State v. Moore, 43557

• Decision Date: 29 January 1982
• Docket Number: No. 43557,43557
• Citation: 210 Neb. 457,316 N.W.2d 33
• Parties: STATE of Nebraska, Appellee, v. Carey Dean MOORE, Appellant.
• Court: Nebraska Supreme Court

Page 33

316 N.W.2d 33

210 Neb. 457

STATE of Nebraska, Appellee, v. Carey Dean MOORE, Appellant.

No. 43557.

Supreme Court of Nebraska.

Jan. 29, 1982.

Syllabus by the Court

1. Constitutional Law: Death Penalty. The death penalty is not per se cruel and unusual punishment in violation of the eighth and fourteenth amendments to the Constitution of the United States and article I, §§ 3 and 9, of the Bill of Rights of the Constitution of Nebraska.

2. Constitutional Law: Aggravating and Mitigating Circumstances: Death Penalty: Sentences. Neither the Constitution of the United States nor the Constitution of Nebraska requires determination by a jury of the applicability of the aggravating and mitigating factors in determining under the provisions of Neb.Rev.Stat. §§ 29-2522 and 29-2523 (Reissue 1979) whether the penalty shall be death or life imprisonment, and the provision of determination of the penalty by the trial judge or a panel of judges after notice and hearing is constitutional.

3. Constitutional Law: Aggravating and Mitigating Circumstances: Words and Phrases. The definitions of aggravating circumstances in Neb.Rev.Stat. § 29-2523 (Reissue 1979) are not too broad or vague and will be given a narrow construction and narrow application, and as so contrued and applied are constitutional.

4. Criminal Defendants: Homicide: Words and Phrases. A state of mind of the accused which indicates a callous disposition to repeat the crime of murder manifests exceptional depravity by ordinary standards of morality and intelligence within the meaning of Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1979).

5. Criminal Defendants: Homicide. A substantial history of serious assaultive or terrorizing criminal activity includes a previous premeditated murder.

6. Criminal Defendants: Homicide. The fact that a murder is committed to conceal the identity of the perpetrator of a robbery satisfies the requirements of Neb.Rev.Stat. § 29-2523(1)(b) (Reissue 1979).

7. Criminal Defendants: Aggravating and Mitigating Circumstances: Sentences. Neb.Rev.Stat. § 29-2523 (Reissue 1979) does not limit in any way the mitigating factors or circumstances which the court may consider, and the sentencing court should be liberal in admitting evidence of facts which the convicted defendant asserts are mitigating factors.

8. Constitutional Law: Aggravating and Mitigating Circumstances: Proof. Neither the Constitution of the United States nor the Constitution of the State of Nebraska requires the prosecution to prove the absence of mitigating factors.

9. Constitutional Law: Death Penalty: Sentences. Neb.Rev.Stat. §§ 29-2520 and 29-2522 (Reissue 1979) are not unconstitutional because the sentencing hearing may be held and the sentence may be imposed either by the trial judge or a sentencing panel consisting of the trial judge and two other district judges.

10. Death Penalty: Sentences. The imposition of the death sentence in this case is justified by the application of the standards provided by Neb.Rev.Stat. § 29-2523 (Reissue 1979), as interpreted and limited by the definitions of this court.

Thomas M. Kenney, Douglas County Public Defender, and Stanley A. Krieger, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

CLINTON, Justice.

The defendant, Carey Dean Moore, age 22, was charged with two counts of first degree murder as follows: (1) On August 22, 1979, having killed Reuel Eugene Van Ness, Jr., in the perpetration of or attempt to perpetrate a robbery, and (2) on August 27, 1979, having killed Maynard D. Helgeland in the perpetration of or attempt to perpetrate a robbery. After waiving a trial by jury, defendant was tried by the court and found guilty on both counts. Pursuant to the provisions of Neb.Rev.Stat. §§ 29-2520 et seq. (Reissue 1979), a sentencing hearing was held on May 22, 1980, before a panel of three judges, including the trial judge. On June 20, 1980, the defendant was, on each count, sentenced to the penalty of death by electrocution.

