State v. Reeves

• Citation: 258 Neb. 511,604 N.W.2d 151
• Decision Date: 07 January 2000
• Docket Number: No. S-99-064.,S-99-064.
• Parties: STATE of Nebraska, appellee, v. Randolph K. REEVES, appellant.
• Court: Supreme Court of Nebraska

604 N.W.2d 151

258 Neb. 511

STATE of Nebraska, appellee, v. Randolph K. REEVES, appellant.

No. S-99-064.

Supreme Court of Nebraska.

January 7, 2000.

Paula Hutchinson and Timothy K. Ford, of Counsel, Lincoln, for appellant.

Don Stenberg, Attorney General, and J. Kirk Brown, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

I. NATURE OF CASE

Randolph K. Reeves appeals the order of the district court for Lancaster County denying his "Motion for Postconviction Relief." We reverse the order of the district court, vacate the sentences of death, and remand the cause for resentencing.

II. STATEMENT OF FACTS

Reeves was convicted of two counts of felony murder committed in the course of committing or attempting to commit first degree sexual assault and was sentenced to death on both counts. His convictions and sentences were affirmed on direct appeal. See State v. Reeves, 216 Neb. 206, 344 N.W.2d 433, cert. denied 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 372 (1984) (Reeves I).

The details of the murders underlying Reeves' convictions are set forth in Reeves I and subsequent opinions of this court, and we do not repeat them here. We briefly describe the procedural history of this case in this statement of facts and further discuss the procedural history as necessary to our analysis of Reeves' claims.

Following the affirmance of his convictions and sentences in his direct appeal, Reeves filed a petition in state district court for postconviction relief, which was denied. That denial was affirmed by this court on appeal. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990) (Reeves II).

Reeves successfully petitioned the U.S. Supreme Court for a writ of certiorari. Reeves v. Nebraska, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 409 (1990). Upon granting the petition for a writ of certiorari, the U.S. Supreme Court stated, "judgment vacated, and case remanded for further consideration in light of Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990)." For our purposes, Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), generally held that where a death sentence was imposed upon a criminal defendant based in part upon an invalid or inappropriate conclusion as to the existence of an aggravating circumstance, federal constitutional principles did not prevent a state appellate court from conducting a harmless error review or, alternatively, reweighing the trial evidence to determine if the death sentence was nonetheless appropriate, if the state's law empowered the appellate court to reweigh evidence and the reweighing was performed consistent with that law.

Before the U.S. Supreme Court had announced its decision in Clemons on March 28, 1990, this court had determined in Reeves I on January 20, 1984, that the trial court sentencing panel had erred in its consideration of aggravating and mitigating circumstances but that the death sentence was, nevertheless, justified as to each count. More specifically, in Reeves I, this court concluded that the sentencing panel had erroneously considered a statutory aggravating factor as to one victim, Victoria Lamm, which should not have been applied and failed to consider one mitigating factor as to each victim, Lamm and Janet Mesner.

Following the remand from the U.S. Supreme Court in 1990 but prior to this court's consideration of the case in light of Clemons, Reeves moved this court for an evidentiary hearing, which was denied. Upon remand, this court examined the trial and sentencing evidence and resentenced Reeves to death. State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991), cert. denied 506 U.S. 837, 113 S.Ct. 114, 121 L.Ed.2d 71 (1992) (Reeves III).

Reeves moved this court for a rehearing and a reconsideration of Reeves III, both of which were denied. It is the resentencing by this court in Reeves III stemming from his first postconviction case which was challenged in the instant second postconviction proceeding and is the subject of the current appeal.

Following this court's decision in Reeves III, Reeves sought a writ of habeas corpus in the U.S. District Court for the District of Nebraska challenging, inter alia, the resentencing procedure in Reeves III. Relief was granted, see Reeves v. Hopkins, 871 F.Supp. 1182 (D.Neb.1994), but was reversed in part on appeal to the U.S. Court of Appeals for the Eighth Circuit, see Reeves v. Hopkins, 76 F.3d 1424 (8th Cir.1996). In Reeves v. Hopkins, 871 F.Supp. 1182 (D.Neb.1994), the federal district court granted habeas relief to Reeves on the basis that this court lacked authority to resentence Reeves in Reeves III, thus violating his right to due process. In reaching this conclusion, the district court concluded that this court wrongly read Clemons to hold that if federal law allowed appellate resentencing, state law also allowed it. The district court then extensively considered the Nebraska statutory scheme relating to death sentences and concluded that Nebraska statutes did not provide this court with authority to resentence in Reeves III. In particular, the federal district court stated:

