State v. Pope, 38945

• Decision Date: 09 November 1973
• Docket Number: No. 38945,38945
• Citation: 190 Neb. 689,211 N.W.2d 923
• Parties: STATE of Nebraska, Appellee, v. Duane POPE, Appellant.
• Court: Nebraska Supreme Court

Page 923

211 N.W.2d 923

190 Neb. 689

STATE of Nebraska, Appellee, v. Duane POPE, Appellant.

No. 38945.

Supreme Court of Nebraska.

Nov. 9, 1973.

Syllabus by the Court

1. The double jeopardy clauses of the United States and Nebraska Constitutions do not preclude successive prosecutions by federal and Nebraska governments in the exercise of concurrent jurisdiction over substantially the same offense.

2. The double jeopardy clauses do not prevent Nebraska fixing higher standards by statute or, in the absence of statute, by judicial decision.

3. At common law, where there is concurrent jurisdiction over substantially the same offense, the determination of whether a federal conviction bars prosecution by Nebraska depends upon vindication of the public policy of the State.

4. Where there is concurrent jurisdiction over substantially the same offense and the public policy of the State requires vindication, then in order to make federal punishment for the act a satisfaction and bar to state trial and sentence, it is necessary that the federal sentence should be complete and should have been executed to its full extent.

Wallace M. Rudolph, Robert B. Crosby, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

PER CURIAM:

This is the second appearance of this case in this court. On the former appeal, this court affirmed the conviction of the defendant, Duane Pope, on three counts of murder in the first degree, on which the death penalty was imposed. See State v. Pope, 186 Neb. 489, 184 N.W.2d 395. The current appeal follows the resentencing of the defendant Pope following the vacation of the state death sentence by the United States Supreme Court. See Pope v. Nebraska, 408 U.S. 933, 92 S.Ct. 2870, 33 L.Ed.2d 745.

The three murder counts in this state prosecution, each naming a different victim, arose from the same conduct which had led to a federal indictment and conviction of Pope. The three corresponding federal counts charged that (1) on June 4, 1965, Pope shot and killed the three victims, and (2) at the time he was robbing Farmers State Bank, a federally insured bank at Big Springs, Nebraska. Pope was found guilty by a federal jury and the United States District Court imposed a death sentence on each of the three counts. Following appeal to the United States Supreme Court, the death sentence was vacated and the cause remanded to the United States District Court for resentencing. On remand, that court resentenced Pope to life imprisonment on two of the three counts and to 99 years on the other, the sentences to run concurrently. The judgment was affirmed. Pope v. United States, 434 F.2d 325 (8th Cir., 1970). Pope is now in the custody of the United States serving those federal sentences.

Meanwhile, in 1969, the Nebraska state prosecution of Pope was commenced in the District Court for Deuel County. Jury trial was waived and trial was had to the court on November 5, 1969, under a stipulation that 'the testimony, evidence and exhibits to be offered by the prosecution and the defense shall be the same testimony, evidence and exhibits that were offered and received at the trial of this defendant in the United States District Court.'

On January 29, 1970, the District Court found Pope guilty on all counts and sentenced him to death on each of the three murder counts. On appeal to this court, the judgment of the District Court was affirmed. See State v. Pope, Supra. On appeal to the United States Supreme Court, that court vacated the sentences 'insofar as it leaves undisturbed the death penalty imposed' and remanded the cause for further proceedings. Pope v. Nebraska, 408 U.S. 933, 92 S.Ct. 2870, 33 L.Ed.2d 745.

Upon remand, the District Court for Deuel County resentenced Pope to three life sentences on the three murder counts, the sentences to run consecutively, and all sentences to begin after the federal sentences are served.

Although the defendant has reargued the double jeopardy issues under the provisions of the United States and Nebraska Constitutions, this court specifically held in its former opinion that the double jeopardy clauses of the United States and Nebraska Constitutions do not prohibit successive prosecutions by federal and Nebraska governments in the exercise of concurrent jurisdiction over substantially the same offense. We also held that the constitutional double jeopardy provisions set minimum limits. They do not prevent Nebraska from fixing higher standards by statute or, in the absence of statute, by judicial decision. This court adheres to those determinations.

This court also held that at common law, where there is concurrent jurisdiction over substantially the same offense, the determination of whether a federal conviction bars prosecution by Nebraska depends upon vindication of the public policy of the State. We held that the disparity between a life sentence and death sentence was sufficiently great that the conviction and sentencing of Pope under the federal statute did not vindicate the public policy of Nebraska.

The thrust of defendant's argument on this appeal is that since the Nebraska death penalty was vacated by the United States Supreme Court, and only life sentences as a maximum are now available for either the federal or state prosecutions, there is no longer any reason for public policy to vindicate the action of Nebraska in imposing a second punishment for the same conduct. The basis for defendant's argument on this issue rests on the common law as opposed to the constitutional double jeopardy guaranties. Defendant contends that this state has adopted the common law doctrine which prohibited a second punishment for the same offense and that section 83--1, 106, R.R.S.1943, indicates clearly the policy of the state not to punish persons twice for the same conduct. That section provides in part: '(1) Credit against the maximum term and any minimum term may be given * * * to an offender for time spent in custody as a result of the * * * conduct on which such a charge is based.

'(2) Credit against the maximum term and any minimum term may be given to an offender for time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same conduct. In the case of such a reprosecution, this may include credit in accordance with subsection (1) of this section for time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same conduct.'

This statute clearly does not prohibit a second trial for offenses arising out of the same conduct. Neither does it specifically indicate any direct federal-state application. Nevertheless, it does clearly articulate a policy that persons should only be punished...