Opposition Brief — Nebraska v. Rust

ee

Wet.

SUPREME Uh oy Wses Speruae: Mee:

39S)

S TAT EEN Oa KA

T-} sks LOneLy

JOHNEE MERUS TS

Res pDOnGgencL

SUDMILLeCEsDy.s

MI Lom oer ABLAN Mec Ounse leo LeRecord

BARBARA STHIELEN:

QUESTIONS PRESENTED FOR REVIEW

Whether the Nebraska Supreme Court erred in finding that the

life sentence imposed at Rust’s capital resentencing hearing

served to acquit him of the harsher sentence of death.

Whether the Nebraska Supreme Court erred in finding that this

Court’s holdings in Bullington v. Missouri, 451 U.S. 430, 101

S.Ct. 1852, 68 L.Ed.2d 270 (1981), Arizona v. Rumsey, 467 U.S.

203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), and Poland v.

Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986),

make the protections of the double jeopardy clause applicable

to the capital resentencing procedure involved herein, thereby

preventing the State of Nebraska from challenging, as

"excessively lenient", the life sentence imposed in this case.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT

I. THE DOUBLE JEOPARDY CLAUSE BARS ANY RECONSIDERATION

OF A LIFE SENTENCE IMPOSED AFTER A CAPITAL

SENTENCING TRIAL oe Te ee wl Ie

CONCLUSION

Page

iii

17

T. A R

T. E OF

Arizona v. Rumsey, 467 U.S. gis 104 S.Ct. ages

Ok tee Oa tee AS a ke Me is <= ee ae

t Vv. ssouri, 451 U.S. 430, 101 S.Ct. 1852,

68 L.Ed. 2d 270 et Pies s aK eg Se ee, Ge ee OE ie

Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749,

To Maes ee bee Eeewe). 2 6 3 we 4 to ocw. By ii, 12, 33, 14, 15

Rust v. Hopkins, 984 F.2d 1486 (8th Cir. 1993),

Gert. denied, .... U.S. ___, 113 &.Ct. 2950,

en MO IR oe cl Nene ee enue eg

State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986) ..... 1

State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982) ...... 1

State v. Rumsey, 136 Ariz. 166, 665 P.2d 48 (1983) 9

State v. Rust, 247 Neb. 503 (1995) 5

State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977) 1

STATUTES CITED

Neb.Rev.Stat. §$28-303 (Reissue 1989) .......24+4+++e+-. 1

Neb.Rev.Stat. §29-2320 et. seq. (Cum. Supp. 1992) ....... 4

Neb.Rev.Stat. §29-2519 et. seq. (Reissue 1989) 1

Neb.Rev.Stat. §29-2520 (Reissue 1989) .......4.4+4+4+e+-. 1

Neb.Rev.Stat. $29-2521 (Reissue 1989) ........24++++-. 1

Neb.Rev.Stat. $29-2522 (Reissue 1989) .......4.4++.e+ 2,3

Neb.Rev.Stat. §29-2523(1) (Reissue 1989) ........+4+4. 1

iii

TATEMENT OF THE E

A defendant convicted of capital murder in Nebraska can be

sentenced either to death or life imprisonment. Neb. Rev. Stat.

§28-303 (Reissue 1989). Special statutory procedures must be

followed in the determination of sentence. Neb. Rev. Stat.

§29-2519 et. seq. (Reissue 1989). The determination may be made

by the ected judge alone or by a panel of three judges, including

the trial judge. Neb. Rev. Stat. §29-2520 (Reissue 1989).

A separate proceeding is held wherein evidence is presented

regarding any of the statutorily defined aggravating and mitigating

circumstances. The state and the defendant are permitted to

present argument for or against a sentence of death. Neb. Rev.

Stat. §29-2521 (Reissue 1989).

The prosecution is limited to proof of the statutorily

defined aggravating circumstances Neb. Rev. Stat. §29-2523(1)

(Reissue 1989), and the existence of any such circumstance(s) must ie:

be proven beyond a reasonable doubt. State v. Simants, 197 Neb.

