State v. Reeves
Decision Date | 16 March 1990 |
Docket Number | No. 88-972,88-972 |
Citation | 234 Neb. 711,453 N.W.2d 359 |
Parties | STATE of Nebraska, Appellee, v. Randolph K. REEVES, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1.Postconviction: Appeal and Error.A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated.
2.Postconviction: Appeal and Error.A defendant in a postconviction proceeding may not raise questions which could have been raised on direct appeal unless the questions are such that they would make the judgment of conviction void or voidable under the state or federal Constitution.
3.Postconviction: Proof: Appeal and Error.One seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly wrong.
4.Postconviction: Effectiveness of Counsel: Proof.When, in a postconviction motion, a defendant alleges a violation of his or her constitutional right to effective assistance of counsel, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as an attorney with ordinary training and skill in the criminal law in the area.Further, there must be a showing of how the defendant was prejudiced in the defense of his or her case as a result of the attorney's actions or inactions.
5.Postconviction: Effectiveness of Counsel: Proof.A defendant must show that (1)counsel's performance was deficient and (2) such deficient performance prejudiced the defense.
6.Constitutional Law: Criminal Law: Effectiveness of Counsel: Death Penalty.The sixth amendment's requirement of effective assistance of counsel applies to a capital sentencing proceeding in the same manner in which it applies to the conviction phase of a criminal proceeding.
7.Postconviction: Evidence: Witnesses: Appeal and Error.In an evidentiary hearing for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact, including the credibility and weight to be given the testimony of a witness, and the trial court's findings will be upheld unless the findings are clearly erroneous.
8.Constitutional Law: Death Penalty: Aggravating and Mitigating Circumstances: Other Acts.It is constitutionally permissible to allow the sentencing judge or judges in a capital case to consider unadjudicated misconduct in determining the existence or nonexistence of a mitigating circumstance, provided the defendant is given an opportunity to rebut the charges.
9.Constitutional Law: Death Penalty: Aggravating and Mitigating Circumstances: Prior Convictions.It is constitutionally permissible to allow the sentencing judge or judges in a capital case to consider prior uncounseled convictions in determining the existence or nonexistence of a mitigating circumstance.
10.Death Penalty: Aggravating and Mitigating Circumstances: Proof.There is no burden of proof with regard to mitigating circumstances.The State may present evidence which is probative of the nonexistence of a statutory or nonstatutory mitigating circumstance, while the defendant may present evidence which is probative of the existence of a statutory or nonstatutory mitigating circumstance.However, because Neb.Rev.Stat. §§ 29-2521 et seq.(Reissue 1989) do not require the State to disprove the existence of mitigating circumstances, they do place the risk of nonproduction and nonpersuasion on the defendant.
11.Constitutional Law: Homicide: Sentences.Neb.Rev.Stat. § 29-2520(Reissue 1989) is not unconstitutional.
12.Constitutional Law: Death Penalty: Aggravating and Mitigating Circumstances.Neb.Rev.Stat. § 29-2523(2)(Reissue 1989) is not unconstitutional.
13.Constitutional Law: Death Penalty: Aggravating and Mitigating Circumstances.The federal Constitution does not require the sentencing judge or judges to make specific written findings with regard to nonstatutory mitigating factors.
14.Constitutional Law: Homicide: Death Penalty: Aggravating and Mitigating Circumstances: Notice.The specific delineation of aggravating factors in Neb.Rev.Stat. § 29-2523(Reissue 1989) constitutes sufficient notice to a defendant who is charged with first degree murder.The State is not constitutionally required to provide the defendant with notice as to which particular aggravating circumstance or circumstances the State will rely upon in pursuing the death penalty.
15.Death Penalty: Aggravating and Mitigating Circumstances.Neb.Rev.Stat. § 29-2523(Reissue 1989) exclusively lists the aggravating factors which may be relied upon in imposing the death penalty.
16.Constitutional Law: Death Penalty: Aggravating and Mitigating Circumstances.Mitigating circumstance (2)(c) of Neb.Rev.Stat. § 29-2523(Reissue 1989), which limits mental or emotional disturbance to cases which are extreme, is not constitutionally infirm where court decisions permit consideration of any aspects of mitigation.
17.Constitutional Law: Homicide: Indictments and Informations.A state is not constitutionally required to prosecute capital cases by grand jury indictment only.
18.Homicide: Intent.No specific intention is required to constitute felony murder other than the intent to do the act which constitutes the felony during which the murder occurred.
19.Homicide: Intent.There need not be an intent to kill in felony murder, only an intent to commit the underlying felony.
20.Constitutional Law: Death Penalty: Aggravating and Mitigating Circumstances.Aggravating circumstance (1)(b) of Neb.Rev.Stat. § 29-2523(Reissue 1989) is not unconstitutionally vague.
21.Constitutional Law: Supreme Court: Death Penalty: Sentences: Appeal and Error.This court's interpretation of 1978 Neb.Laws, L.B. 711, to include in its proportionality review only those cases in which the death penalty was imposed, does not violate the separation of powers clause of Neb. Const. art. II.
22.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 pleading 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.
23.Constitutional Law: Death Penalty: Intoxication.Imposing the death penalty on a defendant who cannot recollect the circumstances of the crime due to voluntary intoxication does not constitute cruel and unusual punishment under the eighth amendment.
John Stevens Berry, Thomas R. Lamb, and Robert B. Creager, of Berry, Anderson, Creager & Wittstruck, P.C., and Stanley D. Cohen and, on brief, Deborah K. Long, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., Harold I. Mosher, Lincoln, and Sharon M. Lindgren, for appellee.
This is an appeal from the Lancaster County District Court's denial of postconviction relief.We affirm.
The facts are set forth in this court's decision on direct appeal.SeeState v. Reeves, 216 Neb. 206, 344 N.W.2d 433(1984).In 1981, appellant was convicted of two counts of first degree murder in the 1980 deaths of Janet Mesner and Victoria Lamm.He was prosecuted under a felony murder theory, the State alleging that the deaths occurred in the commission or attempted commission of a sexual assault in the first degree.At trial appellant argued that he was not guilty of the felony murder counts because of his inability (due to voluntary ingestion of mescaline and alcohol) to form the requisite intent needed for a first degree sexual assault or an attempted first degree sexual assault.Alternatively, in the event the jury found that he could entertain the intent to commit the sexual assault or attempted sexual assault, he pled not guilty by reason of insanity.At the conclusion of the trial the jury found appellant guilty on both counts of first degree murder.
Appellant was later sentenced by a three-judge panel to death for each conviction.The sentencing panel found with regard to the death of Victoria Lamm the existence of the aggravating circumstance described in Neb.Rev.Stat. § 29-2523(1)(b)(Reissue 1989), which reads: "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."The panel also found the existence of the aggravating circumstance stated in § 29-2523(1)(d), which reads: "The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence."Lastly, the panel found the existence of the aggravating circumstance at § 29-2523(1)(e), which reads: "At the time the murder was committed, the offender also committed another murder."
With regard to the death of Janet Mesner, the panel found the existence of aggravating circumstances (1)(d) and (1)(e).
The panel found that no statutory mitigating circumstances existed with regard to either murder.The panel also considered nonstatutory mitigating factors proposed by appellant.
On direct appeal, this court affirmed appellant's convictions and sentences.We affirmed the panel's findings of aggravating circumstances (1)(d) and (1)(e) with regard to the death of Janet Mesner; however, with regard to the murder of Victoria Lamm, we determined that the panel erred as a matter of law in finding the existence of aggravating circumstance...
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