State v. Vela, No. S-07-138.

CourtSupreme Court of Nebraska
Writing for the CourtStephan
Citation279 Neb. 94,777 N.W.2d 266
Decision Date08 January 2010
Docket NumberNo. S-07-138.
PartiesSTATE of Nebraska, appellee, v. Erick Fernando VELA, appellant.
777 N.W.2d 266
279 Neb. 94
STATE of Nebraska, appellee,
v.
Erick Fernando VELA, appellant.
No. S-07-138.
Supreme Court of Nebraska.
January 8, 2010.

[777 N.W.2d 274]

James R. Mowbray, Jeffery A. Pickens, and Jerry L. Soucie, of Nebraska Commission on Public Advocacy, Lincoln, and Mark D. Albin, Norfolk, of Albin Law Office, for appellant.

Jon Bruning, Attorney General, and J. Kirk Brown, Lincoln, for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ., and IRWIN, Judge.

STEPHAN, J.

 TABLE OF CONTENTS
                 I. Introduction............................................................ 275
                 II. Aggravation Hearing..................................................... 276
                 1. Background......................................................... 276
                 (a) Bank Murders .................................................. 277
                 (b) Lundell Murder................................................. 278
                 (c) Discovery Requests............................................. 279
                 2. Assignments of Error............................................... 279
                 3. Standard of Review................................................. 280
                 4. Analysis and Resolution............................................ 280
                 (a) Ex Post Facto Claim............................................ 280
                 (b) Notice of Aggravating Circumstance (1)(a)...................... 283
                 (c) Jury Instruction: Malice....................................... 285
                 (d) Jury Instruction: Lesser-Included Offenses..................... 287
                 (e) Jury Instruction: "Other Crime"................................ 287
                 (f) Jury Instruction: Aiding and Abetting.......................... 288
                 (g) Motion for Discovery........................................... 291
                III. Mental Retardation Proceedings.......................................... 292-
                 1. Background......................................................... 292
                 (a) Legal Context.................................................. 292
                 (b) Motions........................................................ 292
                 (c) Mental Retardation Hearing..................................... 293
                 (d) Order.......................................................... 299
                 2. Assignments of Error............................................... 299
                

[279 Neb. 98]

3. Standard of Review................................................. 299 4. Analysis and Resolution............................................ 300 (a) Access to Department of Correctional Services' Records.......... 300 (b) Independent Evaluation.......................................... 301 (c) Presumption of Mental Retardation .............................. 304 (d) Finding That Vela Is Not Person With Mental Retardation......... 304 (i) Intellectual Functioning................................... 304 (ii) Adaptive Behavior ......................................... 305 IV. Sentencing Proceedings................................................... 308 1. Background.......................................................... 308 (a) Vela's Evidence ................................................ 309 (b) State's Evidence................................................ 310 (i) Rebuttal................................................... 310

[777 N.W.2d 275]

 (ii) Victim Impact Testimony ................................... 311
                 (c) Sentencing Order................................................ 311
                 2. Assignments of Error................................................ 313
                 3. Standard of Review.................................................. 313
                 4. Analysis and Resolution............................................. 313
                 (a) Victim Impact Testimony......................................... 313
                 (b) Mitigator (2)(b)................................................ 315
                 (c) Mitigator (2)(e)................................................ 315
                 (d) Proportionality Review by Sentencing Panel...................... 315
                 (e) De Novo Proportionality Review.................................. 316
                 (f) Method of Execution............................................. 317
                V. Conclusion................................................................ 317
                

I. INTRODUCTION

On September 26, 2002, Erick Fernando Vela and two other armed men walked into a bank in Norfolk, Nebraska. In less than a minute, they shot and killed four bank employees and one customer. Vela was apprehended and eventually pled guilty to five counts of first degree murder and five counts of use of a weapon to commit a felony. The district court for Madison County accepted his pleas and found him guilty of all 10 offenses.