549, 250 N.W.2d 881 (1977). The defendant may offer any

evidence in mitigation and is not limited to the statutory

mitigating circumstances. State v. Joubert, 224 Neb. 411, 399

N.W.2d 237 (1986). State v. Moore, 210 Neb. 457, 316 N.W.2d 33

(1982).

Neb. Rev. Stat. §29-2522 (Reissue 1989) provides that:

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

circumstances 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 circumstances; or

a

(3) Whether the sentence of death is

excessive or disproportionate to the

penalty imposed in similar cases,

considering both the crime and the

defendant.

In each case in which the court imposes

the death sentence, the determination of

the court shall 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 mitigating

circumstances involved in its determination.

The sentencing panel in Rust’s case considered the evidence

in light of the statutory aggravating and mitigating

circumstances, and also considered the non-statutory mitigating

circumstances proffered by the defendant. (Appendix to Petition

p- 30).

The panel unanimously found that aggravating circumstance

(1)(h) (“the crime was committed to disrupt or hinder .. . the

enforcement of the laws"), and the first prong of aggravating

circumstance (1)(a) ("the offender was previously convicted of

- a crime intoivins ti use or threat of violence to the

person ...") were applicable in this case beyond a reasonable

doubt. (Appen ix to Petition pp. 32, 38, 46). The panel also

found that mit ating circumstance (2)(c) ("the crime was

committed whi’ re offender was under the influence of extreme

mental or emoti. 1 disturbance") was applicable in this case.

(Appendix to Petition p. 40). The Court determined that the

non-statutory mitigating factors were entitled to "little, if

any, weight." (Appendix to Petition p. 45)

Following the above procedure as mandated by Neb. Rev.

Stat. §29-2522 (Reissue 1989), the sentencing panel determined

that the two aggravating circumstances existing in this case

were “not sufficient to justify the imposition of a death

sentence." (Appendix to Petition p. 47).

The panel stated, in addition, that "the weight we accord

to mitigating circumstance (2)(c) approaches the weight we give

to the existing aggravating circumstances. On that basis, we

conclude that a sentence of death would not be appropriate in

this case." (Appendix to Petition p. 47).

Claiming that the sentencing panel erred in its considera-

tion of various aggravating circumstances, the state appealed to

the Nebraska Supreme Court urging remand for "further evaluation

of an appropriate sentence for Rust." The Court rejected the

state’s attempt to appeal this case pursuant to Neb. Rev. Stat.

§29-2320 et. seq. (Cum. Supp. 1992), which authorizes the

prosecution to appeal a sentence believed to be "excessively

lenient."

The Nebraska Supreme Court held:

It is the life sentence imposed at the

resentencing hearing which served to

acquit Rust of the harsher death sentence.

Accordingly, the holdings of the U.S.

Supreme Court in Bullington, Poland and

Rumsey make the protections of the Double

Jeopardy Clause applicable to the capital

resentencing procedure involved and prevent

the State from challenging as excessively

lenient the life sentence imposed in this

case.

(Appendix to Petition p. 16).

MMARY OF THE ARGUMENT

On October 30, 1975, Respondent Rust was sentenced to

death in connection with his conviction for the offense of

felony murder. The granting of federal habeas corpus relief

was affirmed by the Eighth Circuit Court of Appeals. Rust v.

Hopkins, 984 F.2d 1486 (8th Cir. 1993), cert. denied, __ U.S.

—__., 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993). Following a

Capital resentencing hearing, wherein the sentencing panel

found two aggravating circumstances and one mitigating

circumstance, the evidence was deemed insufficient to justify

the death penalty. Rust received é« life sentence. The State

of Nebraska appealed, arguing that the life sentence was

"excessively lenient" and urging the Nebraska Supreme Court to

remand the matter to the trial court for "further evaluation of

an appropriate sentence for Rust."

The Nebraska Supreme Court found that the life sentence

imposed at the resentencing hearing served to acquit Rust of

the harsher death sentence. The Court held that this Court’s

holdings in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct.

