State v. Reeves

• Decision Date: 08 November 1991
• Docket Number: No. 88-972,88-972
• Citation: 476 N.W.2d 829,239 Neb. 419
• Parties: STATE of Nebraska, Appellee, v. Randolph K. REEVES, Appellant.
• Court: Nebraska Supreme Court

Page 829

476 N.W.2d 829

239 Neb. 419

STATE of Nebraska, Appellee, v. Randolph K. REEVES, Appellant.

No. 88-972.

Supreme Court of Nebraska.

Nov. 8, 1991.

Syllabus by the Court

1. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. Nebraska is a "weighing" state and is therefore governed by Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). A single judge or the three-judge panel determines the aggravating and mitigating circumstances and decides whether to impose the death penalty by determining whether the aggravating circumstances outweigh the mitigating circumstances. Neb.Rev.Stat. §§ 29-2520 and 29-2522 (Reissue 1989).

2. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. The balancing of aggravating circumstances against mitigating circumstances is not merely a matter of number counting 3. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Proof. The findings on which an aggravating circumstance is based must be proved beyond a reasonable doubt.

but, rather, requires a careful weighing and examination of the various factors. The procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but, rather, a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.

4. Constitutional Law: Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. In a "weighing" state, when an appellate court invalidates one or more of the aggravating circumstances, or finds as a matter of law that any mitigating circumstance exists not considered by the sentencing panel in its balancing, the appellate court may, consistent with the U.S. Constitution, reweigh the remaining circumstances or conduct a harmless error analysis.

5. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. The appellate court may consider the entire record of trial and sentencing anew, or may rely on the findings of the sentencing panel, provided the court makes independent findings and reviews all the aggravating and mitigating circumstances.

6. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. Our review under Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), requires an independent examination of the trial record, the presentence investigation, and the findings of the sentencing panel in order to determine the existence or nonexistence of aggravating and mitigating circumstances, as well as a reweighing of all the factors.

7. Sentences: Death Penalty: Appeal and Error. A harmless error analysis is permitted in appellate review of death penalty sentences.

8. Criminal Law: Trial: Juries: Appeal and Error. Harmless error exists in a jury trial of a criminal case when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in a verdict adverse to a substantial right of the defendant.

9. Constitutional Law: Convictions: Appeal and Error. An otherwise valid conviction should not be set aside if the reviewing court concludes that the constitutional error was harmless beyond a reasonable doubt.

10. Homicide: Death Penalty: Aggravating and Mitigating Circumstances. Aggravating circumstance Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1989) describes two separate disjunctive circumstances which may operate together or independently of one another. The first circumstance is that the murder was especially heinous, atrocious, or cruel. We have said this circumstance includes a pitiless crime which is unnecessarily torturous to the victim and cases where torture, sadism, or the imposition of extreme suffering exists. We have narrowed this class to include murders involving torture, sadism, or sexual abuse.

11. Homicide: Death Penalty: Aggravating and Mitigating Circumstances: Proof. The State need only prove the first prong of Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1989) for that aggravating circumstance to exist.

John Stevens Berry and Robert B. Creager, of Berry, Anderson, Creager & Wittstruck, P.C., Lincoln, for appellant.

Don Stenberg, Atty. Gen., and Sharon M. Lindgren, Lincoln, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

PER CURIAM.

This case is before us on remand from the U.S. Supreme Court. 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 409. Randolph K. Reeves' petition for writ of certiorari was granted, and on November 13, 1990, the U.S. Supreme Court vacated our decision in State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), and remanded the cause to this court for further consideration in light of its decision in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).

In 1981, Reeves was convicted of two counts of first degree murder in the 1980 deaths of Janet Mesner and Victoria Lamm. The facts and circumstances of the crimes are laid out in our opinion in State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). He was sentenced by a three-judge panel to death for each murder. The panel found three aggravating circumstances in regard to the death of Lamm: Neb.Rev.Stat. § 29-2523(1)(b) (Reissue 1989) (the murder was committed in an apparent effort to conceal commission of a crime or to conceal the identity of the perpetrator of a crime), § 29-2523(1)(d) (the murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence), and § 29-2523(1)(e) (at the time the murder was committed, the offender also committed another murder). With regard to the death of Mesner, the panel found to exist aggravating circumstances (1)(d) and (1)(e). The panel found no statutory mitigating circumstances to exist as to either murder, but considered nonstatutory mitigating circumstances presented by Reeves.

On direct appeal, this court affirmed Reeves' convictions and sentences. See State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). However, we invalidated as a matter of law aggravating circumstance (1)(d) as it applied to the murder of Lamm. We also found as a matter of law that mitigating circumstance § 29-2523(2)(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) existed as to both murders.

Reeves filed for postconviction relief, pursuant to Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989), and new counsel was appointed. The district court, after granting an evidentiary hearing, dismissed Reeves' motion. On appeal from the district court's decision, we again affirmed Reeves' convictions and sentences. See State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990). As stated above, Reeves appealed this decision to the U.S. Supreme Court, which granted his petition for writ of certiorari, vacated our decision, and remanded the cause to us for reconsideration in light of Clemons.

THE HOLDING IN CLEMONS V. MISSISSIPPI

In Clemons, the Court considered the validity of a death sentence affirmed by the Mississippi Supreme Court despite the fact that one of the aggravating factors used by the jury in sentencing was constitutionally invalid in light of the Court's decision in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).

At Clemons' sentencing hearing, the State presented evidence establishing two aggravating factors: (1) that the murder was committed during the course of a robbery for pecuniary gain and (2) that it was an "especially heinous, atrocious or cruel" killing. Clemons presented mitigating evidence from his mother and a psychologist. The jury found that the aggravating circumstances outweighed the mitigating circumstances and opted for the death penalty.

The Mississippi Supreme Court found the Maynard case inapplicable and stated that with or without the "especially heinous" aggravating factor, the sentence would have been the same. The court then conducted its proportionality review and affirmed the death sentence.

Clemons claimed violations of his due process and eighth amendment rights. The U.S. Supreme Court rejected Clemons' claim that an appellate court may not uphold a death sentence imposed by a jury The Court also rejected Clemons' contention that an appellate court cannot properly reweigh aggravating and mitigating circumstances and, thus, it is a violation of the eighth amendment for an appellate court to attempt to salvage the death penalty in this manner. The Court stated that appellate courts routinely consider whether the evidence supports the jury verdict and can and do make individualized sentencing determinations based on the evidence in each defendant's case. A court undertakes a similar process during a proportionality review. The Court found nothing unfair or unreliable about appellate reweighing of aggravating or mitigating factors, and stated that such weighing could adequately be accomplished without the assistance of written jury findings.

that has relied in part on an invalid aggravating factor. The Court stated that the Constitution does not require that a jury impose a death sentence or that the jury specify the aggravating factors permitting imposition of the death sentence.

The Court then considered Clemons' claim that the Mississippi court did not actually reweigh the evidence at all. The Court stated that an automatic affirmance, so long as there remained one aggravating circumstance, was not appellate reweighing and would be invalid because the defendant would not receive individualized treatment. The Court said it was unable to determine from...