State v. Rust, 40451

• Citation: 250 N.W.2d 867,197 Neb. 528
• Decision Date: 02 February 1977
• Docket Number: No. 40451,40451
• Parties: STATE of Nebraska, Appellee, v. John Edward RUST, also known as John DeWitt, Appellant.
• Court: Supreme Court of Nebraska

Page 867

250 N.W.2d 867

197 Neb. 528

STATE of Nebraska, Appellee, v. John Edward RUST, also known as John DeWitt, Appellant.

No. 40451.

Supreme Court of Nebraska.

Feb. 2, 1977.

Syllabus by the Court

1. The death penalty is not per se cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States and sections 3 and 9 of the Bill of Rights of the Constitution of Nebraska.

2. Neither the Constitution of the United States nor the Constitution of Nebraska require determination by a jury of the applicability of the aggravating and mitigating factors in determining under the provisions of sections 29--2522 and 29--2523, R.R.S.1943, whether the penalty shall be death or life imprisonment, and the provision for determination of the penalty by the trial judge or a panel of judges after notice and hearing is constitutional.

3. The definitions of aggravating circumstances in section 29--2523, R.R.S.1943, are not too broad or vague and will be given a narrow construction and narrow application, and as so construed and applied are constitutional.

4. The term 'substantial history of serious assaultive or terrorizing criminal activity' within the meaning of aggravating circumstance subsection (1)(a) of section 29--2523, R.R.S.1943, does not include events or occurrences which are part of the circumstance surrounding the current charge, but refers solely to earlier acts.

5. A murder is committed to conceal the commission of another crime when its purpose is to hide the fact that another crime has been committed.

6. A murder is committed for pecuniary gain when the murder itself is motivated primarily by desire for pecuniary gain as in the case of a murder of an insured by the beneficiary of a life insurance policy for the purpose of obtaining the proceeds.

7. The definition of aggravating factors in section 29--2523, R.R.S.1943, will be construed so as not to overlap, that is, the same essential facts should not be construed to constitute two or more aggravating circumstances. It is the apparent legislative purpose that each of the definitions convey a different concept.

8. A murder is especially heinous, atrocious, cruel, or manifests exceptional depravity by ordinary standards of morality and intelligence within the meaning of aggravating circumstance subsection (1)(d), of section 29--2523, R.R.S.1943, when it involves torture, sadism, sexual abuse, or the imposition of extreme suffering. This circumstance applies only to the murder charged and not to collateral or subsequent circumstances. This circumstance is also satisfied where the killing is so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life.

9. A conviction for another murder within the meaning of aggravating circumstance subsection (1)(a), of section 29--2523, R.R.S.1943, does not include an attempt to commit murder.

10. This court will, upon automatic review in capital cases, compare the case under consideration with other capital cases and determine in each instance whether the death penalty is disproportionate.

11. In Nebraska an accomplice in a robbery is not accountable for felony murder in the death of one of his fellow participants who is shot and killed by the police during the robbery or during flight.

12. Knowingly creating a risk of death to several persons includes the circumstance of shooting at several persons.

13. Murder which is committed as part of an attempt by robbers to escape and avoid apprehension by law enforcement officers is committed to disrupt or hinder the enforcement of laws within the meaning of aggravating circumstance subsection (1)(h) of section 29--2523, R.R.S.1943.

Frank B. Morrison, Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, David E. Kendall, Peggy C. Davis, New York City, Anthony G. Amsterdam, Stanford, Cal., for appellant.

Paul L. Douglas, Atty. Gen., Paul W. Snyder, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

CLINTON, Justice.

