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State of Nebraska, appellee, v. 

Patrick W. Schroeder, appellant.

___ N.W.2d ___

Filed April 17, 2020. No. S-18-582.

1. Sentences: Death Penalty: Appeal and Error. In a capital sentencing proceeding, the Nebraska Supreme Court conducts an independent 

review of the record to determine if the evidence is sufficient to support 

imposition of the death penalty.

2. Sentences: Aggravating and Mitigating Circumstances: Appeal and 

Error. When reviewing the sufficiency of the evidence to sustain the 

trier of fact’s finding of an aggravating circumstance, the relevant question for the Nebraska Supreme Court is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact 

could have found the essential elements of the aggravating circumstance 

beyond a reasonable doubt.

3. ____: ____: ____. A sentencing panel’s determination of the existence 

or nonexistence of a mitigating circumstance is subject to de novo 

review by the Nebraska Supreme Court.

4. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. In reviewing a sentence of death, the 

Nebraska Supreme Court conducts a de novo review of the record to 

determine whether the aggravating and mitigating circumstances support 

the imposition of the death penalty.

5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

6. Constitutional Law: Statutes: Appeal and Error. The constitutionality 

of a statute presents a question of law, which an appellate court independently reviews.

7. Sentences: Death Penalty: Homicide: Aggravating and Mitigating 

Circumstances: Appeal and Error. Under Nebraska law, the death 

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penalty is imposed for a conviction of murder in the first degree only in 

those instances when the aggravating circumstances existing in connection with the crime outweigh the mitigating circumstances.

8. Trial: Rebuttal Evidence. Rebuttal evidence is confined to new matters first introduced by the opposing party and limited to that which 

explains, disproves, or counteracts the opposing party’s evidence.

9. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Evidence. In a death penalty case, a sentencing panel has the 

discretion to hear evidence to address potential mitigating circumstances 

regardless of whether the defendant presents evidence on that issue.

10. Sentences: Evidence. A sentencing court has broad discretion as to 

the source and type of evidence and information which may be used 

in determining the kind and extent of the punishment to be imposed, 

and evidence may be presented as to any matter that the court deems 

relevant to the sentence.

11. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Evidence. In a death penalty case, a sentencing panel may 

permit the State to present evidence to contradict potential mitigators 

even though a defendant failed to present affirmative evidence.

12. Sentences: Death Penalty: Homicide. A sentencing order in a death 

penalty case must specify the factors the sentencing panel relied upon in 

reaching its decision and focus on the individual circumstances of each 

homicide and each defendant.

13. Constitutional Law: Sentences: Death Penalty: Aggravating and 

Mitigating Circumstances. The U.S. Constitution does not require the 

sentencing judge or judges to make specific written findings in death 

penalty cases with regard to nonstatutory mitigating factors.

14. Sentences: Aggravating and Mitigating Circumstances: Appeal and 

Error. The Nebraska Supreme Court will not fault a sentencing panel 

for failing to discuss a nonstatutory mitigating circumstance that it was 

not specifically asked to consider.

15. Death Penalty: Aggravating and Mitigating Circumstances. During 

the consideration of statutory mitigating factors in a death penalty case, 

the mere identification of a history of incarceration, without more, 

is insufficient to allege unusual pressures or influences or establish 

extreme mental or emotional disturbance.

16. Sentences: Homicide: Aggravating and Mitigating Circumstances: 

Judgments: Juries: Presentence Reports. When an offender has been 

convicted of first degree murder and waives the right to a jury determination of an alleged aggravating circumstance, the court must order a 

presentence investigation of the offender and the panel must consider a 

written report of such investigation in its sentencing determination.
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17. Presentence Reports. A presentence investigation and report shall 

include, when available, any submitted victim statements and an analysis of the circumstances attending the commission of the crime and the 

offender’s history of delinquency or criminality, physical and mental 

condition, family situation and background, economic status, education, 

occupation, and personal habits.

18. Presentence Reports: Probation and Parole. A presentence investigation and report may include any matters the probation officer deems 

relevant or the court directs to be included.

19. Constitutional Law: Criminal Law: Sentences: Right to Counsel. An 

accused has a state and federal constitutional right to be represented by 

an attorney in all critical stages of a criminal prosecution which can lead 

to a sentence of confinement.

20. Right to Counsel: Waiver. A defendant may waive the right to counsel 

so long as the waiver is made knowingly, voluntarily, and intelligently.

21. Constitutional Law: Right to Counsel. The same constitutional provisions that provide a defendant the right to counsel also guarantee the 

right of the accused to represent himself or herself.

22. Attorney and Client. The right to self-representation plainly encompasses certain specific rights of the defendant to have his voice heard, 

including that the pro se defendant must be allowed to control the organization and content of his own defense.

23. Sentences: Death Penalty: Attorney and Client: Aggravating and 

Mitigating Circumstances: Evidence: Waiver. Control of the organization and content of a defense may include a waiver of the right to 

present mitigating evidence during sentencing in a death penalty case.

24. Criminal Law: Sentences: Death Penalty: Appeal and Error. Because 

a death sentence is different from any other criminal penalty and no system based on human judgment is infallible, the Nebraska Supreme Court 

has taken, and should continue to take, the extra step to ensure fairness 

and accuracy with the imposition of the death penalty.

25. Criminal Law: Statutes. Penal statutes are to be strictly construed in 

favor of the defendant.

26. Sentences: Evidence: Presentence Reports. Even if the State presents 

evidence in favor of a specific sentence and the defendant declines to 

present contrary evidence, a court receives and must consider independent information from a presentence investigation report.

27. Sentences: Death Penalty: Evidence: Presentence Reports. In a death 

penalty case, a sentencing panel is required to review a presentence 

investigation report and determine whether it contradicts the State’s evidence of aggravating factors and whether any mitigating circumstances 

exist, including specifically delineated statutory mitigators.
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28. Death Penalty: Aggravating and Mitigating Circumstances: Proof.

