State v. Joubert

• Decision Date: 29 December 1986
• Docket Number: No. 84-842,84-842
• Citation: 224 Neb. 411,399 N.W.2d 237
• Parties: STATE of Nebraska, Appellee, v. John J. JOUBERT, Appellant.
• Court: Nebraska Supreme Court

Page 237

399 N.W.2d 237

224 Neb. 411

STATE of Nebraska, Appellee, v. John J. JOUBERT, Appellant.

No. 84-842.

Supreme Court of Nebraska.

Dec. 29, 1986.

Syllabus by the Court

1. Pleas. The standard for accepting a plea of guilty is that it must represent a voluntary and intelligent choice among the alternative courses of action open to the defendant, is made understandingly, and has a factual basis.

2. Pleas. Before accepting a plea of guilty the trial court should examine the defendant sufficiently to determine whether he understands the nature of the charge the possible penalty, and the effect of his plea.

3. Sentences: Aggravating and Mitigating Circumstances. Any serious assaultive or terrorizing criminal activity committed by the accused prior to the time of the offense may properly be considered when deciding the applicability of Neb.Rev.Stat. § 29-2523(1)(a) (Reissue 1985).

4. Sentences: Aggravating and Mitigating Circumstances. A defendant may offer any evidence on the issue of mitigation, even though the mitigating factor is not specifically listed in Neb.Rev.Stat. § 29-2523(2) (Reissue 1985).

5. Sentences: Aggravating and Mitigating Circumstances. The balancing of aggravating circumstances against mitigating circumstances is not merely a matter of number counting but, rather, requires a careful weighing and examination of the various factors.

6. Sentences: Aggravating and Mitigating Circumstances. Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1985), that a murder be "especially heinous, atrocious, cruel" or manifest "exceptional depravity by ordinary standards of morality and intelligence," describes in the disjunctive at least two distinct components of the aggravating circumstance which may operate in conjunction with or independent of one another.

7. Sentences: Aggravating and Mitigating Circumstances. The presence of any of the components of Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1985) will sustain a finding that aggravating circumstance (1)(d) exists.

8. Sentences: Aggravating and Mitigating Circumstances. The words "especially heinous, atrocious, cruel," as used in Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1985), mean a conscienceless or pitiless crime which is unnecessarily torturous to the victim.

9. Sentences: Aggravating and Mitigating Circumstances. The phrase "exceptional depravity," as used in Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1985), refers and pertains to the state of mind of the actor and may be proved by or inferred from the defendant's conduct at or near the time of the offense.

10. Sentences: Aggravating and Mitigating Circumstances. For the purpose of Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1985), "exceptional depravity" exists when the act is totally and senselessly bereft of any regard for human life as shown by the presence of the following circumstances, either separately or collectively: (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. Consequently, where one or more of those five factors are present, there may be a finding of "exceptional depravity."

11. Sentences: Appeal and Error. The proportionality review made under the requirements of Neb.Rev.Stat. §§ 29-2521.01, 29-2521.02, and 29-2521.03 (Reissue 1985) is limited to a comparison of the facts and circumstances of the death penalty-imposed case under review with those of all applicable cases in which the death penalty was imposed.

Thomas J. Garvey, Sarpy County Public Defender, Owen A. Giles, Sp. Asst. Public Defender, and, on brief, James P. Miller, Papillion, for appellant.

Robert M. Spire, Atty. Gen., and Melvin K. Kammerlohr, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

The appellant, John J. Joubert, entered a plea of guilty to two counts of first degree murder in violation of Neb.Rev.Stat. § 28-303 (Reissue 1985). Each murder count is a Class I or Class IA felony, punishable by either life imprisonment or the imposition of the death penalty. A three-judge panel was convened pursuant to the provisions of Neb.Rev.Stat. § 29-2520(2) (Reissue 1985). The panel held a hearing and concluded that a sentence of death should be imposed on each count. Joubert appeals to this court, raising issues with regard both to his conviction as well as to his sentence. We affirm.

