State v. Palmer, No. 84-733

CourtSupreme Court of Nebraska
Writing for the CourtKRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ., and BLUE; PER CURIAM; WHITE; SHANAHAN; KRIVOSHA
Citation399 N.W.2d 706,224 Neb. 282
Decision Date29 December 1986
Docket NumberNo. 84-733
PartiesSTATE of Nebraska, Appellee, v. Charles Jess PALMER, also known as Charles Tinsley, also known as J.R. Kirkpatrick, Appellant.

Page 706

399 N.W.2d 706
224 Neb. 282
STATE of Nebraska, Appellee,
v.
Charles Jess PALMER, also known as Charles Tinsley, also known as J.R. Kirkpatrick, Appellant.
No. 84-733.
Supreme Court of Nebraska.
Dec. 29, 1986.

Page 710

Syllabus by the Court

1. Convictions: Circumstantial Evidence. One charged in a criminal case may be convicted on the basis of circumstantial evidence.

2. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction in a criminal prosecution, it is not the province of the Nebraska Supreme Court to resolve conflicts in the evidence, pass upon the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence, as such matters are for the jury.

3. Verdicts: Appeal and Error. The verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

4. Criminal Law: Statutes: Sentences. In a general sense an ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.

5. Criminal Law: Statutes: Sentences. Not all retroactive legislation is in violation of the prohibition against ex post facto laws.

6. Criminal Law: Statutes: Sentences. A legislature may not enact any law which imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that then prescribed.

7. Criminal Law: Statutes. Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage, for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punishment therefor than was prescribed at the time of its commission, nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.

8. Criminal Law: Trial: Pretrial Procedure. No one has a vested right in a procedure; procedural matters can be changed at any time before trial and are binding on the defendant.

9. Statutes. In the absence of anything indicating the contrary, statutory language is to be given its plain and ordinary meaning.

10. Criminal Law: Words and Phrases. A "crime" is an act or omission for which one is subject to punishment by public authority.

11. Criminal Law: Words and Phrases. "Violence" is the exertion of physical force so as to injure or abuse.

12. Criminal Law: Words and Phrases. "Crime of violence" is an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority.

13. Statutes. Where the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language.

[224 Neb. 283] 14. Double Jeopardy: Appeal and Error. Retrial after reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute double jeopardy.

15. Prosecuting Attorneys. That a county attorney vigorously prosecutes one accused of a crime does not constitute prosecutorial misconduct.

16. Evidence: Judges: Trial. The receipt of evidence which may later be excluded because of a difficult or complicated rule of law does not constitute judicial misconduct.

17. Witnesses: Hypnosis. A witness is not rendered incompetent merely because he or she was hypnotized during the investigatory phase of the case. Such a witness may testify with regard to those matters which he or she was able to recall and relate prior to hypnosis, provided that there is sufficient evidence to satisfy the

Page 711

court that the evidence was known and related prior to hypnosis.

18. Convictions: Identification Procedures: Photographs. Each case must be considered on its own facts, and convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

19. Convictions: Identification Procedures: Photographs. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

20. Death Penalty: Expert Witnesses. The proportionality of a death sentence is for court determination and is not a subject for expert testimony.

21. Rules of Evidence: Sentences. The traditional rules of evidence may be relaxed following conviction so that the sentencing authority can receive all information pertinent to the imposition of sentence.

22. Death Penalty: Evidence: 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).

23. Constitutional Law: Death Penalty: Aggravating and Mitigating Circumstances. The statutory aggravating circumstances set out in Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1985) are not unconstitutionally vague.

24. Constitutional Law: Criminal Law: Convictions. A convicted defendant is not entitled to all of the same rights accorded one merely accused of a crime but not yet convicted.

25. Constitutional Law: Death Penalty: Juries. There is no constitutional requirement that the death penalty be imposed by a jury.

26. Death Penalty: Statutes: Words and Phrases: 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 [224 Neb. 284] operate in conjunction with or independent of one another.

27. Death Penalty: 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.

28. Death Penalty: Aggravating and Mitigating Circumstances: Words and Phrases. 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.

29. Death Penalty: Aggravating and Mitigating Circumstances: Words and Phrases. 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.

30. Death Penalty: Aggravating and Mitigating Circumstances: Words and Phrases. 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

Page 712

of the crime; or (5) helplessness of the victim.

