Appendix — CAREY D. MOORE v. NEBRASKA (No. 81-6435)

App. 1

STATE OF NEBRASKA, APPELLEE, V.

CAREY DEAN MOORE, APPELLANT.

—N.W 2d

Filed January 29. 1982. No. 42557.

1. Constitutional Law: Death Penalty. The death penalty is noi per se

cruel and unusual! punishment in violation of the eghth and fourteenth

amendments to the Constitution of the United States and article 1.

§§ 3 and 9. of the Bill of Rights of the Constitution of Nebraska

2 Constitutional Law: Aggravating and Mitigating Circumstances:

Death Penalty: Sentences Neither the Constitution of the United

States nor the Constitutwn of Nebraska requires determination by ® jury

of the applicability of the aggravating and mitigating factors in deter

mining under the provisions of Neb Rev. Stat §§ 29 2522 and 24 2523

(Reissue 1979) whether the penalty shall be death or life imprisonment,

and the provision of determination of the penalty by the trial judge or a:

vision of determination of the penalty by the trial judge or @ panel of

judges afier notice and hearing is constitutional

3 Censtitutiona! Law Aggravating and Mitigating Circumstances

Words and Phrases The definitions of aggravating circumstances in

Neb. Rev. Stat § 29 2525 (Reissue 1979) are not tow broad or vague and

will be given a narrow construction and narrow application, and as so

construed and appled are censtitutional

4 Criminal Defendants Hemicide: Words and Phrases. A state of

mind of the accused which indicates « callous disposition to repeat the

crime of murder manifests exceptional depravity by ordinary standards

of moraluy and intelligence within the meaning of Neb Rev Stat

§ 29 252M 1 ad) (Reissue 1979)

5 Criminal Defendants Hemicide A substantial history of serious

assaullive of terrorizing criminal activity includes @ previous premed)

tated murder

6 UU The fact that a murder wm committed to conceal the identity

of the perpetrator of a robbery satisfies the requirements of Neb Rev

Stat § 24 2524 Dab) CRerssue 1979)

7. Criminal Defendants Aggravating and Mitigating Circumstances

Sentences Neb Rev Stat § 29 2523 (Remiue 1979) does not limit in

any way the mitigating factors of circumstances which the court ma)

consider, and the sentencing court should be liberal in admitting evidence

of facts which the comucted defendant asserts are mitigating factors

8 Constitctional Law Aggravating and Mitigating Circumstances

Proof Neither the Constitution of the Unied States nor the Constitu

tion of the State of Nebraska requires the prosecution to prove the

absence of mitigating factors

9 Constitutions! Law Death Penalty: Sentences Neb Rev. Stat

§§ 29-2520 and 29-2522 (Reissue 1979) are not unconstitutional because

the sentencing hearing may be held and the sentence may be imposed

cither by the trial judge or a sentencing pane! consisting of the trial

judge and two other district judges

10 Death Penalty. Sentences The imposition of the death sentence in

this case is yustified by the application of the standards provided by Neb

Rev Stat § 29-2523 (Reissue 1979) as interpreted and limited by the

definitions of this court

Appeal from the District Court for Douglas County:

Joun E. Crark, Judge. Affirmed.

Thomas M. kenney. Douglas County Public De-

fender, and Stanley A. Krieger for appellant.

Paul L. Douglas, Attorney General, and J. Kirk

Brown for appellee.

Heard before Krivosna, C. J., BosLaucu, McCown,

CLINTON, BRODKEY, WHITE, and Hastincs, JJ.

Cuinton, J.

The defendant, Carey Dean Moore, age 22, was

charged with two counts of first degree murder as

follows: (1) On August 22, 1979, having killed Revel

Eugene Van Ness, Jr., in the perpetration of or attempt

to perpetrate a robbery, and (2) on August 27, 1979,

having killed Maynard D. Helgeland in the perpetra-

tion of or attempt to perpetrate a robbery. After

waiving a trial by jury, defendant was tried by the

court and found guilty on both counts. Pursuant to the

provisions of Neb. Rev. Stat. §§ 29-2520 et seq. (Reissue

1979), a sentencing hearing was held on May 22, 1980,

before a pane! of three judges, including the trial judge.

On June 20, 1980, the defendant was, on each count,

sentenced to the penalty of death by electrocution.

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459

App. 2

The case has come to this court for automatic review.

The defendant assigns the following alleged errors: (1)

The Nebraska statutes providing for capital punish-

ment are unconstitutional because the death sen-

tence is per se unconstitutional and prohibited by the

eighth and fourteenth amendments to the U.S. Con-

stitution and article I, § 9, of the Bill of Rights of the

Nebraska Constitution. (2) Neb. Rev. Stat. §§ 29-2519

through 29-2523 (Reissue 1979), providing the condi-

tions under which the death penalty may be imposed,

are unconstitutional because they do not provide for

a jury determination of the existence of the aggra-

vating and mitigating circumstances described in the

statutes and the appropriateness of the death penalty.

(3) Sections 29-2523 et seq. are unconstitutionally

vague and indefinite, and appellate interpretation

has not removed this ambiguity. (4) The sentencing

panel of judges did not properly apply to the evidence

in the case the aggravating and mitigating circum-

stances as defined by statute and the interpretations p. 460

of this court. (5) The panel erred in its review of

homicide cases in which the death penalty was not

imposed, claimed by the defendant to be similar to the

case at bar, because the pane! limited its review in

accordance with our opinion in State r. Williams, 205

Neb. 56, 287 N.W.2d 18 (1979). (6) The death penalty

Statute is unconstitutional because it limits the mitigat-

ing factors which can be considered by the sentencing

tribunal. (7) A conviction and sentence in a capita!

case cannot be sustained unless it appears beyond a

reasonable doubt that no error in the factfinding of the

trial contributed in any way to the determination of

guilt. (8) slatutes are unconstitutional because

they do not require the State to prove beyond a rea-

sonable doubt that mitigating factors do not exist.

(9) Ti provision of the statutes providing that the

sentencing phase may be heard before either the judge

who presided at the trial or before a sentencing pane!

of three judges, including the triai judge, is uncon-

Stitutional because it provides no guidelines for the

determination of when the sentencing is to be done by a

single judge and by a panel. (10) The sentence of death

is excessive and should be reduced to life imprisonment.

We affirm the judgment and sentences.

The defendant did not introduce any evidence during

the trial of the case. Therefore. there is no significant

conflict on the issue of guilt. The defendant confessed

commission of the two killings in taped interrogations

by the police, which were introduced in evidence. It is

not claimed that these confessions were involuntary.

An outline of the evidence, however, is necessary to

a discussion of assignment (4) and in order that we

may perform our independent function of determining

whether the imposition of this particular death

penalty is appropriate under the statutory standards.

and to assure the death penalty is not imposed in an

arbitrary and capricious manner.

