State v. Stewart, 40329

• Decision Date: 02 February 1977
• Docket Number: No. 40329,40329
• Citation: 197 Neb. 497,250 N.W.2d 849
• Parties: STATE of Nebraska, Appellee, v. Rodney L. STEWART, Appellant.
• Court: Nebraska Supreme Court

Page 849

250 N.W.2d 849

197 Neb. 497

STATE of Nebraska, Appellee, v. Rodney L. STEWART, Appellant.

No. 40329.

Supreme Court of Nebraska.

Feb. 2, 1977.

Syllabus by the Court

1. The Nebraska death penalty statute, sections 29-2519 to 29-2546, R.R.S.1943, is not in violation of the Constitution of the United States of the Constitution of Nebraska.

2. The confession of a minor to the police is admissible in evidence when, on the totality of circumstances, it is knowingly, intelligently, and voluntarily made. Ordinarily it is not required that the minor be warned that he could be prosecuted as an adult, nor that his parents be notified prior to taking his statement, for his confession to be deemed voluntary.

3. The District Court may properly refuse to waive jurisdiction over a minor to juvenile court where it complies with the provisions of sections 29-1816, R.R.S.1943, and 43-202.01, R.S.Supp., 1974, and where it makes a statement of its findings which provides sufficient specificity to permit meaningful review by this court.

4. A criminal defendant has no absolute right to have his guilty plea accepted, and the trial court may reject such a plea in the exercise of sound discretion.

5. The trial court is afforded a large measure of discretion in deciding whether or not to accept plea bargain arrangements.

6. Before a county attorney can dismiss an information, it is first necessary that approval of the court to do so be obtained.

7. The general rule is that admissibility of photographs of a gruesome nature rests largely in the discretion of the trial court; and although the probative value of such evidence should be weighed against its prejudicial effect before it is admitted, if a photograph illustrates or makes clear some controverted issue in a homicide case, a proper foundation having been laid, it may be received, even if it is gruesome.

8. It is the duty of the court, in a homicide case, to instruct the jury only on those degrees of homicide as find support in the evidence.

9. The procedure to be followed in applying the aggravating and mitigating factors of section 29-2523, R.R.S.1943, is not a mere counting process of those factors, 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. Review by this court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case.

10. The facts on which the finding of an aggravating circumstance referred to in section 29-2523, R.R.S.1943, is based, must be proved beyond a reasonable doubt.

11. Subsection (1)(a) of section 29-2523, R.R.S.1943, should be applied only to criminal activity conducted prior to the events out of which the charge of murder arose.

12. Subsection (1)(b), section 29-2523, R.R.S.1943, is applicable where the purpose of the murder was to conceal a theft, or to conceal the defendant's identity as a thief.

13. Subsection (1)(c), section 29-2523, R.R.S.1943, applies only to the hired gun, the hirers of the gun, and to murder motivated by a desire for pecuniary gain, as in the case of the murder of an insured by the beneficiary, or the murder of a testator by a legatee or devisee.

14. Subsections (1)(b) and (1)(c), section 29-2523, R.R.S.1943, are separate and distinct circumstances, and will be construed so as not to overlap.

15. The term 'heinous, atrocious, or cruel' as set out in subsection (1)(d), section 29-2523, R.R.S.1943, is to be directed at the conscienceless or pitiless crime which is unnecessarily torturous to the victim, and the words 'or manifested exceptional depravity by ordinary standards of morality and intelligence' are applicable only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence. The standard encompasses acts which are totally and senselessly bereft of any regard for human life.

16. Subsection (1)(e), section 29-2523, R.R.S.1943, applies only when the defendant actually committed another murder, and not when the defendant only attempted to commit another murder.

17. Subsection (1)(f), section 29-2523, R.R.S.1943, applies to those situations where the act of the defendant jeopardizes the lives of more than two other persons, such as the use of bombs or explosive devices, the indiscriminate shooting into groups, or other like situations.

18. Subsection (2)(d) of section 29-2523, R.R.S.1943, should be applied as a mitigating circumstance to a 16-year-old defendant who has no criminal record nor significant history of prior criminal activity.

19. Under section 29-2522, R.R.S.1943, a sentence of death should not be imposed where the weight of the mitigating circumstances approaches, or equals, the weight of the aggravating circumstances. It is not required that the mitigating circumstances outweigh the aggravating circumstances.