1852, 68 L.Ed.2d 270 (1981), Arizona v. Rumsey, 467 U.S. 203,

104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), and Poland v. Arizona,

476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986) made the

protections of the Double Jeopardy Clause applicable to Rust’s

capital resentencing and prevented the state from challenging

the life sentence as "excessively lenient." State v. Rust, 247

Neb. 503 (1995).

In its petition for certiorari filed herein, the state

argues that the Nebraska Supreme Court’s resolution of this

question is contrary to rules of law and the analysis contained

in prior rulings of this Court. The Petitioner alleges that the

state’s only burden at a capital sentencing is to prove facts

sufficient to establish the existence of aggravating

circumstances. Petitioner misstates the law, totally ignoring

that its ultimate burden is one of persuading the sentencer that

death is the appropriate penalty.

The Petitioner’s attempt to distinguish the facts of this

case from those in Poland is illusory, and the argument completely

disregards the principles previously enunciated by this Court on

the issue involved herein. This case is squarely controlled by

Bullington, Rumsey and Poland. The petition for writ of

certiorari filed herein is wholly frivolous and contains no

novel question meriting this Court’s consideration.

THE DOUBLE JEOPARDY CLAUSE BARS ANY RECONSIDERATION

OF A LIFE SENTENCE IMPOSED AFTER A CAPITAL SENTENCING TRIAL.

In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852,

68 L.Ed.2d 270 (1981), this Court held that because the sentenc-

ing proceeding at the petitioner’s first trial was like a trial

on the issue of guilt or innocence, the protection afforded by

the Double Jeopardy Clause to one acquitted by a jury was also

available, with respect to the death penalty, upon retrial.

Id. at 447, 101 S.Ct. at 1862.

This Court noted that Missouri law provided only two

possible sentences for a defendant convicted of capital murder:

death or life imprisonment. The Missouri statutes contained

substantive standards to guide the discretion of the sentencers

and afforded procedural safeguards to a convicted defendant. A

separate proceeding was required to be held before the jury that

had found the defendant guilty, wherein evidence of statutory

aggravating and mitigating circumstances was to be heard. The

jury was to consider whether any of the statutory aggravating or

mitigating circumstances were present; whether any aggravating

circumstances that did exist were sufficient to warrant the death

penalty; and whether any mitigating circumstances that did exist

outweighed the aggravating circumstances. A jury that imposed a

sentence of death was required to designate in writing the

aggravating circumstance or circumstances that it found beyond a

reasonable doubt. The Missouri statutory scheme also

required that the jury be convinced beyond a reasonable doubt

that any aggravating circumstance or cizcematanle that it

found to exist were sufficient to warrant the imposition of the

death penalty. Id. at 435, 101 S.Ct. at 1855-1856.

This Court noted that the jury was not given unbounded

discretion, but was presented with a choice between two alterna-

tives, and standards to guide the making of that choice.

Further, the prosecution did not simply recommend a sentence,

“it undertook the burden of establishing certain facts beyond a

reasonable doubt in its quest to obtain the harsher of the two

alternative verdicts." Id. at 439, 101 S.Ct. at 1858. The

sentencing proceeding was, therefore, "itself a trial on the

issue of punishment so precisely defined by the Missouri

statutes." Id. at 439, 101 S.Ct. at 1858.

This Court stated that:

By enacting a capital sentencing

procedure that resembles a trial on the

issue of guilt or innocence,

Missouri explicitly requires the jury

to determine whether the prosecution

has "proved its case." .. . Chief

Justice Bardgett, in his dissent from

the ruling of the Missouri Supreme Court

majority, observed that the sentence

of life imprisonment which petitioner

received at his first trial meant that

“the jury has already acquitted the

defendant of whatever was necessary

to impose the death sentence."

(Citation omitted) We agree.

A verdict of acquittal on the issue of

guilt or innocence is, of course,

absolutely final. The values that underlie

this principle .. . are equally applicable

when a jury has rejected the State’s claim

that the defendant deserves to die.