Both of the victims were cabdrivers, and the modus

operandi in each case was similar. About August 20, Pp. 461

1979, the defendant purchased the handgun with which

the murders were committed. He acquired the gun

by purchasing it from a cabdriver who had pawned

the gun. The defendant and the seller went together

to the pawn s where the gun was redeemed, the

defendant furnishing the money for the redemption

and paying the seller an additional $50. The gun was

then test-fired.

re

We now quote from the findings made by the sen-

tencing panel in its order, which findings are fully

supported by uncontroverted evidence: “The defend-

ant’s own statements, in his confession to Officers

O'Donnell and Thompson while in custody at Charles

City, lowa, indicate that these crimes had been in the

planning stage for at least a day or two before the

Van Ness homicide. Apparently on the evening prior

to the Van Ness murder, the defendant had called a

number of cabs from a telephone booth somewhere

on Farnam Street in the downtown Omaha area to

see how quickly each would respond to his call. The

defendant then hid somewhere in the vicinity to await

each cab’s arrival, at which time he checked the cab to

determine whether the driver would be a suitable

victim, 1... not too young, since the defendant stated

that it was easier for him to shoot an older man rather

than a younger man nearer his own age. On the evening

of the Van Ness homicide, the defendant's plan was to

call one cab at a time from the Smoke Pit restaurant,

and, if the driver who responded ‘wasn't too old,’ the

defendant would just not identify himself as the fare

for which the cab had been summoned. When Mr.

Van Ness arrived at the Smoke Pit on August 22, 1979,

the defendant determined that this was the driver who

would be robbed and shot because ‘he wasn't too

young’.

“A similar pattern of events unfolded on August 26,

1979. The defendant went to the Greyhound Bus depot

at 18th and Farnam Streets in Omaha that evening,

and, when he saw a lone cab with an older driver parked

at the taxi stand outside the depot, he got into the

cab and directed the driver to take him to the Benson

area. According to the defendant, this particular cab

and driver were selected both because there were no

other cabs at the taxi stand at the time, thus decreasing

the chances of the defendant's being identified, and

because the driver was an older man. The defendant

then stated that, as previously discussed, he had

planned ahead of time to rob and shoot the driver of

whichever cab he selected.” In his confessions the

defendant stated that he killed each of the victims in

order that the victim would not be able to identify him

as the robber.

The body of Van Ness was found at Dam Site 16 near

Omaha on the morning of August 22, 1979. The body

of Helgeland was found in his cab in Omaha about

7:30 a.m. on August 27, 1979. The defendant was

positively identified as one of two persons getting into

the Van Ness cab at the Smoke Pit restaurant in

Omaha earlier that morning. The other person was

identified as his younger brother. He was positively

identified by fishermen as being in the cab at Dam

Site 16 before the slaying. when Van Ness asked

directions in order to take the defendant to the place

at the dam where he wished to go. The gun, identified

by expert witnesses as the one used in the two slayings,

was found in the defendant's possession in a stolen

automobile when the defendant was apprehended in

lowa on August 29, 1979.

The contention of the defendant that the death

penalty is in all circumstances unconstitutional

as constituting crue! and unusua! punishment has been

rejected by the U.S. Supreme Court and this court

on a number of occasions. We need not respond to that

argument other than citing some of the pertinent

precedents. Gregg r. Georgia, 428 U.S. 153, 96 S. Ct.

2909, 49 L. Ed. 2d 859 (1976); Proffitt rv. Florida,

428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976),

- 462

“pPpe %

State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977);

State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977):

State vr. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979);

State v. Anderson and Hochstein, 207 Neb. 51, 296

N.W.2d 440 (1980); State vr. Harper, 208 Neb. 568,

304 N.W.2d 663 (1981).

The defendant cites no judicial precedent or con-

stitutional provision supporting a proposition that the

U.S. and the Nebraska Constitutions require that,

in order that the death penalty may be constitutionally

imposed, a jury make the factual determinations per-

taining to aggravating and mitigating circumstances.

We-have expressly rejected that contention in State r.

Simauts, 197 Neb. 549, 250 N.W.2d 881 (1977). We

there said at 559, 250 N.W 2d at 888: “As we understand

the federal and the state constitutional provisions,

they do not require or even suggest that jury sentencing

is constitutionally required. Whatever the relative

merits of sentencing by a judge or jury may be, we

need not consider them. Our concern is the constitu-

tionality of the Nebraska system, under the federal

and state Constitutions. The relative merits of the

one or the other is for legislative and not judicial

determination. We find the sentencing procedure

provided by the Nebraska statute does not violate either

the Nebraska or the federal Constitution.” The U.S

Supreme Court has, at least implicitly, rejected the

contention that jury determination of the sentence is

required. Proffitt v. Fiorida, supra. In that case the

Court said in 428 U.S. at 252: “The basic difference

between the Florida system and the Georgia system is

that in Florida the sentence is determined by the trial

judge rather than by the jury. This Court has pointed

out that jury sentencing in a capital case can perform

an important societal function, Witherspoon r. Illinois,

391 U.S. 510, 519 n. 15 (1968), but it has never sug-

gested that jury sentencing is constitutionally re-

quired. And it would appear that judicial sentencing

should lead. if anything, to even greater consistency

in the imposition at the trial court level of capital pun-

ishment, since a trial judge is more experienced in

sentencing than a jury, and therefore is better able to

impose sentences similar to those imposed in analogous

cases.”

The defendant's third contention, asserting that the

definitions of aggravating and mitigating circum-

stances in the statute are so vague and indefinite as

to be unconstitutional, has been addressed by this

court in a series of cases which refine, clarify, and

restrict that definition in response to such arguments.

State v. Simants, supra; State v. Rust, supra; State rv.

Stewart, supra; State rv. Holtan, 197 Neb. 544, 250

N.W.2d 876 (1977); State vr. Otey, supra; State rv.

Anderson and Hochstein, supra; State v. Harper, supra.

It is clear that the general scheme of § 29-2523 meets

the requirements laid down in Furman rv. Georgia,

408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

See, Gregg vr. Georgia, supra; Proffitt vr. Florida, supra.

We need at this time address only the specific argu-

ments which the defendant makes in this case. The

defendant's third, fourth, and fifth assignments overlap

and so we will discuss them together.

It is necessary at this time to make some reference

to the sentencing panel's order and the findings

therein. The panel made a detailed analysis of the

evidence, the provisions of § 29-2523, and the decisions

of this court interpreting that statute. It considered

each statutory provision separately and made factual

p-

- 463

464

findings based upon the evidence adduced at trial!

and at the sentencing hearing by both the State and the

defendant. On the basis of that analysis, it made

specific findings as to which aggravating and which

mitigating circumstances existed in this case, including

the applicability of the statutory provisions which are

disjunctive.

We will later, where necessavy, make reference to the

details of that analysis. At this point, it will suffice

to quote the panel's summary of affirmative findings.

“The sentencing panel specifically finds that, with

regard to the murder of Revel Van Ness, Jr.. ag-

gravating circumstances (b) and (d) have been found

to exist beyond a reasonable doubt. By way of clari-

fication, the panel more specifically finds that the

second clause of aggravating circumstance (1b)

('... committed . . . to conceal the identity of the

perpetrator’) and the latter portion of aggravating

circumstance (1d) (' . . . manifested exceptional

depravity by ordinary standards of morality and

intelligence])) are applicable in this case.