The defendant, John Edward Rust, also known as John DeWitt, was found guilty by a jury of the following charges: (1) The killing of Michael Kellogg in the perpetration or attempt to perpetrate a robbery; (2) maliciously shooting at Russell Wolf with intent to kill, wound, or maim said individual; (3) maliciously shooting at George E. Allen with intent to kill, wound, or maim the said individual; and (4) maliciously shooting at Joseph Nepodal with intent to kill, wound, or maim said individual. He was sentenced by the trial judge on the last three charges to concurrent terms of not less than 16 2/3 and not more than 50 years in the Nebraska Penal and Correctional Complex. In accordance with the provisions of section 29--2520, R.R.S.1943, a panel of three District Judges, including the judge who presided at the trial, was convened for the purpose of determining the sentence on the murder charge and, after notice and hearing as provided by section 29--2521, R.R.S.1943, the defendant was sentenced to death for the murder. At the sentencing hearing evidence was adduced by both the State and the defendant. Following the hearing and argument, the sentencing panel made findings in writing in accordance with the provisions of sections 29--2522 and 29--2523, R.R.S.1943. Automatic review of the death sentence has come to this court on the murder charge under the provisions of sections 29--2525 and 29--2524, R.R.S.1943. No appeal has been taken on the other three counts.

Killing in the perpetration of or the attempt to perpetrate a robbery is murder in the first degree and is punishable by death or imprisonment during life. § 28--401, R.R.S.1943. That statute provides that the punishment shall be determined in the manner provided by sections 29--2520 to 29--2524, R.R.S.1943.

Defendant is represented by counsel in this court and on his behalf they make the following assignments of error: (1) The death penalty provided by section 28--401, R.R.S.1943, is unconstitutional in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States, and Article I, sections 3 and 9, of the Bill of Rights, of the Constitution of Nebraska, because such sentences are arbitrarily and capriciously imposed in violation of the mandates of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. (2) Capital punishment constitutes cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States and Article I, section 9, of the Bill of Rights, of the Constitution of Nebraska, irrespective of the manner of imposition or how determined. (3) Capital punishment is unconstitutional because a jury determination of the applicability of the aggravating and mitigating factors under sections 29--2522 and 29--2523, R.R.S.1943, is not mandated by our statute. (4) The panel of sentencing judges misapplied the aggravating and mitigating factors in this case. (5) The statutory definitions of aggravating and mitigating factors under section 29--2523, R.R.S.1943, are so vague and indefinite as to be unconstitutional. (6) The death sentence is excessive in this particular case. (7) The trial court erred in (a) not separating the jurors during their voir dire examination; (b) in not sequestering the jury during trial; (c) in denying a request for a continuance; and (d) in denying a request for change of venue.

Assignments (1), (4), and (5) are melded in defendant's argument and all must be covered here even though an assignment comparable to (1) has been covered in State v. Simants, Neb., 250 N.W.2d 881. Assignments (2) and (3) have been adequately dealt with in Simants, and the opinion of the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, fully answers these contentions and they need not be further discussed in this opinion. Determination of the other assignments requires that we briefly summarize the evidence and other pertinent background.

On February 21, 1975, the defendant and two companions, Ronald Raymond Ell and Donald D. Fread, robbed at gunpoint employees of the Hinky Dinky store at 30th and Weber Streets in Omaha, Nebraska. The robbers fled in an automobile. Almost immediately police were alerted and a chase ensued, during which Rust was observed firing at the police cruisers. Two cruisers were struck by the bullets. The cruiser driven by officer Allen was hit by two bullets which passed through the front windshield. Another cruiser driven by officer Nepodal was hit by a bullet which passed through the left rear quarter panel and backseat, and lodged in the right rear door. During the chase the robbers' car became trapped on a residential street when police vehicles blocked both forward progress and retreat.

At that time the robbers' car became stuck in a snowbank. Fread, who was the driver of the get-away car, was shot and killed by the police near the point where the car stopped. Rust and Ell left the car on foot. Police officers Wolf, Allen, and Nepodal, who were the victims named in counts 2, 3, and 4, and others pursued them. Rust continued the fire fight and shot Kellogg, a civilian who had come to the aid of the police. Officer Wolf was severely wounded by Rust. Officer Allen suffered a slight wound. The evidence showed that Ell hid in some bushes adjacent to a residence and surrendered when ordered to do so. Rust took refuge in a backyard and continued to fire at the officers until he was himself wounded. The evidence, both eyewitness and ballistic, showed that Kellogg was killed by Rust and that the bullet which came from his gun was the one that lodged in the police cruiser driven by Nepodal. Kellogg was shot by Rust four times and he was observed to be shooting into Kellogg's body after Kellogg had fallen as a result of an earlier shot fired by...