State v. Holtan, 40638

Citation197 Neb. 544,250 N.W.2d 876
Decision Date02 February 1977
Docket NumberNo. 40638,40638
PartiesSTATE of Nebraska, Appellee, v. Richard D. HOLTAN, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. 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.

2. When the act of killing is totally and senselessly bereft of any regard for human life, it is wanton, deliberate, cruel, and inexcusable.

3. Acts under unusual pressures or influences or under the domination of another person contemplates only outside pressures, not those created by the defendant's own acts.

4. Extreme mental or emotional disturbance means such a disturbance in very great, intense, or severe degree.

5. 'Significant history' does not refer to a slight or inconsequential history of criminal activity but rather to an important, notable, or meaningful history.

6. Youth or extreme age are suggested for consideration as a mitigating circumstance but the term is necessarily relative as it must be considered in the light of varying conditions.

7. Penal statutes should be construed so as to give effect to the plain meaning of the words employed, and where of doubtful meaning, or application, the court should adopt the sense that best harmonizes with the context and the apparent policy and objects of the Legislature.

8. Although a penal statute is required to be strictly construed, it should be given a sensible construction, and general terms therein should be so limited in their construction and application so as not to lead to injustice, oppression, or an absurd consequence.

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.

NEWTON, Justice.

The defendant was charged with first-degree-murder in the perpetration of a robbery and with shooting with intent to kill, wound, or maim. He entered a plea of nolo contendere to both counts, was sentenced to death on the first count, and to serve 15 to 45 years on the second count. On appeal the defendant challenges the constitutionality of Nebraska laws pertaining to the death penalty, asserts the statutes were erroneously applied, and claims the death sentence is excessive. We affirm the judgment of the District Court.

The defendant entered the Dugout Bar in Omaha, Nebraska. In the bar were Larry Loder, the bartender, his friend Linda Ulshafer, and Pete Christensen, a patron. The defendant produced a gun, robbed the cash register of a considerable sum of money, herded the three people present into a restroom, ordered Loder to tie the other two, shot and killed Loder, who was struck twice, wounded Linda Ulshafer, and apparently missed Christensen. Four shots were fired.

In general, the questions regarding constitutionality presented have been dealt with in State v. Rust, Neb., 250 N.W.2d 867. They will not again be considered here except in regard to sections 29--2522 and 29--2523, R.R.S.1943, dealing with aggravating and mitigating circumstances to be considered. Defendant asserts that these sections are vague, indefinite, and subject to discriminatory application. It is true that section 29--2522, R.R.S.1943, contemplates the weighing of the aggravating and mitigating factors and a decision on the death penalty according to which type carries the most weight. This is unavoidably a matter of judgment to be determined by the District Court subject to review. Absolute certainty in such matters is unattainable but the provision in Nebraska law for mandatory review in capital cases is a positive safeguard and insures against error.

The defendant was found to fall within the purview of several of the aggravating circumstances set out in section 29--2523(1), R.R.S.1943. The first is subsection (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 substantial history of serious assaultive or terrorizing criminal activity.' The defendant had been previously convicted for armed robbery, first-degree assault, and three times for bank robbery. All these incidents necessarily involved a threat of violence to the person. He asserts that the terms 'serious assaultive or terrorizing criminal activity' are vague and indefinite. We cannot agree. The words 'serious,' 'assaultive,' and 'terrorizing' are words in common usage with meanings well-fixed and generally clearly understood. The term 'substantial history' is likewise reasonably clear. 'History' refers to the individual's past acts preceding the incident for which he is on trial and 'substantial,' as here used, 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.

The court found the existence of aggravating circumstances under subsection (b) in that the murder was committed by the defendant in an apparent effort to conceal his identity as the perpetrator. Obviously no other reason for the wanton killing was present.

The crime does not qualify as an aggravating circumstance under subsection (c). It occurred during the commission of a robbery but the primary motivation for the killing was not one for pecuniary gain.

The court found that subsection (d) was also applicable in that the crime was especially heinous, atrocious, cruel, and manifested exceptional depravity by ordinary standards of morality and intelligence. Although torture was not involved, it is clear that this element was applicable. The defendant killed, and attempted to kill, unresisting victims of the robbery. The act was totally and senselessly bereft of any regard for human life.

It was wanton, deliberate, cruel, and inexcusable.

Subsection (f) was properly found...

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52 cases
  • State v. Reeves, 81-706
    • United States
    • Supreme Court of Nebraska
    • January 20, 1984
    ......1, 246 N.W.2d 645. State v. Stewart, 197 Neb.497, 250 N.W.2d 849. *State v. Rust. 197 Neb.528, 250 N.W.2d 867. *State v. Holtan, 197 Neb.544, 250 N.W.2d 876. State v. Simants, 197 Neb.549, 250 N.W.2d 881 (Conviction. ......
  • State v. Moore, S-95-485
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    • Supreme Court of Nebraska
    • September 27, 1996
    ...See, State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), cert. denied 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864; State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977), cert. denied sub nom. 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198; State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). ......
  • Giles v. State
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    • April 11, 1977
    ...known that two young persons may vary greatly in mental and physical development, experience and criminal tendencies. State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977). One of these factors may have greater significance than the others in some cases, depending upon the circumstances. Of ......
  • State v. Ryan, S-94-207
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    • July 21, 1995
    ...the terms "substantial history" and "criminal activity" were not adequately narrowed or defined. We disagree. In State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977), cert. denied 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198, the argued that the terms "serious assaultive or terrorizing crimin......
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