While the State must prove aggravating circumstances beyond a reasonable doubt in a death penalty case, there is no burden of proof with 

regard to mitigating circumstances.

29. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Judgments. Once a sentencing panel in a death penalty case 

makes its determinations about the existence of aggravating and mitigating circumstances, the panel is then required to undertake a proportionality review.

30. Criminal Law: Sentences: Death Penalty: Words and Phrases. A proportionality review in a death penalty case looks at whether the sentence 

of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Proportionality 

review is not constitutionally mandated.

31. Sentences: Death Penalty: Statutes: Appeal and Error. The proportionality review in a death penalty case exists in Nebraska by virtue of 

statutes which direct the Nebraska Supreme Court to conduct a proportionality review in each appeal in which a death sentence is imposed.

32. Sentences: Death Penalty. A court’s proportionality review spans all 

previous cases in which a sentence of death is imposed and is not dependent on which cases are put forward by the parties.

33. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Judgments: Juries. Even when a jury determines the existence 

of an aggravating circumstance, a sentencing panel is required to put in 

writing its consideration of whether the determined aggravating circumstance justifies the imposition of a sentence of death, whether mitigating 

circumstances exist, and whether a sentence of death would be excessive 

or disproportionate to penalties imposed in similar cases.

34. ____: ____: ____: ____: ____. A sentencing panel’s order imposing 

a sentence of death where a jury has determined the existence of an 

aggravating circumstance must specifically refer to the aggravating and 

mitigating circumstances weighed in the determination of the panel.

35. Sentences: Death Penalty: Statutes. Nebraska’s capital sentencing 

scheme provides additional statutory steps and considerations to ensure 

fairness and accuracy, and these safeguards exist regardless of a defendant’s strategy at the penalty phase.

36. Sentences: Death Penalty. Due to Nebraska’s statutory capital sentencing scheme, a defendant cannot “choose” the death penalty.

37. Courts: Sentences: Death Penalty. A sentencing decision in a death 

penalty case rests with the court alone.

38. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Evidence: Presentence Reports. In order to sentence a 
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defendant to death, the statutory scheme requires that a sentencing 

panel consider not only evidence and argument presented by the parties 

but also an independently compiled presentence investigation report to 

determine whether the alleged aggravating circumstance exists, determine whether any mitigating factors are present which would weigh 

against the imposition of the death penalty, and conduct a proportionality review weighing the aggravating and mitigating factors and comparing the facts to previous cases where the death penalty was imposed.

39. Trial: Parties. A defendant is entitled to present a defense and is guaranteed the right to choose the objectives for that defense.

40. Attorney and Client. A self-represented defendant must be allowed to 

control the organization and content of his own defense.

41. Constitutional Law: Right to Counsel: Sentences: Aggravating 

and Mitigating Circumstances: Evidence: Waiver. When a defendant waives counsel and the presentation of mitigating evidence, the 

appointment of an advocate to present evidence and argue against the 

imposition of a sentence overrides that defendant’s constitutional right 

to control the organization and content of his or her own defense during sentencing.

42. Right to Counsel: Waiver. A criminal defendant has the right to waive 

counsel and present his or her own defense.

43. Sentences: Death Penalty: Right to Counsel: Evidence: Waiver. In a 

death penalty case, a defendant’s right to waive counsel and present his 

or her own defense includes the right of the defendant to elect not to 

present additional evidence or argument during the penalty proceedings.

44. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. In reviewing a sentence of death, the 

Nebraska Supreme Court conducts a de novo review of the record to 

determine whether the aggravating and mitigating circumstances support 

the imposition of the death penalty.

45. ____: ____: ____: ____. In reviewing a sentence of death, the Nebraska 

Supreme Court considers whether the aggravating circumstances justify 

imposition of a sentence of death and whether any mitigating circumstances found to exist approach or exceed the weight given to the aggravating circumstances.

46. ____: ____: ____: ____. The Nebraska Supreme Court is required, upon 

appeal, to determine the propriety of a death sentence by conducting a 

proportionality review, comparing the aggravating and mitigating circumstances with those present in other cases in which a court imposed 

the death penalty.

47. Sentences: Death Penalty. The purpose of a proportionality review in a 

death penalty case is to ensure that the sentences imposed in a case are 
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no greater than those imposed in other cases with the same or similar 

circumstances.

48. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. The Nebraska Supreme Court’s proportionality review looks only to other cases in which the death penalty 

has been imposed and requires the court to compare the aggravating 

and mitigating circumstances of the case on appeal with those present in 

those other cases.

49. Death Penalty. A proportionality review in a death penalty case does 

not require that a court “color match” cases precisely.

50. Sentences: Death Penalty. The question when conducting a proportionality review in a death penalty case is simply whether the cases 

being compared are sufficiently similar, considering both the crime and 

the defendant, to provide the court with a useful frame of reference for 

evaluating the sentence in the instant case.

51. Sentences: Death Penalty: Aggravating and Mitigating Circumstances. One aggravating circumstance may be sufficient under 

Nebraska’s statutory system for the imposition of the death penalty.

52. ____: ____: ____. In a proportionality review, the evaluation of whether 

the death penalty should be imposed in a specific case is not a mere 

counting process of “X” number of aggravating circumstances and 

“Y” number of mitigating circumstances and, instead, asks whether the 

reviewed cases are sufficiently similar to provide a useful reference for 

that evaluation.

Appeal from the District Court for Johnson County: Vicky 

L. Johnson, Judge. Affirmed.

Sarah P. Newell, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, 

Solicitor General, for appellee.