Because the State sought the death penalty, an aggravation hearing was conducted before a jury to determine whether one

279 Neb. 99

or more of the alleged aggravating circumstances existed. The jury determined that five statutory aggravating circumstances existed for each of the murders.

Vela moved to have electrocution as a means of execution declared unconstitutional. His motion was overruled.

Vela then filed motions to preclude the imposition of the death penalty under a Nebraska statute which provides that "the death penalty shall not be imposed upon any person with mental retardation."1 The district court granted the State's motion to have Vela examined by its chosen expert with respect to his allegation that he was a person with mental retardation. Vela filed an interlocutory appeal which, on March 23, 2005, in case No. S-04-1324, we summarily dismissed based upon our determination that the order was not final and appealable. Following remand, the district court conducted an evidentiary hearing and determined that Vela had not proved that he was a person with mental retardation as defined by applicable Nebraska statutes and overruled his motion to preclude imposition of the death penalty. We dismissed Vela's interlocutory appeal from that order.2

A sentencing hearing was conducted before a three-judge panel. After receiving evidence, the panel found that the aggravating circumstances outweighed the mitigating circumstances and sentenced Vela to death for each of the five counts of first degree murder.

The cause before us is Vela's automatic direct appeal from the sentencing order.3 Vela has assigned numerous errors by the district court. We shall address them in three separate groups, corresponding to the stage of district court proceedings to which they relate: the aggravation hearing, the mental retardation hearing, and the sentencing proceedings. Additional facts will be set forth where pertinent to our discussion and analysis.

777 N.W.2d 276
279 Neb. 100
II. AGGRAVATION HEARING
1. BACKGROUND

The original information filed against Vela on October 31, 2002, charged five counts of first degree murder and five counts of use of a weapon to commit a felony, but did not include notice of aggravating circumstances. The third amended information filed on June 9, 2003, charged the same offenses and included a notice of aggravating circumstances with respect to each murder count.4 Each notice used the statutory language defining the aggravating circumstance5 but did not include more specific factual allegations. In particular, the notices did not specifically allege that the State intended to establish a "substantial prior history of serious assaultive or terrorizing criminal activity"6 by proving that Vela, prior to the bank murders, committed the first degree murder of Travis Lundell. Vela pled guilty to the charges in the third amended information.

Upon accepting Vela's guilty pleas, the trial court scheduled a hearing before a jury to determine whether any of the aggravating circumstances alleged by the State existed. At the time Vela committed the murders in September 2002, Nebraska's capital sentencing statutes provided that the sentencing judge or panel would determine the existence of any aggravating circumstances which could warrant imposition of the death penalty.7 But in November 2002, the Nebraska Legislature, meeting in special session, enacted L.B. 1,8 which amended Nebraska's capital sentencing statutes. L.B. 1 was enacted in response to the holding of the U.S. Supreme Court in Ring v. Arizona,9 decided on June 24, 2002. In Ring, the Supreme

279 Neb. 101

Court held that, other than the finding of a prior conviction, the determination of aggravating circumstances in a capital case must be made by a jury unless waived by the defendant. The amendments made by L.B. 1 became effective on November 23, 2002,10 approximately 7 months before Vela entered his guilty pleas.

Prior to the scheduled aggravation hearing, Vela filed a motion alleging that the death sentence could not constitutionally apply to him because L.B. 1 was ex post facto legislation. Vela also filed a motion which sought, inter alia, to prohibit the submission of aggravating circumstance (1)(a) to the jury on the ground that the information had not alleged the specific acts upon which the State based the existence of this aggravating circumstance. The district court overruled both motions.

At the commencement of the aggravation hearing, the parties stipulated that Vela shot and killed Lisa Bryant; that Jorge Galindo shot and killed Lola Elwood; and that Jose Sandoval shot and killed Jo Mausbach, Evonne Tuttle, and Samuel Sun. Throughout the aggravation trial, Vela objected to evidence and testimony concerning the actions of Sandoval and Galindo. He argued that such evidence was irrelevant because aggravating circumstances could not be based on aiding

777 N.W.2d 277

and abetting liability. The district court overruled the objections.