“With regard to the murder of Maynard Helgeland,

the sentencing pane! specifically finds that aggravating

circumstances (a), (b), and (d) have been found to exist

beyond a reasonable dovbt. More specifically, the

panel finds that the second clause of aggravating

circumstance (1a) (‘The offender . . . has a substantial

history of serious assaultive or terrorizing criminal

activity’) is applicable to the Helgeland homicide,

based on the murder four days earlier of Revel Van

Ness, Jr. In addition, the second clause of aggravating

circumstance (1b) and the latter portion of aggravat-

ing circumstance (1d) are applicable to the Helgeland

homicide, as they were to the Van Ness homicide.”

The panel also reiterated generally its previous,

more specific findings that none of the statutory mitigat-

ing factors existed, but stated that “the family back-

ground and upbringing of the defendant are entitled to

consideration as a mitigating factor ....” It found that

factor did not outweigh the aggravating circum-

stances.

The defendant's claim of vagueness in the statutory

language and deficiency in appellate refinement of

definition is directed at the language of § 29-2523(1 Xd),

which states: “The murder was especially heinous,

atrocious, cruel, or manifested exceptional depravity

by ordinary standards of morality and intelligence.”

The defendant argues that under the holding of the

U.S. Supreme Court in Godfrey vr. Georgia, 446 U.S.

420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), the above

Statutory language, even as limited by the interpreta-

tions of this court, is vague and imprecise, thus per-

mitting a standardless imposition of the death penalty.

We now turn to an examination of Godfrey r. Georgia.

supra. Under Georgia law, if the jury finds the de-

fendant guilty, i is instructed by the court at a

separate sentencing phase of the trial on the law of

aggravating and mitigating circumstances. The jury

then recommends a sentence to the court. As part of

that recommendation it must specifically “ate the

supporting aggravating circumstance or circ» stances

which it finds exist beyond a reasonable doubt. The

jury in that case found beyond a reasonable doubt

“that the offense of murder was outrageously or

wantonly vile, horrible and inhuman.”” 446 U.S. at 426.

The trial court accepted the jury's recommendation,

and the Supreme Court of Georgia affirmed. The U.S.

Supreme Court reversed the judgment insofar as it

levied a death penalty.

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466

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We now quote from or paraphrase pertinent por-

tions of the Godfrey opinion: “Under Georgia law,

a person convicted of murder may be sentenced to

death if it is found bevond a reasonable doubt that

the offense ‘was outrageously or wantonly vile, horrible

or inhuman in that it involved torture. depravity of

mind. or an aggravated battery te the victim.’ Ga.

Code § 27-2534.1(bK7) (1978). In Gregg rv. Georgia,

428 U.S. 153, the Court held that this statutory ag-

gravating circumstance (§ (bX7}) is not unconstitu-

tional on its face. Responding to the argument that the

language of the provision is ‘so broad that capital

punishment could be imposed in any murder case.’

the joint opinion said:

“‘It is. of course. arguable that any murder involves

depravity of mind or an aggravated battery. But this

language need not be construed in this way, and there

is no reason to assume that the Supreme Court of

Georgia will adopt such an open-ended construction’

[Citation omitted.]" 446 U.S. at 422-23.

In Godfrey v. Georgia, supra, the defendant was

found guilty and sentenced to death for the murders of

his wife and mother-in-law. Briefly, the circumstances

of the crimes were that the defendant and his wife were

having marital difficulties. When he threatened her

with a knife, she left the family home. She com-

menced an action for divorce, and a court hearing

was set. Before the hearing, the defendant, on several

occasions, asked his wife to return. At some point

during this period she moved in with her mother. The

petitioner believed that the mother was actively in-

terfering with a reconciliation. On the day before

the crimes, the defendant's wife called him. She said

reconciliation was impossible, and allegedly demanded

all proceeds from the planned sale of their home. A

similar telephone conversation took place about an

hour later. The wife at that time allegedly stated that

her mother supported her position. The wife then

hung up the telephone. Defendant obtained a shotgun

and walked to his mother-in-law’s trailer home. He

saw his wife, mother-in-law, and young daughter

playing cards. He fired through a window, killing his

wife. He entered the trailer and struck his 11-year-

old daughter with the gun barre! and then shot his

mother-in-law. Both of the women died instantly from

gunshot wounds to the head.

“The issue now before us is whether, in affirming

the imposition of the sentences of death in the present

case, the Georgia Supreme Court has adopted such a

broad and vague construction of the § (bX7) aggravat-

ing circumstance as to violate the Eighth and Four-

teenth Amendments to the United States Constitu-

tion.” 446 U.S. at 423. “In the case before us, the

Georgia Supreme Court has affirmed a sentence of

death based upon no more than a finding that the

offense was ‘outrageously or wantonly vile, horrible

and inhuman.” There is nothing in these few words,

standing alone, that implies any inherent restraint

on the arbitrary and capricious infliction of the death

sentence. A person of ordinary sensibility could fairly

characterize almost every murder as ‘outrageously

or wantonly vile, horrible and inhuman.’ Such a view

may. in fact, have been one to which the members of

the jury in this case subscribed. If so, their pre-

conceptions were not dispelled by the trial judge's

sentencing instructions. These gave the jury no guid-

ance concerning the meaning of any of § (bX7)'s

terms. In fact, the jury's interpretation of § (bX7)

can only be the subject of sheer speculation.

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468

id at eid

“The standardless and unchanneled imposition of

death sentences in the uncontrolled discretion of a

basically uninstructed jury in this case was in no way

cured by the affirmance of those sentences by the

Georgia Supreme Court. Under state law that court

may not affirm a judgment of death until it has in-

dependently assessed the evidence of record and deter-

mined that such evidence supports the trial judge's or

jury's finding of an aggravating circumstance. Ga.

Code § 27-2537(ck2) (1978)." 446 U.S. at 428-29.

The U.S. Supreme Court then went on to discuss

previous opinions of the Georgia Supreme Court

interpreting Ga. Code Ann. § 27-2534.01(bxK7) (Rev. ,

1978) and noted that in those cases the Georgia court

had appropriately defined and !imited the applica-

tions of the § 27-2534.01(bK7) language. It held that

in the Godfrey case. the Supreme Court of Georgia had

not followed the criteria previously established, and

concluded: “Nothing said on appeal by the Georgia

Supreme Court indicates that it took a different view

of the evidence. The circumstances of this case.

therefore. do not satisfy the criteria laid out by the

Georgia Supreme Court itself in the Harris and

Blake cases. In holding that the evidence supported

theury’s § (bX7) finding. the State Supreme Court

simply asserted that the verdict was ‘factually sub-

stantiated.” 446 U.S. at 432. The Court further

stated: “The petitioner's crimes cannot be said to

have reflected & consciousness materially more

‘depraved’ than that of any. person guilty of murder.

His victims were killed instantaneously. They were

members of his family who were causing him extreme

emotional trauma.” 446 U.S. at 433.

The Court, in n. 15, stated at 432-33: “The sentences

of death in this case rested exclusively on § (bX7). Ac-

cordingly, we intimate no view as to whether or rot the

petitioner might constitutionally have received the

same sentences on some other basis. Georgia does not,

as do some States, make multiple murders an aggravat-

ing circumstance, as such.”