Id. at 445-446, 101 S.Ct. 1861.

In Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81

L.Ed.2d 164 (1984), this Court held that the Double Jeopardy

Clause prohibited the State of Avicces from sentencing respon-

dent to death after his life sentence was set aside on appeal,

notwithstanding the fact that the failure to initially impose

the death penalty was based on a misconstruction of an

aggravating circumstance under the capital sentencing law.

That decision was squarely controlled by the ruling in

Bullington v. Missouri, supra. The Court noted that Arizona’s

capital sentencing procedure shared the trial-like characteris-

tics of the Missouri proceeding which triggered double jeopardy

protection.

In Rumsey, supra, the defendant had been convicted of armed

robbery and first degree murder. The trial judge alone

conducted a separate sentencing hearing in connection with

Arizona’s capital sentencing scheme, which involved the weighing

of aggravating and mitigating circumstances. The state argued

that three aggravating circumstances were present. Defendant

countered that no aggravators were present, but that several

mitigating factors were. The sentencing judge found that no

aggravating or mitigating factors existed, and the defendant was

sentenced to life imprisonment. Defendant was also sentenced to

a consecutive term of 21 years for the armed robbery.

Defendant appealed the imposition of consecutive sentences

and the state cross-appealed, arguing that the trial court had

committed an error of law in interpreting one of the aggravating

circumstances. The Arizona Supreme Court concluded that the

trial court had in fact misinterpreted one of the aggravating

factors. Consequently, the sentence of life imprisonment was

set aside and the matter remanded for resentencing. Following

resentencing procedures in the trial court, defendant was

sentenced to death.

On further appeal to the Arizona Supreme Court, defendant

argued that the imposition of a sentence of death, after he had

effectively been "acquitted" of death at his initial sentencing,

violated the Double Jeopardy Clause of the Fifth Amendment as

applied to the states by the Fourteenth Amendment. The Arizona

Supreme Court agreed, concluding that under Bullington v.

Missouri, supra, defendant’s sentence of death violated the

constitutional prohibition against double jeopardy. State v.

Rumsey, 136 Ariz. 166, 665 P.2d 48 (1983). Defendant was once

again sentenced to life imprisonment.

This Court agreed with the Arizona Supreme Court that,

under the interpretation of the Double Jeopardy Clause adopted

in Bullinaton v. Missouri, supra, the imposition of the death

penalty on Rumsey would be unconstitutional. This Court found

that:

The double jeopardy principle relevant to

respondent’s case is the same as that invoked

in Bullington: an acquittal on the merits by

the sole decisionmaker in the proceeding is

final and bars retrial on the same charge.

Application of the Bullington principle

renders respondent’s death sentence a

violation of the Double Jeopardy Clause

because respondent’s initial sentence of life

imprisonment was undoubtedly an acquittal on

the merits of the central issve in the

proceeding - whether death was the appropriate

punishment for respondent’s offense.

Id. at 211-212, 104 S.Ct. at 2310.

This Court further noted that “an acquittal on the merits

- as such, bars any retrial of the appropriateness of the

death penalty." Id. at 212, 104 S.Ct. at 2310.

This Court recognized that an error of law had been made by

the trial court in arriving at its original sentence of life

imprisonment. However, such error did not dictate a different

result.

In making its findings, the trial court relied on a

misconstruction of the statute defining the pecuniary

gain aggravating circumstance. Reliance on an error

of law, however, does not change the double jeopardy

effects of a judgment that amounts to an acquittal

on the merits. "(T]he fact that ‘the acquittal may

result from erroneous evidentiary rulings or erroneous

interpretations of governing legal principles’...

10

affects the accuracy of that determination, but it

does not alter its essential character." United States

v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197, 57

L.Ed.2d 65 (1978) (quoting id., at 106, 98 S.Ct., at

2201 (BRENNAN, J., dissenting)). Thus, this Court’s

cases hold that an acquittal on the merits bars

retrial even if based on legal error.