Christopher L. Eickholt, of Eickholt Law, L.L.C., Cassandra 

Stubbs, of American Civil Liberties Union Foundation, and 

Amy A. Miller, of ACLU of Nebraska Foundation, for amicus 

curiae ACLU and ACLU of Nebraska.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ., and Moore, Chief Judge.
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Funke, J.

Patrick W. Schroeder appeals his sentence of death for 

first degree murder of Terry Berry, Jr. This is a mandatory 

direct appeal pursuant to Neb. Rev. Stat. § 29-2525 (Cum. 

Supp. 2018) and article I, § 23, of the Nebraska Constitution. 

Schroeder waived counsel, pled guilty without a plea agreement, waived the right to a jury on the issue of aggravating 

factors, declined to present evidence of aggravating or mitigating factors, and declined to cooperate for the preparation of the 

presentence investigation report.

On appeal, Schroeder was appointed counsel and now contends that the sentencing panel erred in allowing the State to 

introduce evidence to refute unpresented mitigating evidence, 

failing to consider and weigh mitigating evidence from the 

presentence investigation report, failing to request documentation from the Department of Correctional Services (DCS) of 

Schroeder’s time in custody for mitigation purposes, sentencing Schroeder to death with insufficient safeguards to prevent 

arbitrary results, and finding Schroeder should be sentenced to 

death after balancing the aggravating evidence and mitigating 

evidence. For the reasons set forth herein, we affirm.

BACKGROUND

Factual Background

At the time of the events leading to Schroeder’s instant 

conviction, Schroeder was incarcerated at Tecumseh State 

Correctional Institution (TSCI). This incarceration was pursuant to a 2007 conviction for the first degree murder of 

Kenneth Albers in which Schroeder was sentenced to life 

imprisonment.

In March 2017, while housed in a cell intended for one 

occupant, Schroeder was asked if he would consider a roommate due to overcrowding. Schroeder agreed but wanted a 

roommate with whom he was compatible. Prison officials 

assigned Berry to Schroeder’s cell. Schroeder did not consider 

Berry to be compatible with him and told prison officials that 

he did not want Berry as a cellmate. Schroeder did not know 
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Berry personally before the assignment but knew of Berry as 

“‘a loudmouth, a punk.’” Berry was 22 years old and convicted 

of second degree forgery and a confined person violation. 

Berry was due for release approximately 2 weeks after his 

assignment to Schroeder’s cell.

Schroeder had described Berry as a constant talker with 

extremely poor hygiene. During their shared confinement, 

Schroeder would urge Berry to be quieter and clean up after 

himself. Schroeder alleged that he had told prison staff that 

placing Berry with him would be an unworkable, bad arrangement. Schroeder described that prison staff who came by his 

cell would acknowledge the poor fit and even joke that it was 

surprising Schroeder had not killed Berry yet. By April 13, 

2017, Schroeder decided to himself that “‘[s]omething was 

gonna happen’” if Berry was not moved.

On April 15, 2017, Berry was watching “UFC” on television in the cell and, as Schroeder explained, Berry “‘would 

not shut up.’” Schroeder instructed Berry to move his chair 

to face the television with his back to Schroeder. Schroeder 

proceeded to put Berry in a chokehold and locked his hands. 

He continued to choke Berry for about 5 minutes until his 

arms got tired and then took a nearby towel, wrapped it around 

Berry’s neck, and continued to choke him for about 5 more 

minutes. At that point, Schroeder let up on the towel, believing Berry was dead. Schroeder claimed he then tried to push 

the call button in his cell to alert staff to Berry’s condition. 

Around 30 minutes later, Schroeder alerted a passing guard 

that Berry was on the floor by asking, “‘How do you deal 

with a dead body in a cell?’” The guard believed Schroeder 

was joking until Schroeder picked up and dropped Berry’s 

leg. Schroeder has stated that he summoned the guard not for 

Berry’s benefit, but because he wanted Berry’s body removed 

from the cell.

Berry was transported to a medical facility. On April 19, 

2017, Berry died, having been declared brain dead. A search 

of the cell revealed a torn “kite,” a form inmates use to communicate with prison staff, dated April 13, 2017, and located in 
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the trash. The discarded kite stated that prison staff had to get 

Berry out of the cell before he got hurt.

Procedural Background

Pursuant to these events, Schroeder was charged in April 

2017 with first degree murder and use of a weapon to commit 

a felony. Within an information filed in June, the State submitted a notice of aggravation alleging Schroeder had been convicted of another murder, been convicted of a crime involving 

the use or threat of violence to the person, or had a substantial 

prior history of serious assaultive or terrorizing criminal activity. 1 Schroeder was appointed counsel and entered a plea of 

not guilty.

A hearing was held following Schroeder’s subsequent 

request to dismiss counsel and represent himself. The court 

granted Schroeder’s motion and discharged his counsel but 

also appointed that same counsel to act in a standby role. 

Representing himself, Schroeder withdrew a pending motion 

to quash and requested leave to withdraw his prior plea of not 

guilty. The court granted Schroeder leave to withdraw his prior 

plea and rearraigned him. Thereafter, Schroeder pled guilty to 

both counts and the court found him guilty of those charges 

beyond a reasonable doubt.

Presentence Investigation Report

The court ordered a presentence investigation report. 

Schroeder declined to answer questions or participate in its 

preparation. However, the current report did attach the 2007 

presentence investigation report from Schroeder’s earlier convictions, which supplies more background information.

According to the report, Schroeder was born in June 1977. 