In short, the U.S. Supreme Court's vacation of the

death sentence in Godfrey rested upon: (1) Lack of

precise instructions to the jury and impreciseness of

the jury's findings. (2) Failure of the Supreme Court

of Georgia to follow its own previously established

criteria interpreting § 27-2534.1(bX7). (3) The court's

apparent failure to independently review the factual

findings of the trial court and jury. (4) As the U.S.

Supreme Court noted, the victim was causing the

actor “extreme emotional trauma,” and the crime was

motivated by overwhelming passion. (It should be noted

the factual circumstances in Godfrey are quite dif-

ferent from the one before us.) (5) The jury was not

instructed on the restricted definition of § 27-2534.1

(bX7), which had been adopted by the Georgia Supreme

ourt.

The holding of the U.S. Supreme Court in Godfrey

clearly does not control in the case before us for a

number of reasons. First, the sentencing panel in the

case at bar made very specific findings by way of

meticulous analysis of the evidence and careful

application of the statute as well as this court's prior

interpretations thereof. The panel is not an unin-

structed jury. Second, the imposition of the death

penalty in the case before us did not rest wholly upon

a finding of the existence of aggravating circum-

stance (1d) of § 29-2523, which we will discuss in

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469

wee 2

more detail later since it is the heart of the defendant's

argument. Instead, the sentence in this case is sup-

ported by the existence of several aggravating cir-

cumstances completely supported by uncontroverted

evidence. Third, the factua! circumstances of the

murders in our present case are quite different from

those in Godfrey, as we have discussed earlier. Fourth,

this court does, as we hereafter set forth, review and

independently confirm the panel's findings. None

of the factors leading to reversal in Godfrey exist in

this case.

We now turn to the defendant's claim of vagueness.

The U.S. Supreme Court in Godfrey did not overrule

its previous holding in Gregg vr. Georgia, 428 US.

153. 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The

language of the Georgia statute, § 27-2534.1(bx7).

was not unconstitutional on its face. Aggravating

circumstance (1d) of § 29-2523 Inerally. and as inter-

preted by this court, describes in the disjunciive two

separate circumstances which may operate in con-

junction with or independent of one another. The

first circumstance is that the murder was especially

heinous. atrocious. or cruel. We have said that this

circumstance is directed to the “pitiless crime which

is unnecessarily torturous to the victim” and to cases

where torture. sadism, or the imposi‘ion of extreme

suffering exists. State rv. Stewart, 197 Neb. 497, 250

N.W.2d 849 (1977): Stote ¢. Rust. 197 Neb. 528, 250

N.W.2d 867 (1977). In this case the sentencing panel

found that aggravating circumstance did not exist.

We agree. The second circumstance pertains to the state

of mind of the actor. In State vr. Stewart, supra, we

said the second instance indicates a situation “where

depravity is apparent to such an extent as to obviously

offend all standards of morality and intelligence”

(syNabus of the court), and in State rv. Holtan, 197

Neb. 544, 250 N.W.2d 876 (1977), it indicates a state of

mind “totally and senselessly bereft of any regard

for human life” (svllabus of the court). The sentencing

panel found the second circumstance did apply. We

agree that the following circumstances exhibit a

state of mind exceptionally depraved and totally and

senselessly bereft of regard for human life: (1) The

murders here were coldly planned as a part of the

robberies. (2) The evidence clearly supports the

conclusion that the murders were to be repetitive. i.e.,

the defendant intended to continue on his selected

course of conduct so long as his needs required. (3)

The victims were selected on the basis of certain

characteristics which made it easier for the defendant

to shoot them, namely, their ages. His unstated con-

clusion was that a hurnan life in the middie years is less

valuable than a younger life.

The sentence in this case does not rest wholly upon

the findings with reference to circumstance (1)d) of

§ 29-2523. As the sentencing pane! found, and as we

independently find, additional independent aggravat-

ing circumstances exist. In both the Van Ness and the

Helgeland murders, the crimes were committed to

conceal the identity of the perpetrator. § 29-2523(1\b).

This, Moore acknowledged, was one of his motives for

the killings. In the Helgeland murder there existed yet

a third aggravating circumstance, a substantial

history of violence, as demonstrated by the Van Ness

murder a few days earlier. § 29-2523(1Ma). The sen-

tencing panel carefully analyzed this element in

accordance with our prior interpretations. State r.

Rust, supra; State v. Holtan, supre. ln Holtan we

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said at 546. 250 N.W.2d at 879: “‘History’ refers to the

individual's past acts preceding the incident for which

he is on trial and ‘substantial,’ . . . refers to an actual,

material, and important history of acts of terror of a

criminal nature. It does not refer to the particular

incident involving the homicide for which he is subject

to sentence.” See, State rv. Perry, 199 Neb. 656, 261

N.W.2d 95 (1977).

The defendant argues that in imposing the sentence

of death. the pane! did not apply the provisions of 1978

Neb. Laws. L.B. 711, §§ 29-2519 to 29-2521.04. This

argument is founded in part upon the premise that

in State ¢. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979),

this court did not properly interpret L.B. 711.

The act in question provides in part: “(5) In order to

compensate for the lack of uniformity in charges which

are filed as a result of similar circumstances it is

necessary for the Supreme Court to review and analyze

all criminal homicides committed under the existing

law in order to insure that each case produces a result

similar to that arrived at in other cases with the same or

similar circumstances.” § 29-2521.01.

“The Supreme Court shall within a reasonable time

after July 22. 1978, review and analyze al! cases

involving criminal homicide committed on or after

April 20, 1973. Such review and analysis shall examine

(1) the facts including mitigating and aggravating

circumstances, (2) the charges filed, (3) the crime

for which defendant was convicted, and (4) the sen-

tence imposed. Such review shal! be updated as new

criminal homicide cases occur.” § 29-2521.02.

“The Supreme Court shall, upon appeal, determine

the propriety of the sentence in each case involving a

criminal homicide by comparing such case with

previous cases involving the same or similar cir-

cumstances. No sentence imposed shal! be greater than

those imposed in other cases with the same or similar

circumstances. The Supreme Court may reduce any

sentence which it finds not to be consistent with

sections 29-2521.01 to 29-2521.04. 29-2522. and

29-2524." § 29-2521.03.

“Each district court shall provide al! records re

quired by the Supreme Court in order to conduct its

review and analysis pursuant to sections 29-2521.01

to 29-2521.04, 29-2522. and 29-2524.” § 29-2521.04.

In State v. Williams, supra, we held that L.B. 711

required this court to review only cases in which the

defendant was found guilty of first degree murder, and

in State ¢. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979).

we held that the procedure is applicable in this court

only when the death penalty is imposed. The defendant,

now argues that our reviews have been inadequate,

and, in his brief, states: “The concern of the Nebraska

Legislature was directed, in part, in insuring that there

is uniformity throughout the State in death sentencing.

Section 29-2521.01, R.S. Supp. 1978. Obviously, to

consider only first-degree murder convictions is to

exclude 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 prosecu-

torial discretion in interpreting the charging facts.

It is a hollow review indeed if these cases are exc!uded

from review. It becomes a cruel facade if a defendant's

case is reviewed only against other capital cases and

not against lesser homicides which might involve the

same or similar circumstances.”

p. 472

p. 473

ArprPe 4V

In State v. Williams, supra at 76, 287 N.W.2d at 29,

we said: “To interpret that language of L.B. 711 literally

would create insurmountable constitutional problems.

