State v. Simants

• Decision Date: 02 February 1977
• Docket Number: No. 40642,40642
• Citation: 250 N.W.2d 881,197 Neb. 549
• Parties: STATE of Nebraska, Appellee, v. Erwin Charles SIMANTS, Appellant.
• Court: Nebraska Supreme Court

Page 881

250 N.W.2d 881

197 Neb. 549

STATE of Nebraska, Appellee, v. Erwin Charles SIMANTS, Appellant.

No. 40642.

Supreme Court of Nebraska.

Feb. 2, 1977.

Syllabus by the Court

1. In each case in which the sentencing 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.

2. Jury sentencing in a capital case is not constitutionally required.

3. The sentencing procedure provided by the Nebraska death penalty statute does not violate either the Nebraska or the federal Constitution.

4. The facts upon which aggravating circumstances are based must be proved beyond a reasonable doubt.

5. The rule enunciated in Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632 (1955), on the applicability of the doctrine of reasonable doubt is not applicable to our present death penalty law.

6. The Supreme Court in every case under the new death penalty statute will perform its functions of death sentence review with a maximum of rationality and consistency.

7. The Supreme Court will compare each case under review with those previous cases in which the death penalty has or has not been imposed under the new death penalty statute.

8. Because our statute requires the sentencing authority to specify the factors it relies upon in reaching its decision and provides a meaningful appellate review, death sentences are not imposed capriciously or in a freakish manner in this jurisdiction.

9. The terms 'heinous, atrocious, or cruel' are directed to the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

10. 'Or manifested exceptional depravity by ordinary standards of morality and intelligence' confines this standard only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence.

11. We interpret aggravating circumstance, subsection (f), section 29-2523(1), R.R.S.1943, 'The offender knowingly created a great risk of death to at least several persons,' to cover those situations where the act of the defendant jeopardizes the lives of more than two other persons, such as by the use of bombs or explosive devices, the indiscriminate shooting into groups, or at a number of individuals, or other like situations.

12. We interpret subsection (d), section 29-2523(2), R.R.S.1943, under mitigating circumstances, 'The age of the defendant at the time of the crime,' to refer to a child of tender age, a juvenile, or to a person of advanced years where senility may be a factor.

13. In the balancing of the aggravating and mitigating circumstances, the death penalty will not be imposed simply because the aggravating circumstances may outnumber the mitigating circumstances. Rather, the test is whether the aggravating circumstances in comparison outweigh the mitigating circumstances.

14. The death penalty is not to be imposed if sufficient mitigating circumstances shall approach or outweigh the weight to be given the aggravating circumstances.

15. The test of responsibility for crime is the defendant's capacity to understand the nature of the act alleged to be criminal and the ability to distinguish between right and wrong with respect to the act.

16. The fact that a defendant may have some form of mental illness or deficiency does not of itself constitute a defense or establish lack of responsibility.

17. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the individual has personal knowledge of that matter.

18. We find the Nebraska death penalty statute does not violate any of the provisions of the Nebraska or federal Constitutions.

Keith N. Bystrom, Public Defender, Beatty, Morgan & Vyhnalek, North Platte, 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.

SPENCER, Justice.

This case is before us for review of a death penalty imposed after a jury conviction on six counts of murder in the first degree.

Defendant essentially alleges four assignments of error: (1) The statute under which the sentence was imposed is unconstitutional; (2) the evidence is insufficient to support the findings of the jury; (3) the court erred in excluding the testimony of defendant's ex-wife; and (4) the sentence imposed is excessive and contrary to law. We affirm.

During the course of the afternoon of October 18, 1975, defendant drank at one of the local bars in Sutherland, Nebraska, with members of his family and friends. At approximately 8 o'clock p. m., defendant asked his sister, Mrs. Boggs, to take him to her residence where he was residing. The residence was located next to the residence of Henry Kellie. After returning defendant to her home, his sister returned to the bar. Defendant visited with his 13-year-old nephew, then went to his brother-in-law's bedroom for a .22-caliber rifle. He obtained some shells and loaded it. He then told the nephew to keep the kids in the house, and left the sister's residence.

Some 45 minutes later defendant returned to the sister's home, unloaded the rifle, put it back in place, and wrote a note at the kitchen table, as follows: 'I am sorry to all--it is the best way out--do not cry (sic).' Defendant then told the nephew he had just killed the Kellies, and named them to him. He then had his nephew call his mother, who resided in Sutherland, and defendant told her about the killings. He then went to the home of his parents and told them he had just killed the Kellies. His father went to the Kellie home, came back to his own home, told his wife what he had found, and she called the authorities.

Defendant left his parents' home, went to two downtown bars, drank some beer at each, and returned to a field at the rear of the Boggs' residence. He remained there until approximately 8 a. m. the morning of October 19, 1975. At that time he tried to get in his sister's house and was refused admission. His sister called the authorities to whom he gave a statement.

For the purposes of this appeal it is sufficient to say that defendant attempted to have sexual relations with Florance Marie Kellie, a 10-year-old girl. During the process he shot her in the forehead with a .22-caliber rifle, which caused her death. He then heard the girl's grandfather, James Henry Kellie, approaching. He went to the bedroom doorway and shot him as he approached. He then dragged the body into the bedroom. Shortly thereafter, Audrey Marie Kellie, the child's grandmother, entered the house. Defendant killed her with a shot in the forehead, and the evidence would indicate some sexual molestation. Shortly thereafter, the Kellie's son, David Leroy Kellie, and his two children came to the house. Defendant then killed David and his two children; Daniel Leroy, who was approximately 5 years of age; and Deanna, who was 7 years of age. The evidence would indicate some sexual molestation of Deanna. All deaths were caused by the gunshot wounds.

We initially consider defendant's contention that sections 29-2519 et seq., R.R.S.1943, outlining the capital punishment procedures, are in violation of the Eighth and Fourteenth Amendments to the United States Constitution and sections 3 and 9 of the Bill of Rights of the Constitution of the State of Nebraska. Suffice it to say that since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), from which defendant quotes substantially, the United States Supreme Court on July 2, 1976, decided the cases of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). These cases answered some of the questions raised by Furman and now urged by defendant.

In Gregg, the Supreme Court noted capital punishment was accepted by the framers of the Constitution, and that for nearly 2 centuries the Court has recognized its use for the crime of murder is not invalid per se. The Court also noted legislative measures adopted by the people's chosen representatives weigh heavily in ascertaining contemporary standards of decency. It answered the argument that the Eighth Amendment, forbidding cruel and unusual punishment, should be construed as prohibiting the death penalty by pointing to the fact that in the 4 years since Furman was decided, Congress and at least 35 states have enacted new statutes providing for the death penalty. The Court further noted that retribution and the possibility of deterrence of capital crimes by prospective offenders are not impermissible considerations for a Legislature to weigh in determining whether the death penalty should be imposed. Importantly herein, it observed that capital punishment for the crime of murder cannot be viewed as invariably disproportionate to the severity of that crime.

Of particular moment in answering some of the arguments of the defendant is the observation that the concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously, can be met by carefully drafted statutes. These statutes should insure the sentencing authority is given adequate information and guidance. It noted these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relative to the imposition of sentence and provided with standards to guide its use in that information.

Because Gregg v. Georgia, supra, adequately answers the questions raised by the defendant as to the applicability of the death penalty in this case, we concern ourselves with an analysis of the Nebraska statute in the...