Id. at 212, 104 §.Ct. at 2310.

It was also noted that a capital sentencing proceeding

is not made any less like a trial because of the availability of

appellate review. Such a review, including the reweighing of

aggravating and mitigating circumstances, does not "make the

appellate process part of a single continuing sentencing

proceeding." Id. at 210, 104 S.Ct. at 2309.

In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 930

L.Ed.2d 123 (1986), the petitioners robbed a bank, killed two

guards, and were convicted of first degree murder.

At a separate hearing, the trial judge found that the

“pecuniary gain" statutory aggravating circumstance related

only to contract killings and was therefore not applicable. The

Court did find the "especially heinous, cruel or depraved"

statutory aggravating circumstance to be present and, on that

basis, sentenced the petitioners to death. While the Arizona

Supreme Court reversed and remanded for a retrial on other

grounds, it found that the evidence was insufficient to support

the “especially heinous" circumstance. It further found,

however, that the trial court erred in limiting the "pecuniary

gain" circumstance to contract killings and that, if petitioners

ll

were again convicted, the judge could find this circumstance

present.

On remand, the petitioners were again convicted of first

degree murder and the trial judge again sentenced them to death,

finding the existence of both the "pecuniary gain" and

“especially heinous" aggravating circumstances.

The Arizona Supreme Court found the evidence still insuffi-

cient to support the "especially heinous" circumstance, but

sufficient to support the "pecuniary gain" circumstance. The

Court affirmed, rejecting Petitioners’ argument that double

jeopardy barred reimposition of the death penalty.

This Court granted certiorari to consider the question and

held that the trial judge’s rejection of the "pecuniary gain"

circumstance was not an "acquittal" of that circumstance for

double jeopardy purposes and did not foreclose its consideration

by the reviewing court. It was further held that because the

reviewing court did not find the evidence legally insufficient

to justify imposition of the death penalty, there was no death

penalty “acquittal” by that court and the Double Jeopardy Clause

did not, therefore, foreclose a second sentencing hearing at

which the “clean slate" rule applied. Id. at 158, 106 S.Ct. at

1756.

This Court noted that:

Under Bullington and Rumsey, therefore, the

relevant inquiry in the cases before us is

whether the sentencing judge or the reviewing

court has "decid{ed] that the prosecution has

not proved its case” for the death penalty

and hence has "acquitted" petitioners.

12

Bullington, 451 U.S., at 443, 101 S.Ct.,

at 1860.

Id. at 155, 106 &.Ct. at 1754.

The Court distinguished Poland from Bullington and Rumsey

by pointing out that:

At no point during petitioners’ first

capital sentencing hearing and appeal

did either the sentencing or the reviewing

court hold that the prosecution had

“failed to prove its case" that the

petitioners deserved the death penalty.

Plainly, the sentencing judge did not

acquit, for he imposed the death penalty.

Id. at 155, 106 S.Ct. at 1754-1755.

This Court observed that:

Aggravating circumstances are not separate

penalties or offenses, but are "standards

to guide the making of [the] choice" between

the alternative verdicts of death and life

imprisonment. 451 U.S., at 438, 101 S.Ct.,

at 1858. Thus, under Arizona’s capital

sentencing scheme, the judge’s finding of

any particular aggravating circumstance does

not of itself "convict" a defendant

(i.e., require the death penalty), and the

failure to find any particular aggravating

circumstance does not "acquit" a defendant

(i.e., preclude the death penalty).

It is true that the sentencer must find

some aggravating circunistance before the

death penalty may be imposed, and that the

sentencer’s finding, albeit erroneous, that

13

no aggravating circumstance is present is

an “acquittal” barring a second death

sentence proceeding. Arizona v. Rumsey,

467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d

164 (1984).

Id. at 157, 106 S.Ct. at 1755.