31. Death Penalty: Supreme Court: 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.

John A. Wolf and David A. Bush, Grand Island, for appellant.

Charles Jess Palmer, pro se.

Robert M. Spire, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ., and BLUE, District Judge.

PER CURIAM.

The defendant, Charles Jess Palmer, appeals from a jury verdict finding him guilty of felony murder under Neb.Rev.Stat. § 28-303(2) (Reissue 1985), and from a sentence imposed by a three-judge court ordering Palmer to be executed for the crime in accordance with the provisions of Neb.Rev.Stat. §§ 29-2521 et seq. (Reissue 1985). This case has twice before [224 Neb. 285] been to this court. See, State v. Palmer, 210 Neb. 206, 313 N.W.2d 648 (1981) (Palmer I ); State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983) (Palmer II ). The relevant facts are as follows.

From August of 1977 to the time of the murder, the defendant and his wife lived and worked near Guide Rock, Nebraska. Their son, Jess, was born July 4, 1978. The victim, Eugene Zimmerman, operated a coin shop in his home in Grand Island, Nebraska.

The Palmers' first contact with the victim occurred in October of 1978. Mrs. Palmer telephoned Zimmerman and arranged a meeting. The Palmers intended to offer coins and silver objects for sale. The Palmers, with their baby, drove to the Zimmerman house, and the defendant waited in the truck while Mrs. Palmer negotiated the sale. In late December of 1978 Mrs. Palmer called Zimmerman and offered to sell additional coins and silver. On this occasion the defendant and the baby accompanied Mrs. Palmer into the Zimmerman residence. In late February of 1979 all three again went into the residence while Mrs. Palmer sold Zimmerman some silver baby spoons. When she asked him if he would be interested in buying two or three gold wedding bands, Zimmerman responded that he would. On March 5, 1979, Mrs. Palmer returned...

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109 practice notes
  • Moore v. Kinney, No. 4:99CV3263.
    • United States
    • U.S. District Court — District of Nebraska
    • November 14, 2000
    ...of State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). See State v. Palmer, 224 Neb. 282, 318-20, 399 N.W.2d 706, 731-32 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). The factors which tended to narrow ......
  • Moore v. Kinney, No. 00-4079.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 25, 2002
    ...of the statute constitutional." Id. In emphasizing the ambiguous state of § 29-2523(1)(d), the court made clear that State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), which articulated five circumstances in which the exceptional depravity aggravator was applicable,1 failed to adequately......
  • Moore v. Kinney, No. 00-4079.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 10, 2003
    ...pointed out that "exceptional depravity" was further narrowed with the advent of the five-factor test first enunciated in State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 731-32 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). Citing Walton v. Arizona, Lewis v. Jeffer......
  • Williams v. Clarke, No. 93-2733
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 25, 1995
    ...or formula required in a court's consideration of aggravating and mitigating circumstances under Sec. 29-2523." State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 729 (1986). The weighing process in Nebraska is not a mere counting up of aggravating factors but requires a careful examination and......
  • Request a trial to view additional results
109 cases
  • Moore v. Kinney, No. 4:99CV3263.
    • United States
    • U.S. District Court — District of Nebraska
    • November 14, 2000
    ...of State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). See State v. Palmer, 224 Neb. 282, 318-20, 399 N.W.2d 706, 731-32 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). The factors which tended to narrow ......
  • Moore v. Kinney, No. 00-4079.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 25, 2002
    ...of the statute constitutional." Id. In emphasizing the ambiguous state of § 29-2523(1)(d), the court made clear that State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), which articulated five circumstances in which the exceptional depravity aggravator was applicable,1 failed to adequately......
  • Moore v. Kinney, No. 00-4079.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 10, 2003
    ...pointed out that "exceptional depravity" was further narrowed with the advent of the five-factor test first enunciated in State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 731-32 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). Citing Walton v. Arizona, Lewis v. Jeffer......
  • Williams v. Clarke, No. 93-2733
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 25, 1995
    ...or formula required in a court's consideration of aggravating and mitigating circumstances under Sec. 29-2523." State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 729 (1986). The weighing process in Nebraska is not a mere counting up of aggravating factors but requires a careful examination and......
  • Request a trial to view additional results

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