In view of the disposition made here, it is unnecessary

to discuss constitutiona! issues.” We did not there

elaborate on the constitutional problems except

to indicate that they relate to the constitutional

division of powers between the branches of government,

specifically mentioning prosecutoria! discretion. The

prosecutor is obviously a member of the executive

branch of government. We now find it necessary to

delineate the reasons why a literal application of

L.B. 711 would unconstitutionally encroach upon

the judicial funetion. In so doing, we will define

more precisely the limits within which L.B. 711 may

constitutionally be applied.

We first state the underlying legal principles and

then illustrate their application. Neb. Const. art. II.

§ 1. provides: “The powers of the government of this

state are divided into three distinct departments, the

legislative, executive and judicial, and no person or

collection of persons being one of these departments,

shall exercise any power properly belonging to either

of the others, except as hereinafter expressly directed

or permitted.” a similar division of powers, under the

U.S. Constitution, is held to exist by implication.

Corwin's The Constitution and What It Means Todav

at 6-7. 204 (14th ed. H. Chase & C. Ducat 1978):

Hempton & Co. v. United States, 276 U.S. 394, 48

S. Ct. 348, 72 L. Ed. 624 (1928); Hayhurn’s Case, 2

Dall. 409, 2 U.S. 409, 1 L. Ed. 436 (1792).

The separation of powers doctrine imposes restric-

tions upon the legislative branch to limit the judicial

functions of the courts. The Legislature cannot. by

subsequent legislation, divest rights which have

vested by virtue of a judgment. City of Waywe rv.

Adams, 156 Neb. 297, 56 N.W.2d 117 (1952). It cannot

enact legislation to retroactively open or vacate a

judgment. Mooney ¢. Drainage District, on rehearing

134 Neb. 192, 278 N.W. 368 (1938). cert. denied 305

U.S. 622. 59 S. Ct. 84. 83 L. Ed. 398 (1938). The limits

of the jurisdiction conferred upon the Supreme Court

by the Constitution may not be increased or extended

by legislative enactment. State er rel. Wright r.

Barwa. 133 Neb. 676. 276 N.W. 676 (1937), Miller

r. Wheeler, 33 Neb. 7°75. 51 N.W. 137 (1892); Stote vr.

Hall, 47 Neb. 579. 66 N.W. 642 (1896). It cannot change

procedures established by the Constitution. State cr

rel. e. Ellis, 156 Or. 83, 66 P.2d 995 (1937). It cannot

interfere with the judicial function of adjudicating

the fact of an acquittal. Jw re Johuston, 3 Cal. 2d 32.

43 P.2d 541 (1935). It may not reverse a judgment.

Roberts vr. The State, 160 N.Y. 217, 54 N.E. 678 (1899).

lt may not direct the disposition of a case in which

jurisdiction has attached. State r. Costen, 141 Tenn.

539, 213 S.W. 910 (1919). It is to be clearly implied

from the foregoing principles that the Legislature

cannot direct the disposition of one case by the factual

determinations in another.

It is apparent from the language of § 29-2521.01(5)

and § 29-2521.02 that the Legislature attempts to

impose a mandate upon this court to look behind

prosecutorial judgments concerning the charges to be

filed, jury verdicts determining the particular degree

of homicide, and then, based upon our independent

findings of the facts in those adjudicated cases, to

determine the penalty in the case before us.

p-

P-

474

475

“apPpre 44

We must examine the constitutional import of the

foregoing legislative purpose. In examining prosecu-

torial discretion we would of necessity have to in-

dependently gather evidence. The gathering of evidence

is not a judicial function but one of the executive.

We would then determine what charges we think should

have been filed. Again, this is an executive function

of the prosecutor. We would make a judgment about

the chances of a conviction as against an acquittal,

again an executive function. We would need to weigh

the advisability of a plea bargain to secure a con-

viction on a lesser charge in order to avoid a likely

acquittal of all charges. These are al! clearly executive

and not judicial functions.

It must be borne in mind that not all homicide

convictions result in appeals to this court. The following

illustrates the Legislature's intrusion into the judicial

function under L.B. 711. If a person is charged with

murder in the first degree but convicted of a lesser

degree of homicide, and if L.B. 711 is to be applied

literally, we would then, for purpeses of reviewing the

case before us, disregard the factfindings of the jury

in the so-called “analogous” case. Such a procedure

would be constitutionally objectionable for a number of

reasons. First, it would require this court to find facts

in a case not before it. Secondly, it would constitute an

attempt by the Legislature to make the factfindings of

one case determinative of the sentence in another case

on review. It is plain that under the principles we have

earlier cited, that legislation which attempts to

achieve such results is an intrusion on the judicial

function, contrary to the separation of powers doc-

trine, and thus violates article II, § 1.

Another effect of L.B. 711 would be to unconstitu-

tionally restrict the appellate review powers of this

court under Neb. Const. art. I, § 23, as that legislation

attempts to bind this court by requiring it to apply

sentences imposed in some “analogous” case in a

district court. It is clear that applying such a standard

would restrict a defendant's right to an independent

review by this court under article 1, § 23, of the Bill

of Rights of our Nebraska Constitution. This section

provides: “In al! cases of felony the defendant sha!!

have the right of appeal! to the Supreme Court; and in

capital cases such appeal shall operate as a super-

sedeas to stay the execution of the sentence of death,

until further order of the Supreme Court.”

Upon this closer review of L.B. 711, it is clear the

Legislature in that act attempts to exercise the judicial!

function in violation of the Constitution. Sections

2 and 3 of L.B. 711 must be restricted in their applica-

tion to a comparison in this court of only those cases

in which the defendant in the District Court has been

convicted of murder in the first degree.

L.B. 711 thus construed is coextensive with our

duty under the federal Constitution, under our own

state Constitution, and under the statutory provisions

for automatic review to determine in the death

penalty cases which come before us whether the

provisions of § 29-2523 are properly applied, and

to assure the death penalty is not arbitrarily and capri-

ciously imposed. Furman r. Georgia, 408 U.S. 238,

92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); Godfrey r-.

Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d

398 (1980); State r. Simants, 197 Neb. 549, 250 N.W.2d

881 (1977). We will. of course, continue to make

comparisons. Each District Court will continue to

furnish to this court, in accordance with our previous

administrative order, the records of all convictions of

first degree murder not appealed to this court.

§ 29-2521.04. If either the State or the defendant

P-

476

“we”

wishes to call to the attention of the sentencing judge

or sentencing panel, for the purposes of comparison,

the facts and sentence in any case of first degree

homicide which has not been appealed to this court, it

should be done at the sentencing hearing by means of

admissible evidence for which proper foundation

is laid. This, of course, will mean, in most cases where

the fact is not admitted or is challenged, producing

the official records or pertinent portions thereof of the

case which is to be called to our attention.

At the sentencing hearing in this case the defendant

introduced an exhibit related to the case of State

vr. Cecil Henry Floyd in the District Court for Hamil-

ton County, Nebraska. This is one of the unappealed

cases reviewed by this court in State r. Williams, 205

Neb. 56, 287 N.W.2d 18 (1979). Although not speci-

fically argued, it c'early appears the apparent purpose

of introducing the exhibit was to raise the issue of

whether an isolated case in which the death penalty

perhaps should have been imposed, but was not,

becomes the standard which governs all capital

cases before this court.

