State v. Gales, S-01-1231.
| Decision Date | 28 March 2003 |
| Docket Number | No. S-01-1231.,S-01-1231. |
| Citation | 658 N.W.2d 604,265 Neb. 598 |
| Parties | STATE of Nebraska, Appellee, v. Arthur L. GALES, Appellant. |
| Court | Nebraska Supreme Court |
J. William Gallup, of Gallup & Schaefer, Omaha, for appellant.
Jon Bruning, Attorney General, J. Kirk Brown, Lincoln, and, on brief, Don Stenberg, former Attorney General, for appellee.
Denise E. Frost and Clarence E. Mock III, of Johnson & Mock, for amicus curiae American Civil Liberties Union Nebraska Foundation, Inc.
After a jury found Arthur L. Gales guilty of two counts of first degree murder and one count of attempted second degree murder, the trial judge conducted a sentencing hearing, made factual findings, and sentenced Gales to death on each count of first degree murder and to not less than 50 nor more than 50 years' imprisonment on the count of attempted second degree murder. This is an automatic direct appeal from the death sentences as required by Neb.Rev.Stat. § 29-2525 (Cum.Supp.2002). During the pendency of the appeal, but before it was briefed and argued, the U.S. Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in which it held that a defendant in a capital case has a Sixth Amendment right to a jury determination of certain factual issues which determine whether a death sentence may be imposed. Subsequent to oral argument and submission of this appeal, the Nebraska Legislature enacted amendments to Nebraska's capital sentencing statutes in response to Ring. This case presents our first opportunity to assess the impact of Ring on Nebraska's capital sentencing statutes and to determine the applicability of the recent amendments to those statutes.
A three-count information was filed against Gales on May 22, 2001. Count I charged Gales with first degree murder based on an allegation that on or about November 12, 2000, he purposely and with deliberate and premeditated malice or during the perpetration of a first degree sexual assault killed Latara Chandler (Latara). Count II charged first degree murder based upon an allegation that on or about November 12, Gales purposely and with deliberate and premeditated malice killed Tramar Chandler (Tramar). Count III charged Gales with attempted second degree murder, alleging that on or about November 12, he intentionally, but without premeditation, attempted to kill Judy Chandler (Chandler). Gales entered pleas of not guilty to all charges.
A jury trial commenced on August 20, 2001. Evidence received at trial revealed that Gales was present with Chandler and her children, Latara and Tramar, at Chandler's apartment in Omaha, Nebraska, between 10 and 11 p.m. on November 11, 2000. On the following morning, Chandler was found badly beaten and incoherent near 15th and Grace Streets in Omaha. After Chandler was identified, police learned that she had children. At approximately 5:30 p.m. on November 12, police entered Chandler's apartment to check on the children and discovered 13-year-old Latara's body, nude from the waist down, in a bedroom. Seven-year-old Tramar's body was found with his torso positioned face up in the bathtub and his legs outside the bathtub. Autopsies revealed that Latara died as a result of manual strangulation and that Tramar died as a result of drowning and manual strangulation. The examining pathologist testified that each child had been subjected to at least 4 minutes of continuous compression of the neck before death. Latara had been sexually assaulted. The pathologist could not pinpoint the exact time of death for either child.
The State's theory at trial was that Gales and Chandler left Chandler's children at her apartment on the evening of November 11, 2000, and subsequently became involved in an altercation in which Gales severely beat Chandler and left her for dead. The State contended that Gales realized the children were witnesses who could place him with Chandler that evening and that he therefore returned to the apartment and killed them. Gales did not testify or offer evidence at trial and did not dispute the State's general theory of how the deaths of the children occurred. His defense was that he was not the person who assaulted Chandler and killed the children. The State presented DNA evidence which linked Gales to both crime scenes and excluded other potential suspects.
On August 27, 2001, the jury returned a verdict finding Gales guilty of two counts of first degree murder and one count of attempted second degree murder. On August 28, the district court entered an "Order of Judgment of Conviction," in which it accepted the verdict of the jury and adjudged Gales guilty on all three counts. The court scheduled a sentencing hearing for October 23.
