribed ag- while 1973, said that L.B. Laws gravating mitigating they circumstances, were guide intended serve as a and not as an absolute. Some latitudе was still left with the courts as to penalty imposed. when the death was to be Were 268, nothing case than L.B. more involved in this agree might 1973, with the ma- I be able to Laws jority. my analysis must, however, continue I adopting light L.B. of the fact that after this case adopt Legislature 268, 711, 1973, saw fit L.B. our Laws Laws presume therefore, must, that the 1978. I Legislature 1978, 711, to serve as L.B. Laws intended 268, of L.B. an addition to or a modification either Otherwise, have been little there would 1973. Laws purpose adopting I that second act. be- or sense reading 711, 1978, of L.B. Laws discloses that a lieve Legislature to add to L.B. intended 1973. Laws provisions of L.B. Laws we
Under required, imposing only before now not are aggravating mitigat- sentence, to consider death required, ing we are further un- but circumstances Supp., provisions 29-2521.03, S. of section R. der the propriety of the 1978, to “determine the sentence in involving by compar- a criminal homicide case each previous involving ing cases case with such sentence im- or circumstances. No similar same imposed greater posed than those other shall be circumstances.” with the same or similar cases spelled is not a “circumstance” constitutes What imposes Likewise, L.B. Laws out. trial ap- instance, this in the first court on court duty ordering penalty peal, the death before (1) aggravating sufficient circum- whether consider justify imposition of a exist to sentence of stances (2) mitigating death, whether sufficient circum- approach weight or exceed the exist which stances (3) aggravating given circumstances, or to the , dispro- the sentence death is excessive or whether penalty imposed portionate cases, to the in similar *23 considering both the crime and defendant. Sub- (3) by added to L.B. Laws L.B. section Supreme is authorized 711, Laws 1978. Court to it not sentence finds consistent reduce 29-2521.04,29-2522, sections 29-2521.01to and 29- Supp., All of R. S. 1978. that makes it seem only required this
clear me that not is court to ex- mitigating aggravating circumstances, amine supposed are but addition to that we to in some degree place first manner each murder case one on top they of the other see whether or not all con- may I be the first to form. While concede that im- duty posing upon such a the court is at best difficult impossible, perhaps nevertheless, I cannot find ignore requirement. by say- how I can ing that I do not suggest majority ignored this hаs requirement. They have reached different conclu- making significant sion reason of distinction in me, however, the circumstances. For once the act intentionally killing established, of the other another I find significance
circumstances be of less therefore the distinctions much more difficult to make. jority. It is in this area I where differ with the ma- simply place
It is a fact that when I top other, cases one I do not reach the majority. as same conclusion reached For age me, factors such as the of the defendant or the previous nearly record of the defendant are not as significant as the circumstances under which the murder was committed. remaining
Of the 25 cases where life sentences imposed death, been have ing in lieu of I find the follow- Nokes, to be true. In State v. 192 Neb. pleaded guilty 2d N. W. defendant to one degree killing of first count murder for the of Wilma Hoyt and one count of second murder for killing Hoyt. of Edwin The facts disclosed couple, shot and killed the dismembered wrapped their bodies with pieces, knife, a butcher placed them in a freezer. Later pieces frozen were removed from the freezer and given thrown into a lake. The defendant was a life sentence.
85 645, Sims, 1, 246 N. 2d the 197 Neb. W. In State v. of first murder. was convicted defendant shooting prior to the de- facts disclose The driving The his automobile. de- had been ceased in a were involved near and the deceased fendant having in the defendant which resulted accident After a brief conversation the deceased. words the defendant A automobile. returned to his short area the defendant returned where later time passenger parked. A in the de- deceased was the fendant’s stepped of the car and automobile out fired pistol The removed a the air. defendant shot- a gun rapidly and in the
from the car walked direction standing against deceased who was his car. stopped he about 10 defendant when was feet The away fired from the deceased and one shell which causing abdomen, the deceased his struck The to life defendant was sentenced im- death. prisonment. 497, Stewart, 2d
In State v. 197 Neb. 250 N. W. though defendant, evidence discloses years engaged only age, 16 the business of selling marijuana. suppliers He his induced meet “rip off.” defendant, him so he could them provocatiоn, hitting dealers, shot the two without shooting fatally head, them back of the one instantaneously wounding died who other. The wounded one fell to the floor of the van and ob- spreading gas the in the van served igniting it in an effort to the crime. The conceal de- imprisonment. was sentenced fendant to life Record, In v. 2d State 198 Neb. 253 N. W. driving defendant and another were in an
the mobile auto- they anyone when to rob decided who next along. They approximately drove to 180th came Dodge parked Streets in Omaha and on a side road waiting for someone drive so that the defend- Approximately could shoot and rob ant someone. parked passed
a.m., a car their driven victim proceeding Dodge car, one east Street. With driving, pursued. parties victim’s the As the car drove car was pass,
alongside it as if to the de- breaking glass killing shot, fendant fired driver. defendant was sentenced to life im- prisonment. Scott,