(a) Bank Murders

Much of what transpired on the morning of September 26, 2002, was photographed by the bank's surveillance cameras. Recorded video and several time-stamped still-frame photographs from the surveillance system were received into evidence during the aggravation hearing. The photographic evidence showed that at 8:44:56 a.m., Galindo, followed by Vela and then...

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52 practice notes
  • People v. Barrett, No. S180612.
    • United States
    • United States State Supreme Court (California)
    • July 30, 2012
    ...472, 483 (parents resist having their children labeled mentally retarded “because of the stigma associated with it”); State v. Vela (2010) 279 Neb. 94, 129, 777 N.W.2d 266, 293 (“We are aware that a social stigma exists with respect to the phrase ‘mental retardation.’ ”); In re Daniel D. (R......
  • People v. Barrett, No. S180612.
    • United States
    • United States State Supreme Court (California)
    • July 30, 2012
    ...472, 483 (parents resist having their children labeled mentally retarded “because of the stigma associated with it”); State v. Vela (2010) 279 Neb. 94, 129, 777 N.W.2d 266, 293 (“We are aware that a social stigma exists with respect to the phrase ‘mental retardation.’ ”); In re Daniel D. (R......
  • State Of Neb. v. Sandoval, No. S-05-142.
    • United States
    • Supreme Court of Nebraska
    • July 30, 2010
    ...Court is required, upon appeal, to determine the propriety of a death sentence by conducting a proportionality review. State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). This review requires us to compare the aggravating and mitigating circu......
  • State v. Torres, No. S–10–111.
    • United States
    • Supreme Court of Nebraska
    • February 3, 2012
    ...§ 16. 50.Mata, supra note 39. 51.Ellis, supra note 13. 52.Mata, supra note 39, 275 Neb. at 67–68, 745 N.W.2d at 278–79. 53.State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010). 54.Id. 55.Ellis, supra note 13. 56.§§ 29–2519 to 29–2546. 57.Ellis, supra note 13. See, also, Hessler, supra note 41;......
  • Request a trial to view additional results
52 cases
  • People v. Barrett, No. S180612.
    • United States
    • United States State Supreme Court (California)
    • July 30, 2012
    ...472, 483 (parents resist having their children labeled mentally retarded “because of the stigma associated with it”); State v. Vela (2010) 279 Neb. 94, 129, 777 N.W.2d 266, 293 (“We are aware that a social stigma exists with respect to the phrase ‘mental retardation.’ ”); In re Daniel D. (R......
  • People v. Barrett, No. S180612.
    • United States
    • United States State Supreme Court (California)
    • July 30, 2012
    ...472, 483 (parents resist having their children labeled mentally retarded “because of the stigma associated with it”); State v. Vela (2010) 279 Neb. 94, 129, 777 N.W.2d 266, 293 (“We are aware that a social stigma exists with respect to the phrase ‘mental retardation.’ ”); In re Daniel D. (R......
  • State Of Neb. v. Sandoval, No. S-05-142.
    • United States
    • Supreme Court of Nebraska
    • July 30, 2010
    ...Court is required, upon appeal, to determine the propriety of a death sentence by conducting a proportionality review. State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). This review requires us to compare the aggravating and mitigating circu......
  • State v. Torres, No. S–10–111.
    • United States
    • Supreme Court of Nebraska
    • February 3, 2012
    ...§ 16. 50.Mata, supra note 39. 51.Ellis, supra note 13. 52.Mata, supra note 39, 275 Neb. at 67–68, 745 N.W.2d at 278–79. 53.State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010). 54.Id. 55.Ellis, supra note 13. 56.§§ 29–2519 to 29–2546. 57.Ellis, supra note 13. See, also, Hessler, supra note 41;......
  • Request a trial to view additional results

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