Subsequently to entry of the judgment of conviction and prior to the sentencing hearing, Gales filed a motion challenging the constitutionality of the Nebraska capital sentencing statutes. He asserted that "[p]ursuant to Jones v. United States, 526 U.S. 227[, 119 S.Ct. 1215, 143 L.Ed.2d 311] (1999) and Apprendi v. New Jersey, , 120 S.Ct. 2348 (2000), the Defendant is entitled to a new trial for jury determination of sentence." In the alternative, Gales sought a new trial "for Jury determination of statutory aggravating and mitigating circumstances." This motion was heard at the commencement of the sentencing hearing and overruled. At the same time, the court overruled a defense motion to convene a three-judge sentencing panel.
The sentencing hearing was conducted by the judge who presided at Gales' trial. On November 6, 2001, Gales appeared before the court for the imposition of sentence. The court issued a written order of sentence on that date in which it found that certain statutory aggravating circumstances existed. First, the court found that Gales was previously convicted of another crime involving the use or threat of violence to a person, the aggravating circumstance enumerated in Neb.Rev.Stat. § 29-2523(1)(a) (Cum.Supp.2002), because Gales had prior convictions for armed sexual battery and strong-armed robbery. The court found this aggravating circumstance applicable to both counts of first degree murder.
Second, the court found that Gales committed the murders of both children in an effort to conceal his identity as the perpetrator of the attempted murder of Chandler, thus meeting aggravating circumstance § 29-2523(1)(b). Relying upon evidence produced at trial, the court concluded that Gales assaulted Chandler, left her for dead, and then returned to the apartment to kill the children because they were witnesses.
Third, the court found that the murder of Latara was "especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence," so that aggravating circumstance § 29-2523(1)(d) was met. Relying upon evidence produced at trial, the court concluded that the sexual abuse inflicted upon Latara prior to her death combined with the manual strangulation were sufficient to satisfy this aggravator. The court concluded that this aggravating circumstance was not met as to the death of Tramar.
Finally, the court found that aggravating circumstance § 29-2523(1)(e), "[a]t the time the murder was committed, the offender also committed another murder," was applicable to the deaths of both children. Relying upon evidence received at trial, the court found that Gales was present in Chandler's apartment at 11 p.m. on November 11, 2000. The court further found that Gales was the man who witnesses indicated was inside the apartment at 4 a.m. on November 12. Reasoning that no one reported seeing or hearing from the children after 11 p.m. on November 11, the court found that the children were murdered some time during the early morning hours of November 12.
In addressing mitigating circumstances, the court determined that no evidence supported a finding of any statutory mitigator. The court found evidence to support a nonstatutory mitigator that Gales maintained a strong relationship with his family. In balancing the aggravating and mitigating circumstances, the court concluded that the one mitigator did not approach or exceed the aggravators in either murder. The court then considered whether a sentence of death in either murder was excessive or disproportionate to the penalty imposed in similar cases and concluded that it was not. Accordingly, the court imposed consecutive sentences of death on each count of first degree murder and a sentence of imprisonment for a period of not less than 50 nor more than 50 years on the count of attempted second degree murder.
Gales' sole assignment of error is that the district court "erred in denying appellant's motions challenging the constitutionality of Nebraska Revised Statute Section 29-2519 (1995) et seq. and requesting a jury determination of sentencing issues." He assigns no error with respect to the jury's determination of guilt on the two counts of first degree murder, or with respect to his conviction and sentence on the one count of attempted second degree murder.
Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court. State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002); State v. Turner, 263 Neb. 896, 644 N.W.2d 147 (2002).
The Sixth Amendment to the U.S. Constitution guarantees the right to "public trial, by an impartial jury" in criminal prosecutions. The Eighth Amendment to the U.S. Constitution forbids the infliction of "cruel and unusual punishments." Both are made applicable to the states through the 14th Amendment. See, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (Eighth amendment);...
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