State v. Williams

• Decision Date: 08 June 1984
• Docket Number: No. 82-448,82-448
• Parties: STATE of Nebraska, Appellee, v. Robert E. WILLIAMS, Appellant.
• Court: Nebraska Supreme Court

Page 538

352 N.W.2d 538

217 Neb. 539

STATE of Nebraska, Appellee, v. Robert E. WILLIAMS, Appellant.

No. 82-448.

Supreme Court of Nebraska.

June 8, 1984.

Dennis R. Keefe, Lancaster County Public Defender, Richard L. Goos, Lancaster County Sp. Deputy Public Defender, and Michael D. Gooch, and Patrick W. Healey and Douglas L. Kluender, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and J. Kirk Brown, Lincoln, for appellee.

KRIVOSHA, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired.

PER CURIAM.

Robert E. Williams appeals the order of the district court for Lancaster County, Nebraska, denying relief under the post conviction act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1979). A jury found Williams guilty of the first degree murders of Catherine M. Brooks and of Patricia A. McGarry and one count of first degree sexual assault. The crimes occurred on August 10, 1977. Williams was sentenced to death for each of the murders and to an indeterminate sentence for sexual assault. See State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979). We have reviewed the record, conclude the trial court was correct in denying post conviction relief, and affirm the judgment of the district court.

"A motion for post conviction relief can not be used as a substitute for an appeal or to secure a further review of issues already litigated." State v. Ohler, 215 Neb. 401, 405, 338 N.W.2d 776, 778 (1983). Additionally, a defendant in a post conviction 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. See State v. Stranghoener, 212 Neb. 203, 322 N.W.2d 407 (1982). One seeking post conviction relief has the burden of establishing the basis for such relief, and the findings of the district court will not be disturbed on appeal unless they are clearly erroneous. See, State v. Paulson, 211 Neb. 711, 320 N.W.2d 115 (1982); State v. Stranghoener, supra. The reasons for such rules are obvious. As we noted in State v. Weiland, 190 Neb. 111, 113, 206 N.W.2d 336, 338 (1973): "There must be an end to litigation. A defendant will not be permitted to rephrase issues previously raised or raise new issues which could have been previously raised for the purpose of securing another review on appeal."

State v. Hochstein, 216 Neb. 515, 517, 344 N.W.2d 469, 472 (1984).

Although Williams has assigned 33 errors allegedly committed by the trial court, Williams' claims of error fall into three general categories--the sentencing process, selection and instruction of the jury, and assistance of counsel. These errors assigned could have been raised on direct appeal. Therefore, in order to grant post conviction relief to Williams, the court must find that on account of the errors alleged the judgment of conviction would be "void or voidable under the state or federal Constitution." State v. Hochstein, supra at 517, 344 N.W.2d at 472.

Williams claims the statutory sentencing procedure was not followed in his case, because the sentencing court considered nonstatutory aggravating circumstances, namely, Williams' violent activities in Iowa and Minnesota after the murders and sexual assault in Nebraska. The records and files in this case clearly show that the sentencing court did not consider any nonstatutory aggravating circumstances, when the sentencing court expressly stated:

[T]he Court has not considered the evidence of the crimes alleged to have been committed by the defendant subsequent to the crimes charged in the Information, in any of the statutory aggravating circumstances herein, except as the same may relate to the intent, sanity, motive, or absence of mistake or accident in the particular acts charged.

Williams' claim concerning nonstatutory aggravating circumstances has no basis in the record.

Williams contends that the use of a presentence report in the sentencing process violated his constitutional rights, for example, due process, confrontation, self-incrimination, and assistance of counsel.

