State v. Victor
| Decision Date | 13 July 1990 |
| Docket Number | No. 88-982,88-982 |
| Citation | 457 N.W.2d 431,235 Neb. 770 |
| Parties | STATE of Nebraska, Appellee, v. Clarence VICTOR, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of the Supreme Court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.
2. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly erroneous.
3. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, the Supreme Court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed witnesses testifying regarding such motion to suppress.
4. Search and Seizure: Miranda Rights: Arrests. One is in custody for Miranda purposes when there is a formal arrest or a restraint on his or her freedom of movement of the degree associated with such an arrest.
5. Constitutional Law: Search and Seizure. Determinations as to whether a person has been seized, in the constitutional sense, are questions of fact.
6. Search and Seizure: Police Officers and Sheriffs: Duress: Proof. The question of whether a person's consent to accompany law enforcement officials was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the totality of the circumstances and is a matter that the State has the burden of proving.
7. Search and Seizure: Miranda Rights: Arrests. Although the circumstances of each case must certainly influence a determination of whether a suspect is "in custody" for the purpose of receiving Miranda protection, the ultimate inquiry is simply whether there is a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.
8. Police Officers and Sheriffs: Miranda Rights: Search and Seizure. Police officers are not required to administer Miranda warnings to everyone whom they question. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him in custody.
9. Sentences: Death Penalty: Supreme Court: Appeal and Error. Neb.Rev.Stat. § 29-2525 (Reissue 1989) requires the Supreme Court to review all cases in which the death penalty has been imposed.
10. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. What are aggravating and mitigating circumstances is, to a large extent, prescribed by statute, although the courts are required to consider any relevant evidence in mitigation.
11. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Evidence: Proof. There is no burden of proof with regard to mitigating circumstances. The State may present evidence that is probative of the nonexistence of a mitigating circumstance, while the defendant may present evidence that 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, the risk of nonproduction and nonpersuasion is on the defendant.
12. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. Neb.Rev.Stat. § 29-2523 (Reissue 1989) exclusively lists the factors that may be relied upon in imposing the death penalty.
13. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Proof. Aggravating circumstances must be proven beyond a reasonable doubt.
14. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Evidence. A defendant may offer any relevant evidence on the issue of mitigation.
15. Homicide: Death Penalty: Aggravating and Mitigating Circumstances: Proof. The "especially heinous, atrocious, [or] cruel" language of Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1989) is limited to cases where torture, sadism, or the imposition of extreme suffering exists, or where the murder was preceded by acts performed for the satisfaction of inflicting either mental or physical pain or that pain existed for any prolonged period of time.
16. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. Neb.Rev.Stat. § 29-2523(1)(a) (Reissue 1989) sets forth three separate factual situations upon which a sentencing panel may conclude that aggravating circumstance (1)(a) exists.
17. Homicide: Death Penalty: Aggravating and Mitigating Circumstances: Proof. In order for aggravating circumstance (1)(d) of Neb.Rev.Stat. § 29-2523 (Reissue 1989) to be present, the method of killing must entail something more than the ordinary circumstances that attend any death-dealing violence.
18. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. The balancing of aggravating circumstances against mitigating circumstances is not merely a matter of number counting but, rather, requires a careful weighing and examination of the various factors.
19. Death Penalty: Supreme Court: Sentences: Appeal and Error. The purpose of Neb.Rev.Stat. § 29-2521.03 (Reissue 1989) is to ensure that no sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances, and review includes only those cases in which the death penalty was imposed.
Thomas M. Kenney, Douglas County Public Defender, and Thomas C. Riley, for appellant.
Robert M. Spire, Atty. Gen., and Sharon M. Lindgren, for appellee.
Clarence Victor appeals the imposition of the death penalty by a three-judge panel following his district court for Douglas County jury convictions for first degree murder and use of a weapon to commit a felony. We affirm.
On appeal, Victor does not challenge the overwhelming evidence that sustains his convictions but, rather, contends: (1) Statements made by the defendant to Omaha police officers should have been suppressed and ruled inadmissible at his trial; (2) Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1989) is unconstitutionally vague and allows for arbitrary application in a capital sentencing proceeding; (3) the sentencing panel improperly received into evidence his 1964 manslaughter confession in support of its finding that § 29-2523(1)(a) was proven beyond a reasonable doubt; (4) there was insufficient evidence to support a finding that § 29-2523(1)(d) was proven beyond a reasonable doubt; (5) the sentencing panel erroneously found that mitigating circumstance § 29-2523(2)(g) was not proven; and (6) the sentencing panel erred in finding the sentence of death was not disproportionate or excessive.
In reviewing a criminal conviction, it is not the province of the Supreme Court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them. State v. Wright, 235 Neb. 564, 456 N.W.2d 288 (1990); State v. Jones, 235 Neb. 1, 453 N.W.2d 447 (1990).
Taking the view most favorable to the State, the facts reflect that at approximately 6 p.m. on December 26, 1987, Omaha police were dispatched to 2125 Ohio Street in Omaha, Nebraska. Upon arrival, the officers entered the residence and observed the deceased, 82-year-old Alice Singleton, lying on the floor in the kitchen area. Among other injuries, the deceased had a laceration to the neck area which was determined to be the cause of her death.
Investigation revealed that Clarence Victor, who had been convicted of two previous homicides, had performed gardening work for the deceased. A neighborhood canvass revealed that a neighbor had seen an older model cream-colored vehicle parked west of the deceased's home at 5 p.m. on the day of the murder. A male, described as between the ages of 30 and 40, wearing sunglasses and a hat, was seated in the car. The same neighbor later told police that Victor's vehicle was similar to the one she had seen, but she could not positively identify it as the same vehicle.
The defendant's auto, which was near his home, was placed under surveillance. Once Victor was in his vehicle, officers were instructed to stop Victor's vehicle and make contact with the driver. After a period of time, a male entered the vehicle and proceeded north on 25th Avenue in Omaha. The vehicle turned into Church's Fried Chicken on 30th Street. A police cruiser pulled in directly behind the vehicle, and soon thereafter, an unmarked police vehicle also arrived. Upon request by an officer, the operator produced his driver's license. The driver, after being identified as Clarence Victor, was informed by police that an investigation was being conducted. The police asked Victor if he would voluntarily accompany them to the police station. Although Victor was not informed of the nature of the investigation, he nevertheless was cooperative and readily agreed to the request of the police officer. He was then transported to the police station in an unmarked police vehicle.
Once at the station, the defendant was questioned about his whereabouts on December 26, 1987. He was not advised of his rights as established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or told that he was under arrest. The defendant informed police that he had not been near the deceased's residence on the day of the murder.
Victor gave a written consent for law enforcement officers to search...
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