Schroeder’s biological father abandoned his family when 

Schroeder was an infant. Schroeder’s mother and stepfather 

raised him in his early years. Schroeder described his stepfather 

as an alcoholic. Schroeder’s mother and stepfather separated 

1 See Neb. Rev. Stat. § 29-2523(1)(a) (Cum. Supp. 2018).
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when Schroeder was 9 years old, and Schroeder moved with 

his mother to Kearney, Nebraska. Schroeder has not had contact with his stepfather since he was 12 years old. Schroeder 

has two older brothers but, at the time of the 2007 report, was 

not close to either of them. While Schroeder’s biological father 

did take him in for a brief period of time when he was 12 years 

old, Schroeder was removed and sent to a juvenile facility 

because his father caught him smoking marijuana. Schroeder 

denied being abused or neglected and described his childhood 

as “‘typical.’” Schroeder has a history of “placement in foster 

care and group home situations including a number of runaways.” At one point as a teenager, Schroeder was placed with 

his grandparents for a period of time.

Schroeder was married in 1998 and has one child from that 

marriage, but the couple has since divorced. At the time of the 

2007 report, Schroeder described that the child was adopted 

by his ex-wife’s present husband and that Schroeder has no 

contact with the child. Schroeder remarried in 2003, and his 

wife had three children from prior relationships. However, 

Schroeder said in the 2007 report that while the couple was 

then together, he expected the situation to change under the 

circumstances.

The presentence investigation report provides that Schroeder 

has an eighth grade education. Before he was incarcerated in 

2007, he had been employed in various farmwork and construction jobs.

Schroeder reported that he first used alcohol when he was 13 

years old and that he experimented with marijuana and cocaine 

when he was 15 years old. Schroeder also admitted he had 

used methamphetamine on a daily basis for approximately 3 to 

4 months, with the last use in 2003. While Schroeder denied 

receiving treatment, previous prison records indicated he was 

placed in substance abuse programming in 1991. Schroeder 

asserted that from April 2005 until his 2006 arrest, he was 

“‘hooked on opiates’” and was taking between 500 and 800 

pills per month, some of which were prescribed and some of 

which were not.
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The report explained that in 1985, Schroeder was first 

charged with criminal mischief in juvenile court when he was 

12 years old. Between 1987 and 1992, Schroeder was also 

charged in juvenile court with aiding and abetting, escape, 

theft, minor in possession of alcohol, and theft by exercising control. He was ordered to serve probation as well as 

being placed in the Youth Rehabilitation and Treatment Center 

in Kearney.

Since reaching the age of majority, in addition to his 2007 

convictions, Schroeder has been convicted of bank robbery, 

forgery, escape, theft, assault, driving under suspension, contributing to the delinquency of a child, driving under the 

influence, and issuing bad checks. He has been sentenced to 

multiple terms of incarceration and terms of supervision. He 

has had two of his terms of probation revoked and completed 

others unsatisfactorily.

Sentencing Proceedings

A scheduling hearing was held in August 2017. Schroeder 

waived his right to a jury for a determination of the aggravation allegation. The court accepted this waiver after making 

inquiry and finding, beyond a reasonable doubt, that Schroeder 

was competent and that his decision was made freely, voluntarily, knowingly, and intelligently. Thereafter, a three-judge 

panel was convened for a sentencing hearing on Schroeder’s 

first degree murder conviction.

On the aggravation allegation, the State presented evidence 

of Schroeder’s 2007 conviction for Albers’ murder. A sergeant with the Nebraska State Patrol testified that he was 

the lead investigator for that case. His testimony and a video 

of his interview with Schroeder described that Albers was a 

75-year-old farmer who had previously employed Schroeder. 

Believing Albers had several thousand dollars in cash at his 

residence, Schroeder had driven to Albers’ house, rung the 

doorbell, entered the home, and awakened Albers. Schroeder 

demanded money, threatened Albers, and hit him in the head 

with a nightstick. Albers recognized Schroeder during this 
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exchange and called him by name. Schroeder forced Albers 

to open a lockbox in which Schroeder believed the cash was 

kept, after which Schroeder took Albers outside to an adjacent 

shop. At the shop, Albers turned toward Schroeder, attempting 

to defend himself. Schroeder struck Albers with the nightstick 

four or five times. With Albers on the floor, Schroeder dragged 

him out of the shop, tied him up with battery cables, and 

placed him in the back of Albers’ pickup. Schroeder then drove 

Albers, who was still alive, to an abandoned well on the property and dumped him into it. Schroeder explained to the sergeant that he had made the decision to kill Albers a few days 

before the robbery. The doctor who performed the autopsy on 

Albers testified that the cause of Albers’ death was blunt force 

trauma to his head.

Schroeder declined to cross-examine the State’s witnesses, 

present rebuttal evidence, or argue against the State’s claim on 

the aggravation allegation.

As to mitigating factors, Schroeder again declined to present any evidence or argument. However, the State requested, 

and the court granted, permission to present evidence to negate 

possible statutory mitigating circumstances. Here, the State 

presented evidence related to Berry’s murder. Investigator 

Stacie Lundgren of the Nebraska State Patrol testified to her 

interview with Schroeder where he described how and why 

he killed Berry. This interview was also described in the presentence investigation report. The doctor who performed the 

autopsy of Berry opined that the cause of death was compressional asphyxia, a form of strangulation where the structures 

of the neck are compressed. Cpl. Steve Wilder explained that 

he was the correctional officer whom Schroeder flagged down 

to remove Berry after Schroeder had choked him. Cpl. Joseph 

Eppens testified he had moved Schroeder from his cell following the incident. Eppens explained that Schroeder told him he 

had previously informed correctional staff he did not want a 

cellmate and that he joked, “[T]his is what happens when we 

watch UFC.” Finally, a TSCI employee testified that he had 

notarized a writing in which Schroeder stated:
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My name is Patrick Schroeder. I’m 40 years old and 

I killed Terry Berry on April 15[,] 2017[.] I killed Berry 

because I wanted to, I knew I was going to kill him the 

moment staff put him in my cell on April 10[,] 2017. . . .