The facts of the case are distressing at best, but must be related in some detail for an understanding of the case. While delivering newspapers in Bellevue, Nebraska, early on the morning of Sunday, September 18, 1983, Danny Joe Eberle, 13 years of age at the time, disappeared. Following a widespread search of the area conducted by local and area law enforcement personnel with the aid of the FBI, young Eberle's body was found several miles south of Bellevue, Nebraska, during the late morning hours of September 21, 1983. When his body was recovered, both his hands and feet were bound together. His mouth was covered with tape, and he was wearing only a pair of undershorts. A number of stab wounds appeared on his body, including one to the back of his neck. Additionally, a photograph in the record disclosed a gaping wound covering the full length of the back of the left thigh and approximately 11 inches wide, which appeared as if the flesh had been cut away clear to the bone. Although an investigation continued for some time, Danny Joe Eberle's murderer was not then apprehended.

A second young boy, Christopher Walden, then 12 years of age, in the early morning hours of Friday, December 2, 1983, also disappeared. His body was subsequently found by hunters during the late afternoon hours of December 5, 1983, in a small wooded area located at the intersection of Giles and Cornhusker Roads in Sarpy County, Nebraska. He, too, was clad only in a pair of undershorts. His body exhibited a number of stab wounds. Also, his throat was slashed, and the full length and breadth of his chest and abdomen was covered with what looked like a representation of a large plant, including the stem and seven leaves. This figure appeared to have been rather carefully and deliberately carved into the skin and flesh with a sharp knife. Further investigation continued, and still no one was apprehended.

Then, on the morning of January 11, 1984, at approximately 8:30 a.m., a teacher at the Aldersgate Preschool in northeast Sarpy County was preparing for the day. She observed a car driven by a person she would later identify as Joubert approach close to the windows of the school. He stopped momentarily, looked at the teacher, and then turned around and drove off. Several minutes later, she noticed he had driven back. He did not drive up to the window this time but, rather, sat a short distance from the school, looking at her for a few seconds.

Concerned, she wrote down the license plate number of the vehicle and watched it drive away. A few minutes later, the vehicle returned and drove up to the building again. Joubert got out of the vehicle and came to the door of the school, asking for directions. She gave him the directions he requested. Claiming he could not understand her directions, he asked to use the phone. She said there was no phone inside the school. At that time he pushed her back inside the room and said to her, "Get back in there or I'll kill you." The teacher pushed Joubert out of her way and ran by him down the street to a nearby home where she called the police.

She gave the police the license number of the car she had seen and also indicated that the person in the car looked like the composite sketch of the suspected killer of both young boys that had appeared for approximately a month in the local newspaper.

The police conducted a preliminary investigation and, by matching license numbers, picked up Joubert, a member of the U.S. Air Force, at Offutt Air Force Base located in Sarpy County.

Initially, the officials who questioned Joubert talked to him only about the incident at the Aldersgate Preschool. Soon thereafter, however, Joubert made some spontaneous admissions to those questioning him concerning the Eberle/Walden homicides. Eventually, Joubert gave a tape-recorded confession in which he filled in those facts of the Eberle and Walden slayings that the investigators had been unable to find.

Joubert told the officers that he was driving around Bellevue in his personal car, a 1979 Chevrolet Nova, in the early morning hours of September 18, 1983. He pulled up to a convenience store to get something to drink. At the time, it was still dark. He was leaning against his car, sipping his drink in the parking lot of the store, when he noticed a young boy fixing his newspapers for the day. When the boy left the parking lot, Joubert followed him. He drove past the boy and parked in a parking lot two blocks further. He got out of his car, carrying rope, some tape, and a knife, and hid behind a car or tree, where he waited. As Eberle was walking back to his bike after delivering a paper, he spoke to Joubert, who returned the greeting. Then, as Eberle turned his back on Joubert to get on his bike, Joubert grabbed him, put his hand over his mouth and a knife to his throat, and told him to come with him and not to make any sounds. Eberle did not struggle and returned to the parking lot with Joubert. Joubert ordered Eberle to lie down on his stomach next to the car. It was still dark and no one could see them. When Eberle lay down, Joubert tied his hands behind his back and then tied his feet together and placed some tape over his mouth. When all of this was done, Joubert picked Eberle up and placed him in the trunk of the car and closed the top. He then drove off.

Joubert told the officers he then drove to a somewhat secluded place south of Bellevue, where he took Eberle out of the trunk and laid him in a ditch on the side...