State v. Hochstein

• Decision Date: 03 August 2001
• Docket Number: No. S-99-1345., No. S-99-1344
• Citation: 632 N.W.2d 273,262 Neb. 311
• Parties: STATE of Nebraska, Appellee, v. Peter HOCHSTEIN, Appellant. State of Nebraska, Appellee, v. C. Michael Anderson, Appellant.
• Court: Nebraska Supreme Court

632 N.W.2d 273

262 Neb. 311

STATE of Nebraska, Appellee, v. Peter HOCHSTEIN, Appellant.

State of Nebraska, Appellee, v. C. Michael Anderson, Appellant.

Nos. S-99-1344, S-99-1345.

Supreme Court of Nebraska.

August 3, 2001.

Emil M. Fabian, of Fabian & Thielen, Omaha, for appellant Peter Hochstein, and, on brief, Peter Hochstein, pro se.

Alan G. Stoler, Omaha, and Jerry M. Hug for appellant C. Michael Anderson, and, on brief, C. Michael Anderson, pro se.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ., and INBODY, Judge.

INTRODUCTION

MILLER-LERMAN, J.

In case No. S-99-1344, Peter Hochstein appeals the death penalty imposed upon him by the November 5, 1999, order of the district court for Douglas County. In case No. S-99-1345, C. Michael Anderson appeals the death penalty imposed upon him by the November 5, 1999, order of the district court for Douglas County. Because the appeals involve virtually identical issues, both cases will be discussed and resolved in this opinion.

In summary, Anderson and Hochstein were each convicted of murder in the first degree. Pursuant to the 1997 mandate of the Court of Appeals for the Eighth Circuit, three-judge sentencing panels were designated pursuant to Neb.Rev.Stat. § 29-2520(3) (Reissue 1995). In each case, two of the judges on the three-judge sentencing panel voted in favor of imposition of the death penalty and one judge voted against imposition of the death penalty. On November 5, 1999, the district court imposed a sentence of death in each case. Anderson and Hochstein each challenge the propriety of the imposition of the death penalty based on a nonunanimous vote of the three-judge sentencing panel, an issue which arose for the first time in these cases in 1999. As explained below, we conclude in each case that given the provisions of the "Special Procedure in Cases of Homicide," Neb.Rev.Stat. §§ 29-2519 through 29-2546 (Reissue 1995 & Cum.Supp.1998), the district court erred as a matter of law in imposing sentences of death rather than life sentences where the sentencing panel designated under § 29-2520(3) did not vote unanimously to impose the death penalty. Where a defendant has been convicted of murder in the first degree pursuant to Neb.Rev.Stat. § 28-401 (Reissue 1975) (now Neb.Rev.Stat. § 28-303 (Reissue 1995)), the permissible sentences are a sentence of life imprisonment or a sentence of death. See, § 29-2522 (Reissue 1975); Neb.Rev.Stat. § 28-105 (Cum.Supp.2000). Consequently, where the defendant has been convicted of first degree murder and acquitted of the death penalty due to the sentencing panel's failure to unanimously agree that a sentence of death should be imposed, by operation of law, the proper sentence which should be imposed by the district court is life imprisonment. Accordingly, in each case, we vacate the sentence of death and reverse the judgment and remand the cause to the district court with directions to impose a sentence of life imprisonment. In all other respects, the orders of the district court are affirmed.

STATEMENT OF FACTS

Anderson and Hochstein were originally sentenced to death in 1978 following their convictions for murder in the first degree. Their convictions and sentences were affirmed by this court in 1980. State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980), cert. denied 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 219 (1981).

During the period 1981 to 1997, Anderson and Hochstein sought postconviction and habeas corpus relief in the state and federal courts. Such petitions in state court were denied, and the denials were affirmed by this court as follows: State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); State v. Anderson, 216 Neb. 521, 344 N.W.2d 473 (1984); Anderson and Hochstein v. Gunter, 226 Neb. 724, 414 N.W.2d 281 (1987); and Anderson v. Gunter, 235 Neb. 560, 456 N.W.2d 286 (1990).

As noted, Anderson and Hochstein sought habeas corpus relief in the U.S. District Court for the District of Nebraska, and on January 16, 1996, the U.S. District Court issued a memorandum opinion in each case, rejecting the majority of Anderson's and Hochstein's claims but concluding that Anderson and Hochstein were entitled to relief on a sentencing claim relating to the "exceptional depravity" aggravating circumstance. Anderson v. Hopkins, CV. 84-L-741 (D.Neb. Jan. 16, 1996); Hochstein v. Hopkins, CV. 84-L-755 (D.Neb. Jan. 16, 1996). The U.S. District Court determined that Anderson's and Hochstein's petitions for writs of habeas corpus must be granted based on this issue.

