State v. Moore
| Decision Date | 27 September 1996 |
| Docket Number | No. S-95-485,S-95-485 |
| Citation | 553 N.W.2d 120,250 Neb. 805 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Carey Dean MOORE, Appellant. |
Syllabus by the Court
1. Constitutional Law: Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. A death sentence tainted by the improper application of an aggravating factor may be constitutionally cured by the Nebraska Supreme Court's reweighing the aggravating and mitigating circumstances involved.
2. Words and Phrases. The word "apparent" means readily perceptible.
3. Homicide: Aggravating and Mitigating Circumstances. Aggravating circumstance Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1995), reading, "[t]he murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence," contains two separate disjunctive components which may operate together or independently of one another.
4. Homicide: Aggravating and Mitigating Circumstances. Exceptional depravity under Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1995) exists when it is shown beyond a reasonable doubt that the following circumstances, either separately or collectively, exist: (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; (5) helplessness of the victim, or (6) cold, calculated planning of the victim's death as exemplified by experimentation with the method of causing the death or by the purposeful selection of a particular victim on the basis of specific characteristics.
5. Statutes: Courts. In the absence of clear precedent, a trial court confronting a statute for the first time must apply the statute in accordance with its own understanding of it.
6. Due Process: Criminal Law: Statutes. Due process requirements prevent the retroactive application of statutory construction which either makes conduct criminal that was innocent when done, aggravates a crime, or makes the crime greater than it was when committed.
7. Due Process: Statutes. The construction of a statute may be applied to 8. Constitutional Law: Sentences: Death Penalty. There are two phases to a constitutional capital sentencing process: the determination that the defendant is death eligible and the creation of an individualized sentence for the defendant.
conduct occurring prior to the construction, provided such application affords fair warning to the defendant.
9. Words and Phrases. The word "approach" means coming or being near in quality or character.
10. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Proof. Aggravating circumstances must be proved beyond a reasonable doubt.
11. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. There is no burden of proof with respect to mitigating circumstances.
12. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. The determination of whether mitigating circumstances approach or exceed the weight of aggravating circumstances is not a numerical process, but, rather, involves the reasoned judgment of the sentencing authority.
13. Sentences: Death Penalty. A capital sentencing authority need not be instructed on how to weigh any particular fact in the capital sentencing decision.
Thomas M. Kenney, Douglas County Public Defender, and Thomas C. Riley, Omaha, for appellant.
Don Stenberg, Attorney General, and J. Kirk Brown, Lincoln, for appellee.
This matter comes to us under the automatic appeal provisions of Neb.Rev.Stat. § 29-2525 (Reissue 1995) from the resentence of death for each of two first degree murders imposed upon the defendant-appellant, Carey Dean Moore, on April 21, 1995, by a three-judge resentencing panel of the district court. We affirm each sentence.
The events surrounding the murders which have resulted in the resentences at issue are set forth in this court's opinion of January 29, 1982, affirming on direct appeal the original sentences of death imposed by a sentencing panel of the district court on June 20, 1980. State v. Moore, 210 Neb. 457, 461-62, 316 N.W.2d 33, 36-37 (1982), cert. denied 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864, as follows:
About August 20, 1979, [Moore] purchased the handgun with which the murders were committed. He acquired the gun by purchasing it from a cabdriver who had pawned the gun. [Moore] and the seller went together to the pawnshop where the gun was redeemed, [Moore] 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: "[Moore'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 [Reuel Eugene] Van Ness[, Jr.,] homicide. Apparently on the evening prior to the Van Ness murder, [Moore] 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. [Moore] 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 [Moore] 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, [Moore'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,' [Moore] would just not identify himself as the fare In his confessions [Moore] stated that he killed each of the victims in order that the victim would not be able to identify him as the robber.
for which the cab had been summoned. When ... Van Ness arrived at the Smoke Pit on August 22, 1979, [Moore] determined that this was the driver who would be robbed and shot because 'he wasn't too young'.
Moore thereafter, on June 29, 1982, filed a motion for postconviction relief, which the district court denied on May 6, 1983, and which denial we affirmed on June 8, 1984. State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984).
As a consequence, on November 14, 1984, Moore sought relief through a petition for a writ of habeas corpus filed in the U.S. District Court for the District of Nebraska. That court granted Moore relief by an order dated September 20, 1988. Moore v. Clarke, No. CV84-L-754 (D.Neb. Sept. 20, 1988). The State of Nebraska, the plaintiff-appellee in the instant proceeding, then appealed the Clarke decision to the U.S. Court of Appeals for the Eighth Circuit, which, on May 25, 1990, affirmed the grant of habeas corpus relief, holding unconstitutionally vague, both on its face and as interpreted by this court, the italicized exceptional depravity component of aggravating circumstance Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1995), that is, that the "murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence." (Emphasis supplied.) Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990), cert. denied 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992).
The U.S. District Court thereafter, on July 1, 1992, issued an order directing that Moore's sentences be reduced to life imprisonment unless the State initiated resentencing proceedings within 60 days. On July 23, the State filed in this court a motion asking that we redefine the exceptional depravity component of aggravating circumstance § 29-2523(1)(d) so as to satisfy the federal courts' constitutional objections, apply such redefinition to the circumstances of the case, reweigh all the aggravating and mitigating circumstances, and determine appropriate sentences. We noted that although we were of the view that this court possessed the authority to resentence Moore, the Eighth Circuit thought otherwise; we therefore concluded that notwithstanding that we were not bound by the Eighth Circuit's view, the interests of judicial economy would be better served by remanding the cause to the district court. We thus did so on July 9, 1993. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993).
Moore claims, in reorganized order, that the resentences cannot stand because (1) the proceedings at which they were imposed were untimely, (2) the resentencing panel applied the unconstitutional aggravating circumstance § 29-2523(1)(b), (3) the resentencing panel impermissibly formulated and applied a definition of the "exceptional depravity" component of aggravating circumstance § 29-2523(1)(d), (4) the death penalty is applied inconsistently, (5) objective sentencing standards are lacking, (6) the resentencing panel improperly considered Moore's custodial statements, (7) there exists no meaningful proportionality review, and (8) the resentencing panel failed to make appropriate findings.
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