holding that “not all ex parte communications subject a judge to recusal” and “a trial judge must recuse himself or herself only when the ex parte communication poses a threat to the judge’s impartiality”
How later courts described this case
- holding that “not all ex parte communications subject a judge to recusal” and “a trial judge must recuse himself or herself only when the ex parte communication poses a threat to the judge’s impartiality”
- relying on Johnson v. Hunter in holding that where parentage had been previously adjudicated, different putative biological father, who had not made requisite connections with child to establish constitutionally-protected parental rights, could not file parentage action — but child, who was not party to original parentage action, could
- holding that denial of motions for continuance was not an abuse of discretion
- “In the instant case, the trial court did indeed participate in the negotiations at issue.”
Written by the judges who cited it.
Later courts went against this
Disapproved on other grounds by State v. Hagens, 320 Neb. 65 (2025)
255 Neb. 456 , 586 N.W.2d 591 (1998), disapproved on other grounds, State v. Hagens, 320 Neb. 65
The opinion
Connolly, J.,
concurring.
I concur but write separately to raise certain issues concerning this court’s application of the risk of nonpersuasion to mitigating circumstances and this court’s proportionality review.
Risk of Nonpersuasion
Our holding in State v. Reeves, 234 Neb. 711 , 453 N.W.2d 359 (1990), wherein we indicated that there is no burden of proof with regard to mitigating factors, I believe has been inaccurately stated. The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the finder of fact concerning the degree of confidence our society thinks he or she should have in the correctness of factual conclusions for a particular type of adjudication. Lynch v. Nebraska Dept. of Corr. Servs., 245 Neb. 603 , 514 N.W.2d 310 (1994). A finding of fact invariably requires that some burden of proof be met; otherwise, any evidence produced must be believed (the degree of confidence required being nil). Indeed, for a fact finder to be “persuaded” by a defendant’s evidence, he or she must, at a minimum, be convinced that it is more likely than not that the evidence produced by the defendant is worthy of belief. If the fact finder were not so convinced, he or she could not be so “persuaded.” *525 Thus, the phrase “risk of nonpersuasion” means nothing more than that the defendant has to prove statutory mitigating circumstances exist by a “preponderance of the evidence.” We should explicitly state that defendants must prove the existence of statutory mitigating circumstances by a preponderance of the evidence. See, e.g., Com. v. Walker, 540 Pa. 80 , 656 A.2d 90 (1995) (holding that such scheme is not unconstitutional); State v. Cooper, 151 N.J. 326 , 700 A.2d 306 (1997) (explaining why burden should be on defendant rather than on state).
Proportionality Review
I am also compelled to point out that this court’s current interpretation of the proportionality statutes leads to illogical results.
In State v. Simants, 197 Neb. 549, 564 , 250 N.W.2d 881, 890 (1977), which was decided prior to the Legislature’s adoption of Neb. Rev. Stat. §§ 29-2521.01 to 29-2521.04 (Reissue 1995), this court stated that it would “compare each capital case under review with those previous cases in which the death penalty has or has not been imposed under the new [1973] statute.” (Emphasis supplied.) This court reasoned that by undertaking such a review, it could ensure that the death penalty is not applied in an arbitrary and capricious manner.
In 1978, the Legislature adopted §§ 29-2521.01 to 29-2521.04. Section 29-2521.03 provides in part that “[n]o sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances.” (Emphasis supplied.)
In State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979), this court held that §§ 29-2521.01 to 29-2521.04 applied only to convictions wherein the death penalty was imposed.
Later, in State v. Williams, 205 Neb. 56, 76 , 287 N.W.2d 18, 29 (1979), we held that §§ 29-2521.01 to 29-2521.04 would “be construed to require the Supreme Court to review and analyze only cases involving a conviction for first degree murder committed on or after April 20, 1973.” This conclusion was based on “the fact that in this state first degree murder is the only crime for which the penalty of death can be imposed [and that these sections] apply only to a conviction for first degree murder ...” State v. Williams, 205 Neb. at 75 , 287 N.W.2d at *526 28 . We stated that it “is a practical impossibility to make any meaningful comparison of a death sentence in a first degree murder case with any sentence imposed for another crime for which the death sentence is not authorized.” Id. at 75 , 287 N.W.2d at 29 .
In State v. Moore, 210 Neb. 457, 473 , 316 N.W.2d 33, 42 (1982), the defendant challenged the interpretation in Williams of §§ 29-2521.01 to 29-2521.04, arguing that the consideration of first degree murder convictions excludes from determination “a large group of homicides in which defendants avoided death by being charged with lesser crimes than first-degree murder or by pleading to lesser charges, or by other acts of prosecutorial discretion in interpreting the charging facts.” In response, this court delineated the reasons why a literal application of those sections would “unconstitutionally encroach upon the judicial function.” State v. Moore, 210 Neb. at 473 , 316 N.W.2d at 42 .