In the exhibit just referred to above is a two-page

type-written summary, obviously prepared by counsel,

which among other things contains the following

statement: “Source of Information,” followed by the

name of the prosecutor and defense counsel in that

case. The summary otherwise purports to show that

Floyd, previous to the Nebraska homicide (felony

murder in the course of a robbery), was serving a

term of life imprisonment for homicide in Indiana and

had pled guilty to three »emicides in Florida. We

have again reviewed the official transcript of the

Floyd case. Proof wat made in that case of the

Indiana conviction only and none of the circumstances

of the Indiana case are shown by the record. The only

pertinent other evidence adduced at the sentencing

hearing was the testimony of the victim's mother, in

which she requested the death penalty not be imposed.

and the testimony of the defendant Floyd, in which he

stated he had not intended to kill the victim but that

the gun discharged in the course of a struggle when the

victim attempted to take the weapon away from him.

the defendant also recited a history of menta! illness.

In the Floyd case the sentencing judge, in ruling

upon an objection to the presentence investigation

report, stated he would taxe into consideration only

those matters therein which were properly before

him, i.e., insofar as other murder convictions were

concerned, those that were proved by proper evidence

and not the hearsay testimony of defense counsel and

prosecutor. The sentencing judge did not make detailed

findings as to aggravating and mitigating circum-

stances. He apparently regarded th» imposition of the

penalty as being within his “discretion.” He imposed a

sentence of life imprisonment, to be served consecutive

to the Indiana life sentence and consecutive to any

other sentence the defendant might serve elsewhere.

allowing no credit on the Nebraska life sentence for

any time served elsewhere. The court directed that the

defendant be returned to Indiana and that “holds” be

placed by the Indiana sheriff as well as any other

states’ sheriffs in which the defendant was wanted.

It may be that the death sentence should have been

imposed in the Fluyd case had proper proof been

made, but such a determination is impossible from the

limited record before us. The record showed no

competent proof of the alleged Florida homicides

P-

Pp-

477

478

or of the circumstances surrounding them. Nor was

there any proof of the circumstances surrounding the

Indiana case. If the State wishes to prove as an ag-

gravating circumstance a conviction of the defendant in

other states, it must do so by authenticated copies of

such conviction unless. of course, the fact is admitted.

Our reading of Godfrey does not lead us to an under-

standing that an isolated, unappealed trial court judg-

ment is to be the standard by which all other sentences

must be judged. The U.S. Supreme Court's purpose

in that case was to mandate the death penalty not be

inflicted arbitrarily and capriciously. The Court

imposed upon the states the duty of defining the

circumstances under which the death penalty should

be imposed in such a way as to obviate “standardless”

sentences. Section 29-2523, as interpreted and limited

by this court, does afford “specific and detailed

guidance” in the imposition of sentence and makes

“rationally reviewable the process for imposing a

sentence of death.” Godfrey v. Georgia, 446 US.

420, 428, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).

The defendant argues that the sentencing panel

erred in finding that a mitigating factor, to wit, “(2Ma)

The offender has no significant history of prior criminal

activity,” did not exist. The record disclosed that the

defendant had one previous felony conviction, auto

theft. for which he served a term of 1 to 2 years in

the Nebraska Pena! and Correctional Complex, and

that he admitted having forged approximately $1,100

in checks prior to the crimes involved here. The.

pane! also mentioned that he had a juvenile record

of lesser offenses. The defendant argues that “con-

sideration” of the latter was error. We hold that this

particular juvenile record should be disregarded.

What, if any, offenses in a juvenile record should

be considered and under what category of aggravating

or mitigating factors will obviously depend upon the

nature of the act. Nonetheless, the commission of two

felonies cannot support a finding that there is no

significant prior criminal history. In any event, this

mitigating factor, even if it were said to exist, does

not. even when considered with family history, out-

weigh the aggravating factors.

The records and the convictions since State r.

Williams. 205 Neb. 56, 287 N.W.2d 18 (1979), which

we have reviewed disclose that the standards of

§ 29-2523 are being carefully applied by the sen-

tencing judge or panel.

The defendant asserts that § 29-2523 is unconstitu-

tional because it limits the mitigating factors which

may be considered in determining sentence. There is no

basis for this contention. Section 29-2521 provides in

part: “[E)vidence may be presented as to any matter

that the court deems relative to sentence, and shal!

include matters relating to any of the aggravating or

mitigating circumstances set forth in section 29-2523.

Any such evidence which the court deems to have

probative value may be received.” In State v. Holtan,

197 Neb. 544, 250 N.W.2d 876 (1977), we specifically

held that the consideration of mitigating factors or

circumstances was not limited by the statute. Evidence

in mitigation need only be relevant and probative.

The defendant cannot complain of a provision so ob-

viously open-ended in the accused's favor.

p-

479

480

“we ©

The defendant's seventh assignment is as follows:

“A conviction and sentence in a capital case cannot

be sustained unless it appears, beyond a reasonable

doubt, that no error in the fact-finding of tria) con-

tributed in any way to the jury's determination of

guilt.” The defendant's argument on this point is

so convoluted as to literally make no sense. The defend-

ant has made no claim of error in the factfinding

process leading to the determination of guilt. We

have examined the record and found none. The

defendant was guilty beyond any doubt at all.

The defendant's eighth assignment asserts that the

State has the burden of proving beyond a reasonable

doubt that no mitigating factor exists. He cites no

authority for this proposition. None seems to exist.

There is no evidence or claim that the State sup-

pressed any favorable evidence. If there were any

mitigating factors other than those shown, the

defendant is in the best position to know and reveal

those factors.

The death sentence in this case is affirmed.

AFFIRMED

kKrivosna, C. J.. and Wuirte, J.. concur in that por-

tion of the opinion affirming the conviction, and

dissent from that portion of the opinion affirming the

imposition of the death penalty. We would have sen-

tenced the appellant to be confined for the balance of

his natural life.

481

App. 15

28-303. Murder in the first degree: penalty. A person commits mur-

der in the first degree if he kills another person (1) purposely and

with deliberate and premeditated malice, or (2) in the perpetration of

or attempt to perpetrate any sexual assault in the first degree, arson,

robbery, kidnapping, hijacking of any public or private means of

transportation, or burglary, or (3) by administering poison or causing

the same to be done; or if by willful and corrupt perjury or suborna-

tion of the same he purposely procures the conviction and execution

of any innocent person. The determination of whethe: murder in the

first degree shall be punished as a Class I or Class IA felony shall be

made pursuant to sections 29-2520 to 29-2524. °

28.2519. Stctement of intent. The Legislature hereby finds that it is

rezsonable and necessary to establish mandatory standards for the

imposition of the sentence of death, that the imposition of the death

perelty in every instance of the commission of the crimes specifed

in section 2& 303 fails to allow for mitigating factors which may dic-

tate against the penalty of death, and that the rational imposition of

the death sentence requires the establishment of specific legsiative

gu. zelines to be applied in indvidual cases by the court The Le gisia-

ture therefore determines that the death penalty should be in.posed

onty for the crimes set forth in section 2& 303 and, in addition, that it

shall only be imposed in those instances when the aperavating cu-

cum stances existing in connection with the crime outweigh the mita

gating curccumstances, es set forth in sections 29.2520 to 29.2524

29-2520. Murder; person found guilty: sentence: determinction.