The U.S. District Court entered an order and judgment dated January 16, 1996, in each case stating:

This action is remanded to the Nebraska Supreme Court to reduce petitioner's sentence to life imprisonment unless within ninety (90) days of the date of this opinion, [it] reweigh[s] the aggravating and mitigating circumstances, conduct[s] a harmless error review, or remand[s] the case back to the Douglas County District Court for resentencing.

The State appealed the decisions of the U.S. District Court to the Court of Appeals for the Eighth Circuit, and Anderson and Hochstein cross-appealed. The Court of Appeals for the Eighth Circuit affirmed the U.S. District Court's decisions in both cases. Anderson v. Hopkins, 113 F.3d 825 (8th Cir.1997); Hochstein v. Hopkins, 113 F.3d 143 (8th Cir.1997). The Court of Appeals for the Eighth Circuit concluded in each case:

The order and judgment of the [U.S.] district court is modified to provide that [each] petitioner's sentence will be reduced to life imprisonment, unless within ninety (90) days of the date of our mandate in the present case, the Nebraska Supreme Court reweighs the aggravating and mitigating circumstances, conducts an independent harmless error review, or remands the case to the sentencing court for resentencing.

Anderson, 113 F.3d at 832. Accord Hochstein, supra. The Court of Appeals for the Eighth Circuit subsequently modified the orders to change the reference to "ninety (90) days" to "one hundred and fifty (150) days." Anderson v. Hopkins, 122 F.3d 1160, 1161 (8th Cir.1997); Hochstein v. Hopkins, 122 F.3d 1160, 1161 (8th Cir.1997). The relief granted by the Court of Appeals for the Eighth Circuit was limited to the sentencing issue, and mandates were, accordingly, limited to the sentencing issue. The U.S. Supreme Court denied certiorari in the Hochstein case. Hochstein v. Hopkins, Warden, 522 U.S. 959, 118 S.Ct. 388, 139 L.Ed.2d 303 (1997).

Subsequent to the issuance of the mandates of the Court of Appeals for the Eighth Circuit, the State, on July 17, 1997, filed motions with this court to initiate resentencing proceedings in both cases. In response to the State's motions, on August 4, we entered an order in each case, stating, "Motion considered; no federal stay having issued, cause remanded to district court for resentencing."

Upon remand to the district court, a three-judge sentencing panel was named in each case pursuant to § 29-2520(3). A sentencing hearing as to both Anderson and Hochstein was held before the panel on September 7 and 8, 1999. Prior to the sentencing hearing, Anderson and Hochstein filed various preliminary motions including motions for new trials, motions to determine death eligibility, motions to prohibit imposition of the death penalty, and motions to declare the Nebraska death penalty unconstitutional. The district court entered an order on miscellaneous motions dated November 5, denying these and other pending motions filed by Anderson and Hochstein.

On November 5, 1999, the district court entered orders in both cases, imposing the death penalty on Anderson and Hochstein. The orders stated that as to the aggravating circumstances, the sentencing panel found that the aggravating circumstance set forth in § 29-2523(1)(c), that "[t]he murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant," existed beyond a reasonable doubt in each case. The sentencing panel found no other statutory aggravating circumstances present in either case. As to statutory mitigating circumstances, the sentencing panel found the mitigating circumstance set forth in § 29-2523(2)(a), that "[t]he offender has no significant history of prior criminal activity," was applicable in each case. The sentencing panel found no other statutory mitigating circumstances applicable in either case.

The sentencing panel further considered certain nonstatutory mitigating circumstances urged by Anderson and Hochstein. The following circumstances were urged by both Anderson and Hochstein: (1) the length of time on death row, then exceeding 21 years; (2) exemplary adjustment to institutional life; (3) lack of any evidence of future dangerousness; and (4) demonstration of rehabilitation while imprisoned. As to the first circumstance, the panel found that the length of incarceration did not constitute in itself a mitigating factor. As to the second circumstance, the order stated that while the evidence established that each defendant had adjusted to institutional life, a "majority of the sentencing panel" determined that such adjustment was "entitled to little weight." As to the third circumstance, the sentencing panel was "unable to accord ... significant weight" to evidence of the likelihood of lawful future behavior. As to the fourth circumstance, the sentencing panel found that Anderson's and Hochstein's adjustment to institutional life "may or may not be compatible with rehabilitation" and thus accorded "little weight" to such circumstance.

Anderson additionally urged the following as nonstatutory mitigating circumstances pertinent to his case: (1) family responsibility and ties, (2) invasion of his constitutional and statutory rights resulting from private individuals tainting the prosecution, and (3) disparity in...