State v. Ellis

• Citation: 799 N.W.2d 267,281 Neb. 571
• Decision Date: 27 May 2011
• Docket Number: No. S–09–148.,S–09–148.
• Parties: STATE of Nebraska, appellee,v.Roy L. ELLIS, appellant.
• Court: Supreme Court of Nebraska

281 Neb. 571

799 N.W.2d 267

STATE of Nebraska, appellee,

v.Roy L. ELLIS, appellant.

No. S–09–148.

Supreme Court of Nebraska.

May 27, 2011.

Syllabus by the Court

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

2. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb.Rev.Stat. §§ 27–403 and 27–404(2) (Reissue 2008), and the trial court's decision will not be reversed absent an abuse of discretion.

3. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.

4. Rules of Evidence: Other Acts: Proof. Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), prohibits the admissibility of relevant evidence for the purpose of proving the character of a person in order to show that he or she acted in conformity therewith; or, stated another way, the rule prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner.

5. Evidence: Other Acts. Other acts evidence may have probative value as to identity where there are overwhelming similarities between the other crime and the charged offense or offenses, such that the crimes are so similar, unusual, and distinctive that the trial judge could reasonably find that they bear the same signature.

6. Evidence: Other Acts. In evaluating other acts evidence in criminal prosecutions, the other act must be so related in time, place, and circumstances to the offense or offenses charged so as to have substantial probative value in determining the guilt of the accused.

7. Trial: Evidence: Juries: Appeal and Error. Evidentiary error is harmless when improper admission of evidence did not materially influence the jury to reach a verdict adverse to substantial rights of the defendant.

8. Motions for Mistrial. The decision to grant a motion for mistrial is within the trial court's discretion.

9. Motions for Mistrial: Motions to Strike: Proof. A defendant faces a higher threshold than merely showing a possibility of prejudice when attempting to prove error predicated on the failure to grant a mistrial. Instead, the defendant must prove the alleged error actually prejudiced him or her, rather than creating only the possibility of prejudice.

10. Pretrial Procedure: Appeal and Error. Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon will not be reversed in the absence of an abuse of discretion.

11. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

12. Trial: Expert Witnesses. Under the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), framework, once the reasoning or methodology of expert opinion testimony has been found to be reliable, the court must determine whether the methodology was properly applied to the facts in issue.

13. Trial: Expert Witnesses. A general foundational objection is insufficient to preserve an issue under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

14. Trial: Expert Witnesses: Pretrial Procedure. To sufficiently call specialized knowledge into question under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), is to object with enough specificity so that the court understands what is being challenged and can accordingly determine the necessity and extent of any pretrial proceeding.

15. Judgments: Appeal and Error. When issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

16. Sentences: Death Penalty. That a method of execution is cruel and unusual punishment bears solely on the legality of the execution of the sentence and not on the validity of the sentence itself.

17. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law: accordingly, an appellate court is obligated to reach a conclusion independent of the decision reached by the court below.

18. Constitutional Law: Statutes. A grant of administrative authority is not necessarily an unconstitutional delegation of legislative power.

19. Administrative Law: Statutes: Legislature. The Legislature may enact statutes to set forth the law, and it may authorize an administrative or executive department to make rules and regulations to carry out an expressed legislative purpose.

20. Constitutional Law: Legislature. Although the limitations of the power granted and the standards by which the granted powers are to be administered must be clearly and definitely stated in the authorizing act, where the Legislature has provided reasonable limitations and standards for carrying out the delegated duties, there is no unconstitutional delegation of legislative authority.

21. Legislature. Delegation of legislative power is most commonly indicated where the relations to be regulated are highly technical or where regulation requires a course of continuous decision.

22. Constitutional Law: Sentences: Death Penalty: Jurors. In death penalty cases, an eligibility or selection factor is not unconstitutional if it has some commonsense core of meaning that a juror can understand.

23. Constitutional Law: Sentences: Death Penalty: Appeal and Error. Because the proper degree of definition of eligibility and selection factors in death penalty cases often is not susceptible of mathematical precision, a vagueness review is quite deferential.

24. Homicide: Aggravating and Mitigating Circumstances. “Exceptional depravity” in a murder exists when it is shown, beyond a reasonable doubt, that the following circumstances, either separately or collectively, exist in reference to a first degree murder: (1) apparent relishing of the murder by the killer, (2) infliction of gratuitous violence on the victim, (3) needless mutilation of the victim, (4) senselessness of the crime, or (5) helplessness of the victim.

25. Sentences: Aggravating and Mitigating Circumstances: Juries. Mitigating circumstances, and the “weight” to be assigned to the aggravating and mitigating circumstances, are relevant only to the sentencing panel's exercise of its discretion to decide which statutorily authorized sentence to impose and do not require determination by a jury.

26. Federal Acts: Actions. Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress.

27. Federal Acts: Actions. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter or how compatible with the statute.

28. Sentences: Aggravating and Mitigating Circumstances: Appeal and Error. When reviewing the sufficiency of the evidence to sustain the trier of fact's finding of an aggravating circumstance, the relevant question for the Nebraska Supreme Court is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the aggravating circumstance beyond a reasonable doubt.

29. Trial: Witnesses: Juries. The credibility of witnesses is for the jury, and a jury's findings may be based upon the uncorroborated testimony of a single witness.

30. Sentences: Aggravating and Mitigating Circumstances: Appeal and Error. A capital sentencing panel's determination of the existence or nonexistence of a mitigating circumstance is subject to de novo review by the Nebraska Supreme Court.

31. Sentences: Aggravating and Mitigating Circumstances: Proof. While there is no burden of proof with regard to mitigating circumstances, because the capital sentencing statutes do not require the State to disprove the existence of mitigating circumstances, the risk of nonproduction and nonpersuasion is on the defendant.

32. Sentences: Death Penalty: Appeal and Error. In a capital sentencing proceeding, the Nebraska Supreme Court conducts an independent review of the record to determine if the evidence is sufficient to support imposition of the death penalty.

33. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. In reviewing a sentence of death, the Nebraska Supreme Court conducts a de novo review of the record to determine whether the aggravating and mitigating circumstances support the imposition of the death penalty.

34. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. The Nebraska Supreme Court is required, upon appeal, to determine the propriety of a death sentence by conducting a proportionality review, comparing the aggravating and mitigating circumstances with those present in other cases in which a district court imposed the death penalty. The purpose of such review is to ensure that the sentence imposed in a case is no greater than those imposed in other cases with the same or similar circumstances.

35. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. The Nebraska Supreme...