I’m writing this statement to inform the court that if 

given another life term I will kill again and we will be 

right back in court doing this all over again.

The court allowed the parties to make arguments. Schroeder 

declined. On the aggravation allegation, the State noted that 

it provided a certified copy of Schroeder’s previous murder 

conviction and testimony concerning the events leading to that 

conviction. As to mitigating circumstances, the State stated, 

in part:

[T]he State has offered evidence considering the statutory 

mitigating circumstances, and the purpose of the evidence 

was to affirmatively show that there were no statutory 

mitigators that exist in this case.

The circumstances to be considered for mitigation 

include whether or not the defendant acted under unusual 

pressure or influence. I want to emphasize the word 

“unusual.” His justification[s] for his actions are more of 

a nuisance than they are unusual pressure.

It was displeasure or disagreement with a roommate 

and how the roommate either talked too much or his 

hygiene wasn’t appropriate for . . . Schroeder’s standards, 

and I don’t think that constitutes unusual pressure or 

influence.

He’s not under the . . . dominion of another. . . . 

Schroeder acted by himself, and I would say he probably 

was the boss in the cell.

There is no undue influence of extreme mental or emotional disturbance. . . . Schroeder was clear thinking, and 

by the evidence that’s been presented, his thought process 

started almost immediately upon . . . Berry becoming 

his cellmate. And in his written statement, that is really 

clear. And even in his interview with the investigator, he 
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started thinking about this several days before it actually happened.

So he wasn’t under any influence of extreme mental or 

emotional disturbance. This was a thought process deliberate and pretty cold blooded.

. . . .

The evidence shows that he was the sole person committing this crime. There is no accomplice. And his participation is the . . . death-causing participation.

The State would argue that . . . Berry’s habits as 

described by [Schroeder do] not make him a participant 

[in the incident].

. . . .

[Schroeder] was a prisoner at the institution. No evidence of impairment. The only evidence is that he’s clearheaded, he’s thinking, and he planned.

Order of Sentence

In the panel’s order of sentence, the panel found the State 

proved the aggravation allegation beyond a reasonable doubt, 

citing Schroeder’s previous conviction and the testimony 

describing the events leading to that conviction.

The panel also addressed possible statutory mitigating circumstances, noting, “The State was allowed to present evidence that is probative of the non-existence of statutory or nonstatutory mitigating circumstances, and did so[, and Schroeder] 

was allowed to present evidence that is probative of the existence of a statutory or non-statutory mitigating circumstance[, 

but] chose not to . . . .” After analyzing each of the mitigating 

grounds defined by § 29-2523(2) and giving Schroeder the 

benefit of all inferences, the panel did not find there were any 

statutory mitigating circumstances.

The panel addressed various nonstatutory mitigating factors. 

The panel found two of these factors existed and weighed in 

Schroeder’s favor, including that Schroeder’s guilty plea spared 

Berry’s family the trauma of a trial and the State the expense of 
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a trial and that Schroeder’s childhood and family were dysfunctional. While finding three other factors did not exist, the panel 

noted the following: Schroeder is not well educated, but there 

is no evidence of a borderline intellect or diminished cognitive ability and he clearly knows right from wrong; Schroeder 

takes medication for depression, but there is nothing to suggest 

that this depression contributed to his actions and there is no 

evidence that his psychiatric or psychological history rises to 

the level of a mitigating circumstance; and the record does not 

suggest Schroeder has generally been a problem to officials 

during his confinement, but this prior conduct does not rise to 

the level of a mitigating factor. The panel acknowledged that 

Schroeder apparently “expressly welcomes a death sentence” 

but explained this was not considered and that “[i]t is the law, 

and not [Schroeder’s] wishes, that compels this Panel’s ultimate conclusion.”

The panel concluded that the two nonstatutory mitigating 

circumstances were given little weight because these two factors did not approach or exceed the weight given to the aggravating circumstance. The panel then conducted a proportionality review and found that a sentence of death is not excessive 

or disproportionate to the penalty imposed in similar cases. 

Based upon all of the above, the panel sentenced Schroeder 

to death.

ASSIGNMENTS OF ERROR

Schroeder assigns, restated, that the sentencing court erred 

in (1) allowing the State to introduce evidence to rebut unpresented mitigating evidence, (2) failing to consider and properly weigh mitigating evidence from the presentence investigation report, (3) failing to request DCS documentation of 

Schroeder’s time in custody for mitigation purposes, (4) sentencing Schroeder to death with insufficient safeguards to 

prevent arbitrary results, and (5) sentencing Schroeder to death 

after balancing the aggravating evidence and mitigating evidence and conducting the proportionality review.
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STANDARD OF REVIEW

[1] In a capital sentencing proceeding, this court conducts an 

independent review of the record to determine if the evidence 

is sufficient to support imposition of the death penalty. 2

[2-4] When reviewing the sufficiency of the evidence to 

sustain the trier of fact’s finding of an aggravating circumstance, the relevant question for this court is whether, after 

viewing the evidence in the light most favorable to the State, 

any rational trier of fact could have found the essential elements of the aggravating circumstance beyond a reasonable 

doubt. 3 The sentencing panel’s determination of the existence 

or nonexistence of a mitigating circumstance is subject to de 

novo review by this court. 4 In reviewing a sentence of death, 

the Nebraska Supreme Court conducts a de novo review of the 

record to determine whether the aggravating and mitigating 

circumstances support the imposition of the death penalty. 5

[5] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules; judicial discretion is involved 

only when the rules make discretion a factor in determining 

admissibility. 6

[6] The constitutionality of a statute presents a question of 

law, which an appellate court independently reviews. 7

ANALYSIS

Rebuttal of Mitigating 

Circumstances

[7] Under Nebraska law, the death penalty is imposed 

for a conviction of murder in the first degree only in those 

2 State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).

3 State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).

4 Jenkins, supra note 2.

5 Id.

6 Torres, supra note 3.

7 Jenkins, supra note 2.
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instances when the aggravating circumstances existing in 

connection with the crime outweigh the mitigating circumstances. 8 When, as here, a defendant waives the right to a 

jury determination of alleged aggravating circumstances, the 

process for a sentencing panel to consider, find, and weigh the 

applicable aggravating and mitigating circumstances is set out 

by Neb. Rev. Stat. § 29-2521(2) (Cum. Supp. 2018). Section 

29-2521(2) states:

In the sentencing determination proceeding before a panel 

of judges when the right to a jury determination of the 

alleged aggravating circumstances has been waived, the 

panel shall . . . hold a hearing. At such hearing, evidence 

may be presented as to any matter that the presiding judge 

deems relevant to sentence and shall include matters 

relating to the aggravating circumstances alleged in the 

information, to any of the mitigating circumstances set 

forth in section 29-2523, and to sentence excessiveness 

or disproportionality. The Nebraska Evidence Rules shall 

apply to evidence relating to aggravating circumstances. 

Each aggravating circumstance shall be proved beyond a 

reasonable doubt. Any evidence at the sentencing determination proceeding which the presiding judge deems to 

have probative value may be received. The state and the 

defendant or his or her counsel shall be permitted to present argument for or against sentence of death.

The mitigating circumstances required to be considered 

under § 29-2521 and set forth in § 29-2523(2) include:

(a) The offender has no significant history of prior 

criminal activity;

(b) The offender acted under unusual pressures or 

influences or under the domination of another person;

(c) The crime was committed while the offender was 

under the influence of extreme mental or emotional 

disturbance;

(d) The age of the defendant at the time of the crime;

8 Neb. Rev. Stat. § 29-2519 (Cum. Supp. 2018).
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(e) The offender was an accomplice in the crime committed by another person and his or her participation was 

relatively minor;

(f) The victim was a participant in the defendant’s conduct or consented to the act; or

(g) At the time of the crime, the capacity of the defendant to appreciate the wrongfulness of his or her conduct 

or to conform his or her conduct to the requirements of 

law was impaired as a result of mental illness, mental 

defect, or intoxication.

[8] Schroeder initially claims that the sentencing panel erred 

by allowing the State to present evidence to rebut the statutory 

mitigating circumstances even though Schroeder did not offer 

any evidence on mitigation. In making this claim, Schroeder 

cites the proposition that rebuttal evidence is confined to new 

matters first introduced by the opposing party and limited to 

that which explains, disproves, or counteracts the opposing 

party’s evidence. 9

[9-11] Contrary to Schroeder’s assertions under this assignment, a sentencing panel has the discretion to hear evidence 

to address potential mitigating circumstances regardless of 

whether the defendant presents evidence on that issue. As 

quoted above, § 29-2521(2) allows a sentencing panel to 

receive “[a]ny evidence” at the sentencing proceeding which 

the presiding judge deems to have probative value relevant 

to the sentence including to any of the statutory mitigating 

circumstances. 10 A sentencing court has broad discretion as to 

the source and type of evidence and information which may 

be used in determining the kind and extent of the punishment 

to be imposed, and evidence may be presented as to any matter that the court deems relevant to the sentence. 11 Although 

§ 29-2521(2) dictates that the Nebraska Rules of Evidence 

9 See State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). See, also, 

State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

10 See Jenkins, supra note 2.

11 Id.
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apply when determining the aggravating circumstances alleged 

by the information, it contains no such requirement for consideration of mitigating circumstances. Because a sentencing 

panel is required to consider and weigh any mitigating circumstances in imposing a sentence of death, the introduction 

of evidence of the existence or nonexistence of these potential 

mitigators has probative value to the sentence. Thus, the panel 

could permit the State to present evidence to contradict potential mitigators even though Schroder failed to present affirmative evidence.

Schroeder argues the State’s evidence purported to rebut 

the statutory mitigating circumstances was actually offered 

to support uncharged aggravating circumstances. Specifically, 

Schroeder alleges the State’s evidence was offered to show the 

nonstatutory aggravating circumstance of future dangerousness and “both prongs” 12 of § 29-2523(1)(d), which provides 

a statutory aggravator when a murder was especially heinous, 

atrocious, or cruel or manifested exceptional depravity by ordinary standards of morality and intelligence.

During the portion of the hearing devoted to mitigating 

circumstances, the State’s evidence related to Berry’s murder. 

Lundgren testified about her interview with Schroeder where 

he described how and why he killed Berry. This same interview 

was also described in the presentence investigation report. The 

doctor who performed the autopsy on Berry explained that 

Berry was killed by strangulation. Wilder explained the events 

surrounding his discovery of Berry’s murder and Schroeder’s 

reaction. Eppens explained that Schroeder told him he had previously informed correctional staff he did not want a cellmate 

and joked, while Eppens was moving him following the discovery of Berry’s unconscious body, “[T]his is what happens 

when we watch UFC.” Additionally, through the testimony of 

a TSCI employee, the State introduced a notarized writing in 

which Schroeder confessed, explained his reasons for killing 

Berry, and stated he would kill again if given another life term.

12 Brief for appellant at 28.
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This evidence surrounding Berry’s murder was relevant 

to the statutory mitigating circumstances the panel was 

required to consider. The mitigating circumstances listed under 

§ 29-2523(2) involve, in part, circumstances surrounding the 

underlying crime. These circumstances include pressure or 

influences which may have weighed on the defendant, potential influence on the defendant of extreme mental or emotional 

disturbance at the time of the offense, potential victim participation or consent to the act, the defendant’s capacity to appreciate the wrongfulness of the act at the time of the offense, 

and any mental illness, defect, or intoxication which may have 

contributed to the offense. 13 The State’s evidence informed 

the panel’s analysis and was relevant to consideration of these 

mitigators; and, as explained above, the panel had discretion to 

hear this evidence.