Neb.Rev.Stat. § 29-2521 (Reissue 1979) authorizes a trial court to receive and consider any evidence which is deemed relevant to sentencing in a capital case. Neb.Rev.Stat. § 29-2261 (Reissue 1979) authorizes a presentence investigation in felony cases for the purpose of sentencing and is not restricted to noncapital cases. Williams' argument concerning use of a presentence report is similar to the argument made in State v. Reeves, 216 Neb. 206, 221, 344 N.W.2d 433, 444 (1984), and is disposed of by the opinion in Reeves :

Defendant asserts that Neb.Rev.Stat. §§ 29-2519 et seq. (Reissue 1979) set out the exclusive sentencing procedure in homicide cases and that because these statutes do not specifically mandate the use of a presentence investigation, the sentencing panel was in error in doing so. If defendant's interpretation was correct, a trial court could make use of a presentence investigation for a conviction of a Class IV felony such as pandering, but may not consider a presentence investigation after a first degree murder conviction. It is readily apparent that this assignment is without merit. As stated in State v. Anderson and Hochstein, supra at 72, 296 N.W.2d at 453: "[T]he traditional rules of evidence may be relaxed following conviction so that the sentencing authority can receive all information pertinent to the imposition of sentence." See, also, State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981); State v. Kramer, 203 Neb. 658, 279 N.W.2d 634 (1979); State v. Holzapfel, 192 Neb. 672, 223 N.W.2d 670 (1974).

Before the sentencing hearing, Williams and his attorney reviewed the presentence report. At the sentencing hearing Williams' attorney made objections concerning various aspects of the presentence report. It is, therefore, obvious that the sentencing court fully complied with the requirement of due process regarding Williams' presentence report. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). While overruling Williams' objections regarding the presentence report, the sentencing court assured Williams that any irrelevant information contained in the presentence investigation would be disregarded: "The Court can screen out those matters which are not relevant to the sentence of the Court." The sentencing court sustained Williams' objection to the use of his 66-page statement concerning Williams' violent activities in Iowa and Minnesota after the murders and sexual assault in Nebraska. Under the circumstances, use of the presentence report at the sentencing hearing did not violate Williams' right to confrontation or any other constitutional right required to be protected in the course of a sentencing hearing. See State v. Reeves, supra. No constitutional rights of Williams were violated by use of the presentence report.

Williams contends that Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1979), "The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence," is unconstitutionally vague. "Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1979), as interpreted by the decisions of this court, is not unconstitutionally vague." (Syllabus of the court.) State v. Reeves, supra. Williams makes much of the fact that the sentencing court found and stated that the murders were "totally bereft of any regard for human life," whereas the phrase "totally and senselessly bereft of any regard for human life" has been previously used by this court in reference to § 29-2523(1)(d). (Emphasis supplied.) (Syllabus of the court.) See, State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977); State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). In Williams' case the sentencing court found beyond a reasonable doubt that each of the murders committed by Williams "was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence." Subsection (1)(d) requires a court to find by evidence beyond a reasonable doubt that the aggravating circumstance exists in the light of the statutory standard. The word "senselessly," utilized by the court in Holtan and Moore, was illustrative language for construing the statutory standard imposed by subsection (1)(d). If Williams' acts were bereft of any regard for human life, such acts were simultaneously and senselessly bereft of any regard for human life. When the court specifically found and expressly stated that the murders were committed under the aggravating circumstance described in § 29-2523(1)(d), the sentencing court did not commit error by omitting the word "senselessly" in characterizing the murders committed by Williams.

Williams' contention that the trial court should have required the State to prove the absence of any mitigating circumstances is disposed by State v. Moore, supra at 480, 316 N.W.2d at 46: "If there were any mitigating factors other than those shown, the defendant is in the best position to know and reveal those factors." Whether mitigating factors existed was a question at the sentencing hearing and a matter for a direct appeal rather than proceedings for post conviction relief. Williams' contention regarding the absence of mitigating circumstances is without merit.

Williams argues that his constitutional rights were violated because a jury did not participate in his sentencing. "Jury sentencing in capital cases is not constitutionally required." (Syllabus of the court.) State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). See, also, State v. Moore, supra. There is no merit in Williams' argument that a jury should have participated in the sentencing process.

Williams asserts that the sentencing court "overlapped" statutory aggravating circumstances subsection (1)(b), "The murder was committed in an apparent effort to conceal the...