The case has come to this court for automatic review. The defendant assigns the following alleged errors: (1) The Nebraska statutes providing for capital punishment are unconstitutional because the death sentence is per se unconstitutional and prohibited by the eighth and fourteenth amendments to the U.S. Constitution and article I, § 9, of the Bill of Rights of the Nebraska Constitution. (2) Neb.Rev.Stat. §§ 29-2519 through 29-2523 (Reissue 1979), providing the conditions under which the death penalty may be imposed, are unconstitutional because they do not provide for a jury determination of the existence of the aggravating and mitigating circumstances described in the statutes and the appropriateness of the death penalty. (3) Sections 29-2523 et seq. are unconstitutionally vague and indefinite, and appellate interpretation has not removed this ambiguity. (4) The sentencing panel of judges did not properly apply to the evidence in the case the aggravating and mitigating circumstances as defined by statute and the interpretations of this court. (5) The panel erred in its review of homicide cases in which the death penalty was not imposed, claimed by the defendant to be similar to the case at bar, because the panel limited its review in accordance with our opinion in State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979). (6) The death penalty statute is unconstitutional because it limits the mitigating factors which can be considered by the sentencing tribunal. (7) A conviction and sentence in a capital case cannot be sustained unless it appears beyond a reasonable doubt that no error in the factfinding of the trial contributed in any way to the determination of guilt. (8) The statutes are unconstitutional because they do not require the State to prove beyond a reasonable doubt that mitigating factors do not exist. (9) The provision of the statutes providing that the sentencing phase may be heard before either the judge who presided at the trial or before a sentencing panel of three judges, including the trial judge, is unconstitutional because it provides no guidelines for the determination of when the sentencing is to be done by a single judge and by a panel. (10) The sentence of death is excessive and should be reduced to life imprisonment.

We affirm the judgment and sentences.

The defendant did not introduce any evidence during the trial of the case. Therefore, there is no significant conflict on the issue of guilt. The defendant confessed commission of the two killings in taped interrogations by the police, which were introduced in evidence. It is not claimed that these confessions were involuntary.

An outline of the evidence, however, is necessary to a discussion of assignment (4) and in order that we may perform our independent function of determining whether the imposition of this particular death penalty is appropriate under the statutory standards, and to assure the death penalty is not imposed in an arbitrary and capricious manner.

Both of the victims were cabdrivers, and the modus operandi in each case was similar. About August 20, 1979, the defendant purchased the handgun with which the murders were committed. He acquired the gun by purchasing it from a cabdriver who had pawned the gun. The defendant and the seller went together to the pawn shop where the gun was redeemed, the defendant furnishing the money for the redemption and paying the seller an additional $50. The gun was then test-fired.

We now quote from the findings made by the sentencing panel in its order, which findings are fully supported by uncontroverted evidence: "The defendant's own statements, in his confession to Officers O'Donnell and Thompson while in custody at Charles City, Iowa, indicate that these crimes had been in the planning stage for at least a day or two before the Van Ness homicide. Apparently on the evening prior to the Van Ness murder, the defendant had called a number of cabs from a telephone booth somewhere on Farnam Street in the downtown Omaha area to see how quickly each would respond to his call. The defendant then hid somewhere in the vicinity to await each cab's arrival, at which time he checked the cab to determine whether the driver would be a suitable victim, i.e., not too young, since the defendant stated that it was easier for him to shoot an older man rather than a younger man nearer his own age. On the evening of the Van Ness homicide, the defendant's plan was to call one cab at a time from the Smoke Pit restaurant, and, if the driver who responded 'wasn't too old,' the defendant would just not identify himself as the fare for which the cab had been summoned. When Mr. Van Ness arrived at the Smoke Pit on August 22, 1979, the defendant determined that this was the driver who would be robbed and shot because 'he wasn't too young'.

"A similar pattern of events unfolded on August 26, 1979. The defendant went to the Greyhound Bus depot at 18th and Farnam Streets in Omaha that evening, and, when he saw a lone cab with an older driver parked at the taxi stand outside the depot, he got into the cab and directed the driver to take him to the Benson area. According to the defendant, this particular cab and driver were selected both because there were no other cabs at the taxi stand at the time, thus decreasing the chances of the defendant's being identified, and because the driver was an older man. The defendant then stated that, as previously discussed, he had planned ahead of time to rob and shoot the driver of whichever cab he selected." In his confessions the defendant stated that he killed each of the victims in order that the victim would not be able to identify him as the robber.

The body of Van Ness was found at Dam Site 16 near Omaha on the morning of August 22, 1979. The body of Helgeland was found in his cab in Omaha about 7:30...