Schroeder fails to allege that the introduction of this evidence influenced the panel’s finding of the existence of the 

charged aggravator—namely that Schroeder had been convicted 

of another murder, been convicted of a crime involving the use 

or threat of violence to the person, or had a substantial prior 

history of serious assaultive or terrorizing criminal activity. 14 It 

is undisputed that Schroeder had previously been convicted of 

the murder of Albers and was incarcerated for that crime at the 

time of Berry’s killing. Schroeder does not challenge the presentation of evidence related to this aggravating circumstance 

for failing to comply with the Nebraska Evidence Rules. 15

The panel had discretion to hear any evidence relevant to 

sentencing, the panel was required to consider mitigating circumstances even though Schroeder failed to allege or present 

evidence in support of them, and the evidence presented by the 

State was relevant to the panel’s review of these mitigators. 

As such, the panel did not err in allowing the State to present 

evidence on the existence of mitigating circumstances.

13 § 29-2523(2).

14 § 29-2523(1)(a).

15 See § 29-2521(2).
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Weighing of Mitigating 

Circumstances

Schroeder next assigns the panel failed to properly consider mitigating information contained within the presentence 

investigation report and available from the State’s evidence. 

Schroeder claims proper consideration of this evidence would 

have led the panel to find additional statutory and nonstatutory 

mitigating circumstances.

[12] As explained, § 29-2521 requires a sentencing panel to 

consider mitigating circumstances. Neb. Rev. Stat. § 29-2522 

(Cum. Supp. 2018) describes the weighing of the aggravating and mitigating circumstances in imposing a sentence of 

death and requires that the determination be in writing and 

refer to the aggravating and mitigating circumstances weighed. 

Accordingly, the sentencing order must specify the factors it 

relied upon in reaching its decision and focus on the individual 

circumstances of each homicide and each defendant. 16

We first address Schroeder’s claims that the panel should 

have applied additional nonstatutory mitigating evidence, 

including (1) that the State had ulterior motives for pursuing the death penalty to avoid and detract from potential civil 

liability for failing to protect Berry, (2) that Schroeder was 

institutionalized from consistent incarceration, and (3) that 

Schroeder had used money elicited from his murder of Albers 

to provide clothes and food for his family.

[13,14] The U.S. Constitution does not require the sentencing judge or judges to make specific written findings 

with regard to nonstatutory mitigating factors. 17 In State v. 

Jenkins,

 18 we addressed an assignment of a sentencing panel 

failing to address nonstatutory mitigators and explained that 

16 State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).

17 State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated 

on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). 

Accord State v. Reeves, 234 Neb. 711, 453 N.W.2d 359, cert. granted and 

judgment vacated 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990).

18 Jenkins, supra note 2.
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we will not fault the panel for failing to discuss a nonstatutory mitigating circumstance that it was not specifically asked 

to consider.

Additionally, the underlying facts Schroeder uses as support for these nonstatutory mitigators are included in the 

presentence investigation report which the panel explained it 

considered in determining his sentence. The panel also specifically acknowledged many of these facts in its sentencing order. 

On the allegation that the State had ulterior motives due to 

potential liability, the panel explained the cell Schroeder and 

Berry shared was intended for a single inmate, Berry was set 

for release 2 weeks after moving in with Schroeder, Schroeder 

was serving a life sentence for Albers’ murder, and Schroeder 

warned that issues might arise if he were incompatible with 

whoever was assigned as his roommate. As to institutionalization, the panel described Schroeder’s current incarceration 

for Albers’ murder and noted his dysfunctional childhood and 

that “[h]e was involved in the juvenile court at a young age.” 

Finally, on the use of money he attained from Albers’ murder, 

the panel described that he took several thousand dollars from 

Albers after leaving him for dead and “drove around the area, 

paying off bills and making purchases.” It is clear the panel 

considered and weighed these facts even though it did not state 

a finding that they led to the specific nonstatutory mitigating 

circumstances Schroeder presently claims.

Because the panel was not required to make specific written findings on the application of nonstatutory mitigating factors, and taking into account the panel’s consideration of 

the facts Schroeder alleges support these factors, Schroeder’s 

claims involving the nonstatutory mitigators do not demonstrate reversible error.

We next turn to Schroeder’s claim that the panel failed 

in its analysis of statutory mitigating circumstances. Of the 

statutory mitigating factors, Schroeder claims the panel should 

have determined the following applied: Schroeder acted under 

unusual pressures or influences or under the domination 
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of another person, 19 Berry’s murder was committed while 

Schroeder was under the influence of extreme mental or emotional disturbance, 20 and Berry was a participant in Schroeder’s 

conduct or consented to the act. 21

For Schroeder’s claims that he was under unusual pressures 

or influences and extreme mental or emotional disturbance, 

he first alleges the panel failed to acknowledge his efforts to 

get Berry removed as a cellmate and his incompatibility with 

Berry. He supports this allegation by referencing the panel’s 

determination that Schroeder had calculated Berry’s murder for 

several days and chose no method of obviating his annoyance. 

Schroeder further quoted the panel’s explanation that finding 

the kite in the trash “suggests a premeditative and depraved 

mentality” in that Schroeder “did not ask that [Berry] be 

moved” and in that Schroeder “did not tell the guards that . . . 

Berry was in mortal danger if he were not moved.”