The Nebraska Supreme Court assumed that if federal law allowed appellate reweighing (resentencing), state law also allowed appellate resentencing. When the Nebraska Supreme court made this assumption, it created a state procedure that had not been authorized by the Nebraska Legislature. Even more disturbing, the Reeves III court created and implemented for the first time a sentencing procedure that directly conflicted with the provisions of Nebraska law and arbitrarily deprived Reeves of two important state-created rights: (a) the right to have a sentencing panel including his trial judge make the initial determination of the appropriateness of the death penalty by properly applying aggravating and mitigating factors and thereafter impose the death sentence, and (b) the right to have the decision of the sentencing panel "reviewed" but not supplanted by appellate resentencing.

871 F.Supp. at 1194. The federal district court also relied on Rust v. Hopkins, 984 F.2d 1486 (8th Cir.1993),cert. denied 508 U.S. 967, 113 S.Ct. 2950, 124 L.Ed.2d 697, for further support that this court lacked statutory authority to reweigh and resentence. Rust generally held that Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), allows appellate resentencing only if state law authorizes resentencing at the appellate level. In discussing Rust, the federal district court noted that this court went even further in Reeves III than in Rust by striking one aggravating factor with respect to Lamm and finding the existence of a mitigating factor in the deaths of both Lamm and Mesner. The federal district court concluded that as in Rust, this court's actions inReeves III invalidated the entire first tier of the sentencing process. Thus, the federal district court concluded that this court's actions in Reeves III deprived Reeves of his rights (1) to be sentenced by a panel that did not commit harmful error and (2) to have that sentence reviewed on appeal.

The U.S. Court of Appeals for the Eighth Circuit in Reeves v. Hopkins, 76 F.3d 1424 (8th Cir.1996), reversed the district court's decision on the basis that the federal district court had exceeded the bounds of its authority by rejecting this court's interpretation of Nebraska state law. Although the Eighth Circuit recognized that this court's assertion of authority to reweigh was "somewhat cryptic" and referred to the district court's analysis as "thoughtful," the Eighth Circuit interpreted this court's action of resentencing in Reeves III to be an assertion of this court's authority under state law to resentence. 76 F.3d at 1429 n. 7. As the existence of such authority was a matter of state law, the Eighth Circuit concluded that the federal courts did not have the power to reverse this court's holding on an issue of state law. Id. at 1427. The Eighth Circuit distinguished Rust on the basis that under Rust, this court could, consistent with federal due process, reweigh aggravating and mitigating circumstances to cure "`minor'" sentencing errors such as those in Clemons. 76 F.3d at 1429. Rust was limited "based on the invalidity of the entire sentencing proceeding." 76 F.3d at 1430.

In a dissent to Reeves v. Hopkins, 76 F.3d 1424, 1434 (8th Cir.1996), Judge Bright of the Eighth Circuit noted that "the Nebraska Supreme Court has never referred to state law as a basis for its reweighing function" and stated his agreement with the federal district court that Nebraska's statutory scheme does not provide authority for this court to perform reweighing and resentencing in cases involving a death sentence. Judge Bright further stated that the crucial underpinning of Rust was that Nebraska follows a two-tier sentencing procedure, giving a defendant the due process right to be sentenced or resentenced by the trial judge or a three-judge district court panel and to receive meaningful appellate review.

On remand, the U.S. District Court again granted Reeves relief based on Reeves' challenge to this court's resentencing methodology in Reeves III, specifically, lack of notice and an opportunity to be heard. Reeves v. Hopkins, 928 F.Supp. 941 (D.Neb.1996). The U.S. District Court's ruling pertaining to the sentencing methodology in Reeves III was again reversed on appeal. The Eighth Circuit further determined, however, that Reeves was entitled to habeas corpus relief on an unrelated basis pertaining to jury instructions and, therefore, granted his petition. Reeves v. Hopkins, 102 F.3d 977 (8th Cir. 1996). The U.S. Supreme Court reviewed the jury instruction issue and reversed the decision of the U.S. Court of Appeals for the Eighth Circuit, thus, in effect, concluding Reeves' first postconviction proceedings in the summer of 1998. Hopkins v. Reeves, 524 U.S. 88, 118 S.Ct. 1895, 141...