State v. Moore

• Decision Date: 09 July 1993
• Docket Number: No. S-43557,S-43557
• Citation: 502 N.W.2d 227,243 Neb. 679
• Parties: STATE of Nebraska, Appellee, v. Carey Dean MOORE, Appellant.
• Court: Nebraska Supreme Court

Page 227

502 N.W.2d 227

243 Neb. 679

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

No. S-43557.

Supreme Court of Nebraska.

July 9, 1993.

Syllabus by the Court

1. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. Appellate courts have three options in death penalty cases where the trial court errs in finding aggravating and mitigating circumstances: First, the court may analyze and reweigh the aggravating and mitigating circumstances to determine whether or not the scale tips in favor of the death penalty; second, the court may conduct a harmless error analysis; third, the court may remand the cause for a new sentencing hearing.

2. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Proof. The aggravating factors of Neb.Rev.Stat. § 29-2523(1) (Reissue 1989) which are applied to determine whether the death penalty is appropriate must be proven beyond a reasonable doubt.

Alan E. Peterson, of Cline, Williams, Wright, Johnson & Oldfather, for appellant.

Don Stenberg, Atty. Gen., and J. Kirk Brown, for appellee.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ., and CHEUVRONT, District Judge.

WHITE, Justice.

This case is before us on the State's motion for the resentencing of Carey Dean Moore. The U.S. District Court for the District of Nebraska granted Moore habeas corpus relief and ordered his death sentence reduced to life imprisonment unless the State initiated capital resentencing proceedings.

Moore was convicted of two counts of first degree murder for the 1979 deaths of Reuel Eugene Van Ness, Jr., and Maynard D. Helgeland. The facts of the crimes are set out in our opinion in State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864. A three-judge sentencing panel imposed the death penalty on both counts. On direct appeal, we affirmed the conviction and sentence. State v. Moore, supra. Moore was denied postconviction relief by the district court, and we affirmed. State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984).

The U.S. District Court for the District of Nebraska granted Moore a writ of habeas corpus, finding that the "exceptional depravity" element of Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1989) applied by the sentencing panel to justify the death penalty was unconstitutional.

On appeal by the State, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court's decision. Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990), reh'g denied, 951 F.2d 895 (8th Cir.1991), cert. denied, 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992). The sole issue on appeal was the constitutionality of the phrase "manifested exceptional depravity by ordinary standards of morality and intelligence" contained in § 29-2523(1)(d). The court of appeals agreed with the district court that this phrase was unconstitutionally vague and further held that the case law interpreting it "provides insufficient guidance to a sentencing body called upon to determine whether a particular murder 'manifested exceptional depravity.' " Moore v. Clarke, 904 F.2d at 1233.

On July 1, 1992, the federal district court ordered the death sentence reduced to life imprisonment unless the State filed for capital resentencing proceedings within 60 days. The State timely filed a motion for resentencing, which was granted by this court.

In its motion, the State requests that we define the "exceptional depravity" element of the aggravating circumstance described in § 29-2523(1)(d) to satisfy the federal court's objections as to constitutionality, apply this definition to the circumstances of the case, reweigh all the aggravating and mitigating factors applicable to the imposition of the death penalty, and determine an appropriate sentence. However, this opinion will not reach the issue of constitutionality of the aggravating circumstance described in § 29-2523(1)(d), nor will we determine the propriety of the death sentence in this case. Although we believe, as indicated below, that this court has the authority to resentence Moore, in the interest of judicial economy we remand this cause to the district court for Douglas County for resentencing.

In State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991), we addressed the issue concerning our authority to determine the propriety of a death sentence by reweighing the aggravating and mitigating factors of the case. In Reeves' prior direct appeal, we found that the sentencing panel improperly applied the aggravating circumstance described in § 29-2523(1)(d) and failed to consider a mitigating circumstance. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). After reweighing the aggravating and mitigating factors, we affirmed the district court's conviction and sentence. Id. Reeves was denied postconviction relief by the district court, and we affirmed. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990). The U.S. Supreme Court granted Reeves' petition for writ of certiorari, vacated our decision on postconviction relief, and remanded the cause to us for reconsideration in light of the Court's decision in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). On remand, we analyzed the implications of Clemons and found:

In summary, Clemons ... sets forth three options available to appellate courts in death penalty cases where there has been an error concerning the trial court's finding of aggravating and/or mitigating circumstances. First, the court may analyze and reweigh the aggravating and mitigating circumstances itself to determine whether or not the scale tips in favor of the death penalty. Second, the court may conduct a harmless error analysis to determine whether or not error by the district court in finding aggravating or mitigating circumstances has prejudiced the rights of the defendant. Third, the court may remand the cause for a new sentencing hearing.

State v. Reeves, 239 Neb. at 423, 476 N.W.2d at 834.

Moore questions the authority of this court to resentence him. As indicated in State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984), we have the authority to resentence by analyzing and reweighing the aggravating and mitigating factors of the case.

It should be noted that in another Nebraska death penalty case the U.S. Court of Appeals for the Eighth Circuit held that Clemons did not authorize this court to reweigh when the sentence imposed was based entirely on invalid considerations. Rust v. Hopkins, 984 F.2d 1486 (8th Cir.1993), cert. denied, 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993) (No. 92-1679). In our opinion disposing of Rust's direct appeal, we acknowledged that this court had on the same day in another case held that facts indicating the existence of an aggravating factor must be proven beyond a reasonable doubt. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977), cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198. Recognizing that the sentencing panel may not have applied this newly mandated burden of proof, we reviewed the evidence and concluded that the aggravating factors had been proven beyond a reasonable doubt. State v. Rust, supra. After reweighing the mitigating and aggravating factors, we affirmed the conviction and sentence. Subsequently, Rust sought and received habeas corpus relief from the federal district court. On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed. Rust v. Hopkins, supra. That court's decision was based in part upon its finding that Clemons did not authorize appellate court reweighing to cure a sentencing panel's failure to apply the correct burden of proof. Rust v. Hopkins, supra.

We recognize, of course, that an appellate court is fully...