Whenever any person is found guilty of a violation of section 28 303,

the istrict court shall within seven days fix a date for hearing on

determination of the sentence to be imposed. Such determination

shall be made by: (1) The judge who presided at the trial or who

accepted the plea of guilty, (2) a panel of three judges including the

judge who presided or accepted the plea, the two additional judges

having Leen designated by the Chief Justice of the Supreme Court

afier receiving a request therefor trom the presiding judge, or (3) a

panel of three district judges named by the Chief Justice of the

Supreme Court when such Chief Justice has dete:mined that the

presiding judge is disabled or disqualified after receiving a sugges-

tion of such disability or disqualification from the clerk of the court in

which the finding of guilty was entered. :

29-2521. Determinction of sentence; procedure. In the proceeding

for determination of sentence, evidence may be presented as to any

matter that the court deems relevant to sentence, and shal) include

matters relating to any of the aggravating or mitigating civcum-

stances set forth in section 29-2523. Any such evidence which the

court deems to have probative value may be received. The state and

the defendant or his counsel shall be permitted to present argument

for or against sentence of death. The court shall set forth the general

order of procedure at the outset of the sentence determination

proceeding.

29-2521.01. Legislotive findings. The Legislature hereby finds that

(1) Life is the most valuable possession of a human being, and

before taking it, the state should apply and follow the most scrupu-

lous standards of fairness and uniformity,

(2) The death penalty, because of its enormity and finality, should

never be imposed arbitrarily nor as a result of loca) prejudice or pub-

lic hy stena;

(3) State law should be applied uniformly throughout the state and

since the death penalty is a statewide law an offense which would not

result in a death sentence in one portion of the state should not icsult

in death in a different portion,

App. io

(4) Charges resulting from the same or similar circumstances have,

in the past, not been uniform and have produced radically diffe ning

results, and

(5) In order to compensate for the Jack of uriformity in charges

which are filed as a result of similar circumstances it is necessary for

the Supreme Court to review and analyze all criminal homicides

committed under the existing Jaw in order to insure that each case

produces a result similar to that arrived at in other cases with the

same or similar circumstances.

29-2521.02. Criminal homicide cases; review and cnalysis by

Supreme Court: manner. The Supreme Court shall within a resson-

able time after July 22, 1978, review and analyze all cases involving

criminal homicide committed on or after Apnl 20, 1973. Such review

and analysis shall examine (1) the facts including mitigating and

aggravating circumstances, (2) the charges filed, (3) the crime for

which defendant was convicted, and (4) the sentence imposed Such

review shal) be updated as new criminal homicide cases occur.

28 252103. Criminal homicide cases; oppeal: sentence: Supreme

Court review. The Supreme Court shall, upon appeal, determine the

proprety of the sentence in each case involving a criminal homicide

by comparing such case with previous cases involving ‘he same or

similar circumstances. No sentence imposed shall be greater than

those imposed in other cases with the same or similar circumstances.

The Supreme Court may reduce any sentence which it finds not te be

consistent with sections 29 2521 0} to 29-252) 04, 29 2522, and 29.2524

29.2521.04. Criminal homicide ccses: Supreme Court review ond

enelyze: district court: provide records. Each district court shall pro-

vide all records required by the Supreme Court in order to conduct

its rewew and analysis pursuant to sections 29-2521.0] to 29-252) 04,

29-2522, and 29-2524

29-2822. Sentence: decth lile imprisonment determination of death

in writing. After hearing all of the evidence and arguments in the

sentencing proceeding, the judge or judges shall fix the sentence at

either death or life imprisonment, but such determination shall be

based upon the following considerations:

(1) Whether sufficient aggravating cucumstances exist to justify

imposition of a sentence of death,

(2) Whether sufficient mitigating circumstances exist which

approach or exceed the weight given to the aggravating cuvcum-

stances, or

(3) Whether the sentence of death is excessive or disproportionate

to the penalty imposed in similar cases, rae wrataee both the crime

and the defendant. . -

In each case in which the court imposes the death sentence, the

determination of the court shal] be in writing and shall be supported

by written findings of fact based upon the records of the trial and the

sentencing proceeding, and referring to the aggravating and —

ing curcumstances involved in its determination. —

29.2523. Aggrovoting ond mitigating circumstances, defined. The

eggravating and mitigating circumstances referred to in sections 29

252) anc ~° 2522 shall be as follows:

()) Acgravating Circumstances:

(a) The offender was previously convicted of another murder or a

crime involving the use or threat of violence to the person, or has a

substantia) history of serious assaultive or terrorizing cnminal

activity;

(b) The murder was committed in an apparent effort to conceal the

commission of a crime, or to conceal the identity of the iene of

a crime;

led at led

(c) The murder was committed for hire, or for pecuniary gain, or

the defendant hired another to commit the murder for the defendant;

(4d) The murder was especially heinous, atrocious, cruel, or mani-

fested exceptional depravity by ordinary standards of morality and

intelligence;

(e) At the time the muider was committed, the offender a)so com-

mitted another murder,

({) The offender knowingly created a great risk of death to at Jeast

several persons;

(g) The victim was a Jaw enforcement officer or a public servant

having custody of the offender or another, or

(h) The crime was committed to disrupt or hinder the lawful exer-

cise of any governmental function or the enforcement of the laws.

(2) Mitigating Circurnstances:

(a) The offender has no significant history of prior criminal

activity,

{b) The offender acted under unusual pressures or influences or

under the dumination of another person,

(c) The crime was committed while the offender was under the

inNluence of extreme mental or emotional disturbance,

(d) The age of the defendant at the time of the crime;

(e) The offender was an accomplice in the crime committed by

another person and his participation was relatively minor,

({) The victim was a participant in the defendant's conduct or con-

sented to the act, or :

(g) At the time of the crime, the capacity of the defendant to appre-

ciate the wrongtulness of his conduct or to conform his conduct to the

requirements of law was impaired as a result of menta) illness,

mental) defect, or intoxication.

29-2524. Existing procedures: oct does not repeal. Nothing in sec-

tions 24-342, 28-303, 28.333, 29-2519 to 29.2546 and sections 29-252} 0) to

23 2521.04 shall Be rn any way deemed to repeal or limit existing pro-

cedures for automatic review of capital cases, nor shall it in any way

limit the right of the Supreme Court to reduce a sentence of death to

a sentence of life imprisonment in accordance with the provisions of

section 29-2308, nor shall it limit the nght of the Board of Pardons to

commute any sentence of death to a sentence of life imprisonment.