In Poland, this Court pointed out that the concern with

protecting the finality of acquittals is not implicated when a

defendant is sentenced to death, (i.e., "convicted"). The Court

was unwilling to extend Bullington to a point where the capital

sentencing hearing becomes "a set of minitrials on the existence

of each aggravating circumstance." It stated:

Bullington indicates that the proper

inquiry is whether the sentencer or

reviewing court has "decided that the

prosecution has not proved its case"

that the death penalty is appropriate.

(Emphasis in original)

id. at 356, 106 &.Ct. at 1755.

Clearly, the principles enunciated in Bullington, supra,

Rumsey, supra, and Poland, supra, squarely control the

disposition of this case. Nebraska’s capital sentencing

procedure shares the trial-like characteristics of the Missouri

and Arizona proceedings, thereby entitling Rust to the constitu-

tional protection of the double jeopardy clause.

Although the sentencing panel found the existence of two

aggravating circumstances, they were deemed insufficient to

justify imposition of the death penalty. As noted in Poland,

supra, the finding of any particular aggravucins circumstance

14

does not require the death penalty. The sentencers in Rust also

found the existence of one mitigating circumstance, which

approached the weight of the aggravating circumstances.

(Appendix to Petition p. 16).

After scrupulously following the statutory procedure, the

sentencing panel found that the existing circumstances were not

sufficient to justify the imposition of a death sentence.

The sentencers clearly decided that "’. . . the prosecution

had not proved its case’ that the death penalty is appropriate."

(Emphasis in original) Poland v. Arizona, supra, 476 U.S. at

156, 106 §.Ct. at 1755.

The Petitioner’s claim, that the Nebraska Supreme Court’s

resolution of this question is contrary to rules of law and the

analysis contained in prior rulings of this Court, is baseless and

completely without merit.

The state acknowledges that "the distinction between Poland

and Rust’s situation is that Poland ultimately received a

sentence of death prior to appeal and Rust did not", yet boldly

asserts that “our analysis of this Court’s cases on this subject

leads us to believe that such a distinction, standing alone, is

not legally significant and that Rust’s case, like Poland’s, was

capable of remand and resentencing without violation of the

Double Jeopardy Clause." (Petition p. 9).

The Petitioner erroneously claims that "The only burden the

prosecution assumes at the penalty phase is to offer evidence

sufficient to establish beyond a reasonable doubt that one or

more statutory aggravating circumstances are present in the

commission of the murder or the history of that defendant."

(Petition p. 16). This allegation is a misstatement of law. As

is always the case, the state bears both the burden of proving

facts to establish the existence of aggravating circumstances

beyond a reasonable doubt, and the burden of persuasion on the

ultimate issue; that is, convincing the sentencing entity that

death is the appropriate penalty.

The sentencing order makes clear that the state failed to

carry that ultimate burden in Rust’s case. The Petitioner’s

attempt to acknowledge the state’s burden of proving facts to

Support the existence of aggravating circumstances, while

ignoring its ultimate burden of proving the appropriateness of

the death penalty, is artifice. Petitioner’s entire argument

blatantly disregards the clear precedent contained in the prior

rulings of this Court.

In the case at bar, Rust has unequivocally been "acquitted"

of the death penalty, and the Double Jeopardy Clause constitu-

tionally bars any review or reconsideration of that sentence.

16

NCLUSION

The Respondent respectfully submits that the manner in

which the issues were addressed below and the results obtained

do not present any of the special or important considerations

outlined in Supreme Court Rule 10. The petition for certiorari

filed by the State of Nebraska is wholly frivolous and does not

contain any unsettled issue or other grounds meriting this

Court’s consideration. Respondent therefore requests that the

petition for writ of certiorari be denied.

JOHN E. RUST, Respondent

IL/M. FABIAN 6236 - of

Fabian & Thielen

4939 S. 24th St., PO Box 7567

Omaha, NE 68107

(402) 733-7766

Attorneys for Respondent

~

BY:

BARBARA THIELEN - #16673 - of

Fabian & Thielen

4939 S. 24th St., PO Box 7567

Omaha, NE 68107

(402) 733-7766

Attorneys for Respondent