We stated that a literal construction would violate the separation of powers doctrine. First, we noted that “the Legislature cannot direct the disposition of one case by the factual determination of another.” Id. at 474 , 316 N.W.2d at 43 . Second, we noted that this court would have to “independently gather evidence.” Id. at 475 , 316 N.W.2d at 43 . Third, we noted that this court would be required to “find facts in a case not before it.” Id. Fourth, we noted that it would impinge upon the “executive function of the prosecutor.” Id. Fifth, we noted that it would “unconstitutionally restrict the appellate review powers of this court under Neb. Const. art. I, § 23.” Id. at 476, 316 N.W.2d at 43 . However, this court held that it would continue to make comparisons between first degree murder convictions.
Our holding in Moore was affirmed in State v. Reeves, 216 Neb. 206 , 344 N.W.2d 433 (1984), when we reviewed 58 cases wherein convictions of first degree murder had been imposed.
Finally, in State v. Palmer, 224 Neb. 282, 328 , 399 N.W.2d 706, 736 (1986), this court further limited its interpretation of §§ 29-2521.01 to 29-2521.04, holding that comparison reviews “should include only those cases in which the death penalty was imposed.” This court stated that “in the absence of anything indicating the contrary, statutory language is to be given its plain and ordinary meaning,” State v. Palmer, 224 Neb. at 294 , *527 399 N.W.2d at 717 , and that “where the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language.” Id. at 295 , 399 N.W.2d at 718 . Nonetheless, when making its determination concerning the appropriate interpretation of §§ 29-2521.01 to 29-2521.04, this court stated, “It is apparent that the statutes cannot be enforced as they were written.” State v. Palmer, 224 Neb. at 323 , 399 N.W.2d at 733 . This court noted that in order to impose the death penalty, the sentencing entity must list the aggravating and mitigating circumstances in writing, which is not required when the sentence is life imprisonment. Based on that predicate, this court concluded that there is no way of knowing whether any aggravating or mitigating circumstances were present in a given case unless the sentence is death. Accordingly, this court concluded that “no other case but a death sentence case can be said to be a case similar to that under review.” Id. at 327-28 , 399 N.W.2d at 736 .
I conclude that our holding in Palmer rendered proportionality review pursuant to §§ 29-2521.01 to 29-2521.04 a nullity. Our analysis in State v. Victor, 235 Neb. 770 , 457 N.W.2d 431 (1990), provides an excellent example of the meaningless analysis this court engages in when performing a “proportionality” review according to Palmer . In Victor , we stated that § 29-2521.03’s “purpose ... is to ensure that no sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances and that the review should include only those cases in which the death penalty was imposed.” 235 Neb. at 796 , 457 N.W.2d at 447-48 . We then noted that we had “compared” the case at issue with the “applicable cases” and concluded that “the sentence imposed in this case is no greater than, nor disproportionate to, the sentence imposed in any other case with the same or similar circumstances.” Id. at 796 , 457 N.W.2d at 448 . The obvious fallacy in this reasoning is that a death sentence cannot be “greater than” or “disproportionate to” another death sentence. Regardless of the aggravating circumstances present, the penalty imposed, which will always be the death penalty according to State v. Welsh, 202 Neb. 249 , 275 N.W.2d 54 (1979), will never be greater than the penalty imposed in other similar cases when *528 those cases are limited to those in which death has been imposed.
In construing a statute, a court must look to the statute’s purpose and give the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it. In re Invol. Dissolution of Battle Creek State Bank, 254 Neb. 120 , 575 N.W.2d 356 (1998). Moreover, in construing a statute, it is presumed that the Legislature intended a sensible, rather than an absurd, result. Hoiengs v. County of Adams, 254 Neb. 64 , 574 N.W.2d 498 (1998). Certainly, the Legislature could not have intended §§ 29-2521.01 to 29-2521.04 to mean nothing.
Unfortunately, a look at other jurisdictions’ methods of proportionality review does not solve this puzzle. In State v. Bland, 958 S.W.2d 651 (Tenn. 1997), the Tennessee Supreme Court held that the death penalty is disproportionately imposed only when the case at issue, “taken as a whole, is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed.” Id. at 665 . The court stated that “[e]ven if a defendant receives a death sentence when the circumstances of the offense are similar to those of an offense for which a defendant has received a life sentence, the death sentence is not disproportionate where the Court can discern some basis for the lesser sentence.” Id. Moreover, the court noted that “where there is no discernible basis for the difference in sentencing, the death sentence is not necessarily disproportionate.” Id.
