State v. Gales

• Decision Date: 18 March 2005
• Docket Number: No. S-04-015.,S-04-015.
• Citation: 694 NW 2d 124,269 Neb. 443
• Parties: STATE OF NEBRASKA, APPELLEE, v. ARTHUR LEE GALES, JR., APPELLANT.
• Court: Nebraska Court of Appeals

269 Neb. 443

694 NW 2d 124

STATE OF NEBRASKA, APPELLEE, v. ARTHUR LEE GALES, JR., APPELLANT.

No. S-04-015.

Nebraska Court of Appeals.

Filed March 18, 2005.

Susan M. Bazis, of Bazis Law Offices, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, J. Kirk Brown, Solicitor General, and Kimberly A. Klein for appellee.

James R. Mowbray and Jerry L. Soucie, for amicus curiae Nebraska Commission on Public Advocacy.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and SIEVERS, Judge.

GERRARD, J.

I. NATURE OF CASE

Arthur Lee Gales, Jr., was convicted pursuant to jury verdict of two counts of first degree murder and one count of attempted second degree murder in the district court. Gales was sentenced to 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. On appeal, this court was required, by the U.S. Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), to vacate Gales' death sentences and remand the first degree murder causes for resentencing. See State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003) (Gales I). Upon remand, a three-judge panel of the district court again sentenced Gales to death on each count of first degree murder. The instant appeal is Gales' automatic direct appeal to this court from his resentencing. See Neb. Rev. Stat. § 29-2525 (Cum. Supp. 2004). For the reasons that follow, we affirm the judgment of the district court.

II. BACKGROUND

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. 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. 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.

Gales entered pleas of not guilty to all charges. Evidence at trial revealed that Gales had been at Judy's apartment in Omaha, Nebraska, on November 11, 2000, with Judy and her children, Latara and Tramar. Judy was found near 15th and Grace Streets in Omaha on the morning of November 12. She had been severely beaten. After Judy was identified, police went to Judy'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 lying in a bathtub. Autopsies indicated that Latara was killed by manual strangulation and that Tramar died from drowning and manual strangulation. The pathologist testified that each child had suffered at least 4 minutes of compression of the neck before death. Latara had been sexually assaulted.

The State's theory of the case was that Gales and Judy left Judy's children at her apartment on the evening of November 11, 2000, and that Gales later severely beat Judy and left her for dead. The State contended that Gales realized the children were potential witnesses who could place him with Judy that evening; therefore, he went back to the apartment and killed them. The State presented DNA evidence which linked Gales to both crime scenes and excluded other potential suspects. The DNA evidence particularly linked Gales to the sexual assault of Latara. Gales did not testify or offer evidence at trial and did not dispute the State's general theory of how the children were killed; instead, his defense was that he was not the person who assaulted Judy and killed the children. However, Gales is not, for purposes of this appeal, challenging the factual basis for his convictions.

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. A sentencing hearing was conducted by the judge who presided over the trial. The court found certain aggravating circumstances to exist, and based upon those findings, Gales was sentenced to death for each of the first degree murder convictions. See Gales I. However, in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), the U.S. Supreme Court held with respect to Arizona's capital sentencing procedures that the Sixth Amendment precluded a sentencing judge, sitting without a jury, from finding an aggravating circumstance necessary for imposition of the death penalty. Because Ring was decided during the pendency of Gales' direct appeal, we were required to review his death sentences in accordance with the constitutional principle announced in Ring. See Gales I. Because Nebraska's judge-based capital sentencing procedures were functionally identical to Arizona's, we vacated Gales' death sentences. Gales I.

While Gales I was under submission to this court, the Nebraska Legislature enacted 2002 Neb. Laws, L.B. 1, of the 97th Legislature, Third Special Session, in order to satisfy Ring. For reasons that will be examined in more detail below, we concluded that the provisions of L.B. 1 would apply to Gales' new penalty phase proceeding.

Upon remand, the State filed a notice of aggravating circumstances, indicating its intent to produce evidence that

(1) Gales was previously convicted of a crime involving the use of violence to the person;

(2) each murder was committed in an effort to conceal the identity of the perpetrator of the crime of second degree murder;

(3) at the time each murder was committed, Gales also committed another murder; and

(4) the murder of Latara was especially heinous, atrocious, or cruel.

Following jury selection procedures that will be addressed in more detail below, a jury was impaneled and evidence adduced. The jury unanimously found each of the statutory aggravating circumstances set forth above to exist. The jury was discharged; a three-judge sentencing panel of the district court was convened to preside over a mitigation hearing and received evidence of mitigation and sentence excessiveness or disproportionality. The sentencing panel found no statutory mitigating circumstances to be present in this case and considered two nonstatutory mitigating circumstances proffered by Gales: Gales' strong relationship with members of his family and his ability to adapt to life in prison. However, the panel concluded that the nonstatutory mitigating circumstances were not of sufficient weight to approach or exceed the weight which the panel gave to the aggravating circumstances applicable to each murder, and concluded that the sentence of death should be imposed on Gales for each of the murders of which he had been convicted. The panel concluded that the imposition of a sentence of death was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Consequently, the panel imposed two sentences of death on Gales.

Other factual details will be set forth below as relevant to our discussion of the issues presented in this appeal.

III. ANALYSIS

Gales assigns that the court erred in imposing the death penalty for a number of reasons. Because Gales assigns a great many errors, we have for the sake of clarity consolidated, restated, and reordered Gales' assignments of error. Those assignments of error, and the appropriate standards of review, are set forth below in the individual sections of our analysis.

1. Applicability of L.B. 1

(a) Assignments of Error

(1) L.B. 1 is an ex post facto law that cannot be applied retroactively to Gales' case;

(2) the Nebraska death penalty statutes in effect at the time of the murders were unconstitutional and void pursuant to the principle announced in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); and

(3) L.B. 1 is ineffective because it does not require aggravating circumstances to be alleged in the information.

(b) Standard of Review

[1] The constitutionality of a statute is a question of law, regarding which the Supreme Court is obligated to reach a conclusion independent of the determination reached by the trial court. State v. Diaz, 266 Neb. 966, 670 N.W.2d 794 (2003).

(c) Analysis

Gales assigns several errors with respect to the applicability of L.B. 1 to his resentencing. We discussed the general provisions of L.B. 1 in our decision in Gales I.

Generally, L.B. 1 makes two significant changes in Nebraska's capital sentencing procedure. First, it provides for an "aggravation hearing" following a determination of guilt in a first degree murder case, at which a jury determines whether aggravating circumstances alleged by the State exist, unless such determination by a jury is waived by the defendant. L.B. 1, § 11. Second, it removes the option of sentencing by the trial judge and requires sentencing by a panel of three judges. Id., § 12. L.B. 1 does not change the statutory definitions of aggravating and mitigating circumstances or the manner in which they are to be balanced. Id., §§ 14 and 15.

Gales I, 265 Neb. at 627, 658 N.W.2d at 626.

[2-5] Gales challenges the applicability of L.B. 1's sentencing procedures to his resentencing. Gales also challenges several specific provisions of L.B. 1. However, we have previously considered and rejected several of these arguments, most pertinently in our decision in Gales I. Consequently, it is relevant that matters previously addressed in an appellate court are not reconsidered unless the petitioner presents materially and substantially different facts. Thomas v. State, 268 Neb. 594, 685 N.W.2d 66 (2004). Under the law-of-the-case doctrine, the holdings of an appellate court on questions presented to it in reviewing proceedings...