In State Neb. 263 N. W. 2d charged perpetra- defendant was with murder in the attempt perpetrate robbery. *25 tion of or an a The evidence discloses that the defendant entered the home William Bertha McCormic in Omaha money gunpoint. and demanded at A scuffle ensued killed, and Mr. McCormic was shot twice and McCormic was shot Mrs. twice and wounded. Mr. years age McCormic was 92 at the time. Mrs. age impaired McCormic, 83, had vision and could any specificity. her not describe assailant with imprisonment. defendant was sentenced to life Prim, In State v. 201 267 Neb. W. 2d N. charged degree defendant with was first murder, having operator shot and killed the defenseless of a gas during robbery. station commission of a He imprisonment. to life was sentenced eight Likewise, there are additional cases included in the addendum in a life sentence was im- posed appealed for first murder and not court. In this State v. Anderson defendant, admittedly only years though previ- old, had three During robbery ous felonies. the course of a com- by jumping automobile, into the mitted victim’s shot the victim in defendant the head. He was sen- imprisonment. tenced to life being pursued defendant, In State v. Hatcher police engaged struggle officer, a in a with the police officer, struggled and as the officer with the gun twice, defendant the officer’s off went the sec- hitting ond time officer the head. The defend- imprisonment. ant was sentenced to life v. In State Brown the killed his victim defendant robbery. impris- during to life a He was sentenced onment. Ray 34-year-old Anderson,
In v. Jimmie State patrol- arrest and his wife resisted a defendant struggle police patrol- in the car man man shot and killed. The defendant was sen- imprisonment. to life tenced 16-year-old, Schaeffer, defendant, a
In v. State together friend, forced the owner of the Ace Store in Island into their Hardware Grand car at robbing they gunpoint where, him, after shot him 17 impris- was sentenced to times. defendant life onment. Floyd, years defendant, old,
In v. State shot gas during an unarmed and killed station attendant robbery. He the course imprisonment. was sentenced to life 23-year-old Rowert, In State defendant who drinking had been robbed another who also was in- money and who had a substantial sum toxicated person. The on his defendant determined to kill the victim so The the defendant could not be identified. lured the victim of a out bar and *26 country him out into the drove where he took the money then the slit defendant’s throat and then decapitated imprison- him. He was sentenced to life ment. 20-year-old defendant,
In the State Marshall working shop Lincoln, in a in flower robbed the robbery in the coursе of the owner owner from struck the head several times with a metal bar the victim died. He which was sentenced to imprisonment. life
In I each of cases have referred to where a life imposed, sentence has been one can find distin- regard guishing factors, sure, to be and in that I can- majority quarrel not I’m with the in its conclusion. simply to make such fine distinctions with unable regard killing hand, and, to, on the of one the matter imposition penal- hand,
on the other the death ty. difficulty seeing killing I have how a de- driving fenseless, faceless victim an automobile is any less heinous at than case bar. Once the totally unnecessary, meaningless, facts establish the and killing deliberate, wasteful but intentional of an- difficulty significantly distinguishing other, I have the circumstances mitted. the crime under which was com- my Legislature, adopt-
It is that the in view ing ther restrict previously recting 711, 1978, L.B. Laws have must intended to fur- imposition penalty of the death Laws as
provided 268, 1973, for in L.B. di- impose penalty pre- us not if death killings occasions and senseless vious cruel we imposed penalty. not the death have My legitimately pose ques- conclusions herein two (1) penalty appropriate If the tions: this death nоt (2) appropriate,
case, when will it be has adoption placed 711, L.B. Laws us into may longer impose a mold that no such we the death penalty single under circumstances where a given person has been a life sentence under similar regard question, circumstances. With first let simply say recognize ap- me that I believe I will an propriate case when I see it. I have no doubt that appropriate given upon case, based all things heretofore, we have done cases I will be imposition able conclude that of the death light penalty is intended even L.B. Laws and L.B. I Laws and will be able to imposition penalty. affirm of that Unfortunate- ly, I cannot in advance how articulate or under what may circumstances be. regard question, to the
With second whether we may are now such a mold from it be diffi- impossible, get simply say cult, out, if not I can appropriately that is a matter which must Legislature. often, considered Too courts are *27 intruding legislative accused into the arena. I Legislature in- not do so. I believe the choose to penalty in which the death tended to limit situations passage imposed. If, fact, of L.B. in Laws pеnalty imposition of the death has made Legisla- impossible, difficult, then it is for the if not its ture to reconsider action.
Nothing in I said here manner be have should permit I as to one to conclude that misconstrued so heinous, of murder a do not consider the commission appalling, unforgiving virtually I crime. Indeed one commits such I hold no belief that who a do. crime is entitled anything than the most other se- my punishment. however, am, I in constrained vere obligated judge. hand, I a as On one am actions penalty required by impose in those law even in- may disagree. By personally I where stances same imposing token, I must likewise refrain from penalty law, in where restrained even those disagree. personally may I in which That is cases myself I find case. this the situation murder terrible, horrible, in this case was a unfor- my giving likewise, mind, crime. Yet it is no (if comparison regard such murder worse made) meaningless than the senseless and can be imposed taking of lives for which we have heretofore It is I for reason that would life sentences. dis- majority agree area, in that one limited -with modify provide judgment herein I would should be confined the defendant Nebraska Complex for the Penal and Correctional of his remainder life. natural