29.2524.0}. Criminal homicide: report filed by county attorney: con-

tents. Each county attorney shall file a report with the State Court

Administrator for each criminal homicide case filed by him. The

report shall include (1) the initial charge filed, (2) any reduction in

the initial charge and whether such reduction was the result of a ples

bargain or some other reason, (3) dismissals prior to trial, (4) out-

come of the trial including not guilty, guilty as charged, guilty ofa

lesser included offense, or dismissal, (5) the sentence imposed, (6)

whether an appeal was taken, and (7) such other information as may

be required by the State Court Administrator. Such report shall be

filed not later than thirty days after ultimate disposition of the case

by the court. ‘

29-2524.02. State Court Administrator; criminal homicide report: pro

vide forms. The State Court Administrator shal) provide al) form

necessary to carry out sections 29-2524.0) and 29-2524.02. ° F

29-2528. Punishment is capital oppeok clerk of district court: tran-

script: prepare: file: no charge: Clerk of Supreme Court: writ of error:

issue. In cases when the punishment is capital, no petition in error

shall be requized and within the time prescribed by section 25-1931

for the commencement of proceedings for the reversing, vacating, or

modifying of judgments, the clerk of the district court in which the

conviction was had shall prepare and file with the Clerk of the

Supreme Court a transcript of the record of the proceedings, for

which no charge shall be made. The Clerk of the Supreme Court

shall, upon receipt of the transcript, issue a writ of cr101, Such writ

shall be returnable before the Supreme Court and the payinent of a

APP +

29.2528. Conviction. punishment is copitol writ of error; suspension

of execution heoring. In all cases of conviction when the punishment

shall be capital, the judges or court sha) allow such writ of error asa

matter of right, and shall order a suspension of the execution until

such writ of error shall be heard and determined Upon hearing such

wnit of error, it shall order the prisoner to be discharged, a new trial

to be had, or appoint a day certain for the execution of the sentence,

as the nature of the case may require,

THE CONSTITUTION OF THE UNITED STATES

Eighth Amendment

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

Fourteenth Amendment

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the priv’ leges

Or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

RECEIVED

MAR 2 7 1982

OFFICE OF THE CLERK

SUPREME COURT, US.

——S

wo. 81-GYU 3S"

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

CAREY DEAN MOORE,

Petitioner,

vs.

THE STATE OF NEBRASKA,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

The Petitioner, Carey Dean Moore, asks leave to file the

attached Petition for Writ of Certiorari to the Supreme Court of

the State of Nebraska withou. prepayment of costs and to proceed

in forma pauperis pursuant to Rule 46.

The Petitioner's Affidavit in support of this Motion, with

certified copies of previous orders in this regard from the

District Court of Douglas County, Nebraska, is attached hereto.

CAREY DEAN MOORE, Petijtioner,

306 Hall of Justice

Omaha, Nebraska 68183

One of His Attorneys

RECEIVED

MAR 27 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

CAREY DEAN MOORE, NO.

Petitioner,

AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

vs.

THE STATE OF NEBRASKA,

eee eee ee ee

Respondent.

I, Carey Dean Moore, being first duly sworn, depose and say

that I am the Petitioner in the above entitled case; that in support

of my motion to proceed by petition for writ of certiorari to the

Supreme Court of the State of Nebraska without being reguired to

prepay fees, costs or give security therefor, I state that be sause

of my poverty I am unable to pay the costs of said proceedings or

to give security therefor and that I believe I am entitled to redress.

That I was convicted by the District Court of Douglas County,

Nebraska at trial by jury of two counts of First Degree Murder and

was sentenced to death on each First Degree Murder charge. I am

presently incarcerated in the Nebraska Penal and Correctional Complex

in Lincoln, Nebraska.

That in the District Court of Douglas County, Nebraska, I

requested the Court to appoint counsel since I was unable to afford

the cost of an attorney or other costs arising out of the charges

against me and that the Douglas County District Court did, upon my

request, appoint the Douglas County Public Defender's Office to

represent me in the matter of the criminal charges pending against me.

That upon my appeal to the Supreme Court of Nebraska, I

continue to be represented by the Douglas County Public Defender's

Office since I was unable to bear the costs of continued legal action

in this case.

Because of my present incarceration in the Nebraska Penal

and Correctional Complex on two sentences of death, I am not employed

nor do I have any cash or assets with which to finance proceedings

in my case.

I understand that false statements in this Affidavit will

subject me to penalties for perjury.

Coos, LA Ln, B20?

<> tet DER wooRE

Co— CARE MOORE

ve

SUBSCRIBED AND SWORN to before me this . 5 “ day of March,

1962.

/

Ay. Gruen wer ay - Soane ef Seba 2) —

F JANES R_LYONS ubl ye

“=, DR My Comm Esp Jury 7.1983

“i

IN THE DISTRICT COURT OF DOUGLAS COUNTY, NEBRASKA

poc. 106 NO. 54

THE STATE OF NEBRASKA,

106 C55

Plaintiff,

vs. POVERTY AFFIDAVIT

CAREY D. MOORE,

Defendant.

STATE OF NEBRASKA)

) ss

COUNTY OF DOUGLAS)

The undersigned, being first duly sworn on oath, deposes

and states that I am the defendant in the above entitled cause of

action, that I am completely without funds or property of any kind

which I can use to defend myself, and that, therefore, I request

that the costs and fees in connection with my case be charged to

Pougles County, Nebraska, for the reason I am unable to pay said

costs.

Further, I request appointment of counsel to represent me

and to advise me as to my rights under the law.

fendant

SUBSCRIBED AND SUORN to before me this 27th day of September ,

1979.

Fl istwc udge

IN DISTRICT COURT

DOUG! AS COUNTY NEBRASKA

‘ SFP 28 1979

4

By tr,

a | 7 iw

DISTRICT COURT JOURNAL NOLL 59] race 27

JULY TERM, AD. 1979 Thursday, September 27ap, 1979

THE STATE OF NEBRASKA, Plaintiff, )

) INFORMATION:

vs. ) 106-55 Murder In The First

) Degree - Two Counts

Carey Dean Moore, Defendant, )

Public Defender is appointed to represent the defendant.

Defendant, present with counsel, Joseph Bataillon, was duly

arraigned and stood mute. The Court enters a plea of not guilty for the

defendant.

Cause set for trial to the next jury panel or as soon thereafter

as it may be reached.

Defendant remanded to the custody of the Sheriff.

By agreement of counsel, defendant's motion for discovery and

the State's motion for reciprocal discovery are sustained.

Mutual and reciprocal discovery ordered.

PAUL J. HICKMAN, JUDGE

THE STATE OF NEBRASKA, }

) 5S.

COUNTY OF DOUGLAS. )

I, RUDY J. TESAR, Clerk of the District Court, Fourth

Judicial District of Nebraska, within and for said County, do hereby

certify that the above and foregoing are true and correct copies

of POVERTY AFFIDAVIT and ORDER APPOINTING PUBLIC DEFENDER TO

REPRESENT DEFENDANT, ETC., filed for and entered of record and

designated as Criminal Docket 106 Number 055,

in a cause in said Court wherein THE STATE OF NEBRAS¥A is Plaintiff

and carpEY DEAN MOORE is Defendant

as the same appears fully upon the records and in the files of said

Court now in my charge remaining as Clerk aforesaid.

IN TESTIMONY WHEREOF, I have hereunto set my hand

and affixed the seal of said Court

at Omaha, Nebraska, this 22nd day

of March A. D. 19 82

BUDY J. TESAR

py Ahan (vy WW. Ub.

Clerk

Deputy