In Tennessee, the Supreme Court “is not required to determine that a sentence less than death was never imposed in a case with similar characteristics.” Id. Tennessee’s proportionality statute requires its appellate courts to determine only whether a “ ‘sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.’ ” Id. According to the court, the word “ ‘disproportionate’ ” clearly indicates that the court’s “function in performing comparative review is not to search for proof that a defendant’s death sentence is perfectly symmetrical, but to identify and invalidate the aberrant death sentence.” Id.
*529 Accordingly, in Bland the court upheld a death sentence even though the death sentence had not been imposed in a similar case. The court admitted that it had “certainly found examples of more atrocious killings in which the jury declined to impose the death penalty.” Id. at 670 . However, the court emphasized that “the isolated decision of the sentencer to afford mercy does not render the death sentence in this case disproportionate.” Id.
Although the holding in Bland would resolve this court’s proportionality dilemma, the holding is inconsistent with Nebraska’s statute. Neb. Rev. Stat. § 29-2522 (3) (Reissue 1995) contains language similar to that in Tennessee’s statute, including the word “disproportionate.” However, §§ 29-2521.01 to 29-2521.04, the statutes at issue, do not. Rather, they clearly state that “no sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances.” (Emphasis supplied.) § 29-2521.03. Thus, § 29-2521.03’s plain language clearly requires what Tennessee’s statute does not, that no death sentence be imposed when a sentence less than death was imposed in a case with similar characteristics.
That is why this court rejected the statute’s plain meaning in State v. Palmer, 224 Neb. 282, 327 , 399 N.W.2d 706, 735 (1986), wherein this court stated that it was not
the purpose of the Legislature to eliminate all discretion in sentencing and ensure that the death penalty be imposed in every case in which it is a possible sentence or that the penalty not be imposed in cases in which it is appropriate because in certain other cases it was not imposed, although it might have been an appropriate sentence.
This court noted that “[i]t would be possible to construe the statute so that cases in which the death penalty was not imposed, although upon reflection it could be said that the death penalty might have been imposed, would be the standard against which all future death penalty cases would be compared.” Id. However, such a construction would “for all practical purposes ... amount to a repeal of the death penalty,” id. at 327 , 399 N.W.2d at 735-36 , because, as the court recognized in Bland , sentencing cannot be conducted with mathematical precision.
*530 This court stated in Palmer that it did not “understand that the Legislature intended the statute to effect a repeal of the death penalty.” 224 Neb. at 327 , 399 N.W.2d at 736 . The court took judicial notice of the fact that the Legislature had considered bills to repeal the death penalty and had rejected them. Indeed, it would be as illogical to hold that a statute intended to ensure the death penalty is applied proportionally was intended to overrule the death penalty as it is to give the proportionality statute no meaning at all. Why ensure that the death penalty is applied proportionately if the death penalty is not to be applied?
If the Legislature intends to require perfect symmetry in the sentencing of homicides, which is not only impossible but constitutionally unnecessary, see Gregg v. Georgia, 428 U.S. 153 , 96 S. Ct. 2909 , 49 L. Ed. 2d 859 (1976), it should simply repeal the death penalty outright.
This court is caught between a rock and a hard place. The interpretation in Palmer of §§ 29-2521.01 to 29-2521.04 is illogical. However, to reinterpret §§ 29-2521.01 to 29-2521.04 would require this court to (1) interpret the statute as written, thus accepting that the Legislature intended to implicitly repeal the death penalty, or (2) adopt some other interpretation that is unsupported by the statutory language. The first choice would be as illogical as this court’s holding in Palmer , this court would simply substitute one flawed result for another. The second choice would require this court to disregard its canons of statutory construction and act in a legislative capacity. Both choices would require this court to add yet another layer of judicial gloss to an already convoluted canvas.
The Legislature has not amended or repealed §§ 29-2521.01 to 29-2521.04 since this court decided Palmer . In the absence of Legislative action, and in light of the above analysis, I see little reason for this court to further muddy the waters by overruling Palmer , illogical holding or not. I can only conclude that any changes to our statutory proportionality scheme should be effected by the Legislature, not by this court.
Conclusion
This court’s precedents misstate the defendant’s burden of proving statutory mitigating circumstances. Rather than mis *531 stating that burden as “risk of nonpersuasion” this court should refer to it by its proper nomenclature, “preponderance of the evidence.” Finally, I urge the Legislature to either substantially amend or repeal §§ 29-2521.01 to 29-2521.04, thereby resolving this court’s battle with comparative review.