20. The remedy provided by section 29-2308, R.R.S.1943, is an additional remedy, which may be employed by this court in cases involving capital offenses. The provisions of section 29-2519 to 29-2523, R.R.S.1943, are not exclusive.

Frank B. Morrison, Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, David E. Kendall, Peggy C. Davis, New York City, Anthony G. Amsterdam, Stanford, Cal., for appellant.

Paul L. Douglas, Atty. Gen., Paul W. Snyder, Asst. Gen., Lincoln, for appellee.

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

BRODKEY, Justice.

This is an appeal from the verdict of a jury, finding the defendant guilty of both first-degree murder and of shooting with intent to kill, wound, or maim; and also from the sentences imposed.

On January 30, 1975, the defendant was charged under a Grand Jury indictment which alleged in count I that he 'did purposely and of his own deliberate and premeditated malice kill Thomas Ehlers,' and in count II that he 'did maliciously shoot Daniel Evans with the intent to kill, wound or maim Daniel Evans.' The defendant plead not guilty to both charges on February 6, 1975.

Trial was had commencing July 29, 1975, and the jury returned a verdict of guilty on both counts on July 31, 1975. On August 20, 1975, the trial court, after a hearing pursuant to sections 29-2519 et seq., R.R.S.1943, sentenced the defendant to death on the charge of premeditated murder, and to 15 to 50 years imprisonment on the charge of shooting with intent to kill, wound, or maim. The defendant has now appealed his convictions and sentences to this court. We modify and affirm.

During the summer of 1974, the defendant, a 16-year-old high school student, became acquainted with Thomas Ehlers and Daniel Evans. In July or August 1974, Evans and Ehlers began to supply marijuana to the defendant, who agreed to sell it for them under an arrangement whereby the defendant was to pay the two suppliers a specified price for the marijuana he sold, and retain any excess money he received from the sales.

In one instance, Evans and Ehlers gave the defendant 12 bags of marijuana to sell for $10 per bag. The defendant was to pay them a total sum of $100 on the transaction. The defendant sold seven bags, and gave Ehlers and Evans, $70, but kept the remaining five bags for himself, telling the two suppliers that he had been arrested and that the five bags had been confiscated by the police. When Ehlers and Evans discovered this was not true, they confronted the defendant, but continued to supply him with marijuana. The defendant would return marijuana that he did not sell, but began to 'pinch' some from the unsold bags that he returned. The defendant stated that he began to pinch some of the marijuana because he felt that he was not receiving adequate compensation for his sales.

Ehlers and Evans became angry over the defendant's deception and his failure to pay them the money he owed at that time, about $50; and, confronted him on Thursday, January 16, 1975, approximately 10 days before the shootings involved in this case. Evans testified that he and Ehlers were 'pretty mad,' and that they yelled at the defendant on this occasion. Evans told the defendant that he did not want a fight to arise out of the situation. The defendant's version of this confrontation was somewhat different. He stated that Evans and Ehlers at that time threatened him with wrenches, and that Ehlers threatened to kill or beat him. The defendant told them that he would pay them some money on his indebtedness on the following Tuesday.

According to Evans, the defendant telephoned him on Sunday, January 19, 1975, and told him that he, the defendant, had a buyer for 2 pounds of marijuana, and that the profit from such sale would make up what the defendant owed to Evans and Ehlers. The defendant stated that Evans initiated this proposed transaction, although on cross-examination he testified that he was unsure who made the initial suggestion. In any event, the proposed sale was discussed during the following week, and Evans located a person who could provide 2 pounds of marijuana. A compromise was reached on a rendezvous, which was to take place Saturday evening, January 25, 1975. Evans did not want to meet the ultimate buyer, and the defendant wanted to meet no one but Evans and Ehlers. The two suppliers agreed to meet the defendant and drive him to a place near the buyer's house; the defendant would then get the money from the buyer, and come back to retrieve the marijuana. The proposed sale price for the marijuana was $600.

The defendant had not, in fact, located a buyer, and he stated that he simply intended to 'rip them (Evans and Ehlers) off for whatever I could get.' Defendant testified that prior to the meeting, he decided to take a gun to protect himself because he knew the two suppliers were angry with him, and he decided to take a can of gasoline so...