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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981

## Text

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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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),

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“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

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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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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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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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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.

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Co— CARE MOORE

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

1962.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1856%3A2. Public record. Not legal advice.