State v. Otey
| Decision Date | 11 January 1991 |
| Docket Number | No. 90-289,90-289 |
| Parties | STATE of Nebraska, Appellee, v. Harold Lamont OTEY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Homicide: Sentences: Death Penalty: Aggravating and Mitigating Circumstances. Whether a defendant convicted of first degree murder receives life imprisonment or the death penalty shall be based upon three considerations: (1) whether sufficient aggravating circumstances exist to justify imposition of a sentence of death; (2) whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances; or (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
2. Postconviction: Proof. One moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution, causing the judgment against the movant to be void or voidable. The movant has the burden of establishing the basis for such relief, and a conviction will not be set aside in the absence of a showing of actual prejudice.
3. Postconviction: Appeal and Error. The findings of the postconviction hearing court will not be disturbed unless they are clearly wrong.
4. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased.
5. Postconviction. A defendant is entitled to bring a second proceeding for postconviction relief only if the grounds relied upon did not exist at the time the first motion was filed.
6. Sentences: Death Penalty: 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.
7. Homicide: Death Penalty: Aggravating and Mitigating Circumstances. Aggravating circumstance Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1989) literally, and as interpreted by this court, describes in the disjunctive two separate circumstances which may operate in conjunction with or independent of one another. The first circumstance is that the murder was especially heinous, atrocious, or cruel. The second circumstance pertains to the state of mind of the actor.
8. Homicide: Death Penalty: Aggravating and Mitigating Circumstances: Proof. The State needs to prove only the first prong of Neb.Rev.Stat § 29-2523(1)(d) (Reissue 1989) for that aggravating circumstance to exist. To constitute an aggravating circumstance under the first prong of § 29-2523(1)(d), the murder must be especially heinous, atrocious, or cruel.
9. Homicide: Death Penalty: Aggravating and Mitigating Circumstances: Proof. "Especially heinous, atrocious, [or] cruel" is limited to cases where torture, sadism, or the imposition of extreme suffering exists, or where the murder was preceded by acts performed for the satisfaction of inflicting either mental or physical pain or that pain existed for any prolonged period of time.
10. Postconviction: Right to Counsel. Where the record fails to present a justiciable issue of law and fact to the court in a postconviction action, it is not an abuse of discretion to fail to appoint counsel for an indigent.
11. Constitutional Law: Postconviction: Death Penalty: Right to Counsel. As a matter of federal constitutional law, neither the eighth amendment nor the due process clause requires states to appoint counsel for indigent death row inmates seeking state postconviction relief.
12. Postconviction. A court is not required to grant an evidential hearing on a motion for postconviction relief which alleges only conclusions of law or fact; nor is an evidential hearing required under the Nebraska Postconviction Act when (1) the motion for postconviction relief does not contain sufficient factual allegations concerning a denial or violation of constitutional rights affecting the judgment against the movant, or (2) notwithstanding proper pleadings of facts in a motion for postconviction relief, the files and records in the movant's case do not show a denial or violation of the movant's constitutional rights causing the judgment against the movant to be void or voidable.
Jerry L. Soucie, for appellant.
Robert M. Spire, Atty. Gen., and Sharon M. Lindgren, for appellee.
In his second postconviction relief motion, Harold Lamont Otey, who was convicted of first degree murder and sentenced to death more than 12 years ago, asks this court to examine issues which were, or could have been, raised in his direct appeal or in his first postconviction relief motion, both of which were decided adversely to him by this court.
While the issues raised in Otey's second postconviction relief motion are procedurally barred, we have, nevertheless, reweighed the aggravating and mitigating circumstances applicable in this death sentence case and find that Otey's latest postconviction motion to vacate his conviction of first degree murder and his death sentence is without merit.
The pertinent facts surrounding the murder are set forth in State v. Otey, 205 Neb. 90, 91-92, 287 N.W.2d 36, 38-39 (1979) (Otey I ):
The murder was committed during the early morning hours of June 11, 1977, in Omaha, Nebraska. The defendant entered the apartment of the victim and took a stereo set which he placed behind a garage nearby. This stereo was later identified and traced back to the defendant.
The victim awakened when the defendant reentered the apartment. The defendant told the victim that he was going to rob her and that he would rape her. When she resisted he inflicted a knife wound across the top of her forehead. The defendant then sexually assaulted the victim. After the sexual assault the defendant and the victim went to the second floor of the apartment to get her money. There the defendant stabbed the victim a number of times inflicting deep wounds, struck her about the head with a hammer, and strangled her with a belt. The evidence shows that the victim died from the multiple wounds and strangulation inflicted upon her by the defendant.
The defendant was apprehended in Florida in January 1978. On January 28, 1978, he was interviewed there by two Omaha police officers and after proper warnings gave a voluntary statement which was a full confession.
Following a jury trial, during which he was represented by a Douglas County public defender, Otey was convicted of first degree murder while in the perpetration of a first degree sexual assault, which is punishable by life imprisonment or a sentence of death. See Neb.Rev.Stat. §§ 28-303 (Reissue 1989) and 28-105 (Reissue 1985). Pursuant to Neb.Rev.Stat. § 29-2520 (Reissue 1975), a three-judge panel was convened to determine the sentence to be imposed on Otey.
Neb.Rev.Stat. § 29-2522 (Reissue 1989) now provides in substance that whether a defendant convicted of first degree murder receives life imprisonment or the death penalty shall be based upon three considerations: (1) whether sufficient aggravating circumstances exist to justify imposition of a sentence of death; (2) whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances; or (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Neb.Rev.Stat. § 29-2523 (Reissue 1989) defines aggravating and mitigating circumstances as follows:
(1) Aggravating Circumstances:
(a) The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity;
(b) The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime;
(c) The murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant;
(d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence;
(e) At the time the murder was committed, the offender also committed another murder;
(f) The offender knowingly created a great risk of death to at least several persons;
(g) The victim was a law enforcement officer or a public servant having custody of the offender or another; or
(h) The crime was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws.
(2) Mitigating Circumstances:
a) The offender has no significant history of prior criminal activity;
(b) The offender acted under unusual pressures or influences or under the domination of another person;
(c) The crime was committed while the offender was under the influence of extreme mental or emotional disturbance;
(d) The age of the defendant at the time of the crime;
(e) The offender was an accomplice in the crime committed by another person and his participation was relatively minor;
(f) The victim was a participant in the defendant's conduct or consented to the act; or
(g) At the time of the crime, the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental illness, mental defect, or intoxication.
After an evidentiary hearing, the sentencing panel found that "the murder was committed 'to conceal the identity of the perpetrator of a crime' and that 'the murder was especially heinous, atrocious, cruel, and manifested exceptional...
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