Schroeder contends this determination and the findings 

supporting it are contradicted by the evidence. Specifically, 

Schroeder points to the summaries of his interviews with 

Lundgren, included in the presentence investigation report, 

wherein he told Lundgren that he had “‘told all of the staff’” 

that he did not want Berry as a cellmate, that he told staff 

members he was not compatible with Berry when they assigned 

him to Schroeder’s cell, that a TSCI caseworker had tried to 

get the assignment switched prior to Berry’s moving in, and 

that corrections officers would laugh at the arrangement and 

joke they were surprised Schroeder had not killed Berry yet. 

Schroeder also points to Lundgren’s case synopsis noting that 

the TSCI caseworker Schroeder described in his interview 

explained that she did have concerns prior to Berry’s moving 

into the cell based on a “‘gut feeling’” that the arrangement 

would be “‘a bad idea’” but that she was unsuccessful in getting it switched.

19 See § 29-2523(2)(b).

20 See § 29-2523(2)(c).

21 See § 29-2523(2)(f).
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However, the panel’s statements that Schroeder did not ask 

for Berry to be moved and did not warn that Berry was in 

mortal danger are not contradicted by Lundgren’s summaries. 

Lundgren’s summary of Schroeder’s interview only described 

Schroeder’s assertions that he told staff prior to Berry’s moving in that he did not want Berry as a cellmate and was 

incompatible with him. Lundgren’s summary did not describe 

that Schroeder asserted he continued these complaints after 

the move was made and did not allege he made any actual 

requests for Berry to be moved. Moreover, there is nothing in 

Schroeder’s description of his interactions with TSCI officials 

where he indicated Berry was in mortal danger if they continued to share the cell. While Schroeder alleged corrections 

officers would joke they were surprised he had not killed Berry 

yet, such statements do not imply that Schroeder requested that 

Berry be moved or that they believed or had reason to believe 

that Berry was actually in mortal danger. Similarly, while 

the TSCI caseworker attempted to get Berry’s assignment to 

Schroeder’s cell switched prior to his move, there is nothing 

indicating that she was doing so at Schroeder’s request or that 

her “‘gut feeling’” was based upon a belief such an arrangement might lead to Berry’s death.

The panel reviewed the presentence investigation report and 

Lundgren’s summaries prior to determining whether there were 

mitigating circumstances. The panel’s findings that Schroeder 

did not request Berry’s removal from his cell and did not warn 

officials of potential danger to Berry is uncontradicted by the 

report. Instead, the report shows that Schroeder acted with 

premeditation and depravity in that Schroeder explained he had 

made up his mind to kill Berry days before he did so and in 

that he made no real attempts to avoid this result, even having 

made the decision to discard the kite which could have helped 

avoid the killing.

Schroeder’s explanations in his interview that he killed 

Berry because he was unclean and annoying do not rise to the 

level of accounts of unusual pressure or influence or extreme 
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mental or emotional disturbance. Nothing in the record indicates that Schroeder continually sought Berry’s removal 

from the cell or that any such requests were unheeded by 

TSCI staff.

Schroeder references the effect incarceration can have on 

inmates in support of his unusual pressures or influences and 

extreme mental or emotional disturbance claims. Schroeder 

cites to several articles, while acknowledging he did not provide them to the court because he did not present any evidence, 

which discuss the effects of institutionalization and incarceration in solitary confinement on an inmate’s mental health as 

well as articles and reports of security and staffing issues at 

TSCI and DCS.

[15] We have previously addressed the effect incarceration 

and, specifically, isolated confinement can have on individuals. In Jenkins, we analyzed the application of a nonstatutory 

mitigating factor of solitary confinement and quoted the understanding that “‘[y]ears on end of near-total isolation exact a 

terrible price.’” 22 However, we also noted that prison officials 

must have discretion to decide that in some instances, temporary solitary confinement is a useful or necessary means to 

impose discipline and to protect prison employees and other 

inmates. 23 Because of the defendant’s own extensive and violent actions in that case, the prison officials needed to have 

some recourse to deal with such an inmate, and we found that 

it was reasonable in not rewarding such behavior by considering the resulting confinement as a mitigating factor. 24 For the 

same reasons, the mere identification of a history of incarceration, without more, is insufficient to allege unusual pressures or influences or establish extreme mental or emotional 

22 Jenkins, supra note 2, 303 Neb. at 727, 931 N.W.2d at 888, quoting 

Davis v. Ayala, 576 U.S. 257, 135 S. Ct. 2187, 192 L. Ed. 2d 323 (2015) 

(Kennedy, J., concurring).

23 Jenkins, supra note 2.

24 Id.
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disturbance. Schroeder’s incarceration was due to his own 

actions, including, most recently, his murder of Albers.

Contrary to Schroeder’s assertions and as discussed in our 

analysis of Schroeder’s claims of the nonstatutory mitigating factors of institutionalization and the State’s alleged ulterior motive to avoid possible litigation, the underlying facts 

of Schroeder’s claims were acknowledged and weighed by 

the court. In its order, the panel acknowledged that the cell 

Schroeder and Berry shared was intended for a single inmate, 

Berry was set for release 2 weeks after moving in with 

Schroeder, Schroeder was serving a life sentence for Albers’ 

murder, and Schroeder had a history of incarceration including his history within the juvenile court system and his current 

sentence for Albers’ murder. The panel reasonably found that 

on their own, these facts and the reality of the effect incarceration can have on individuals were insufficient to establish that 

Schroeder acted under unusual pressures or influences or was 

under extreme mental or emotional disturbance. Under our de 

novo review, we reach the same conclusion.

Schroeder’s remaining claim, that the panel erred in failing to find Berry was a participant in Schroeder’s conduct 

or consented to the act, is without merit. Schroeder supports 

this proposition by noting, “Berry complied with Schroeder’s 

request that he turn the chair around and face away from 

Schroeder after Schroeder expressed extreme annoyance with 

his behavior.” 25 However, Berry’s facing away from Schroeder 

does not indicate participation or consent to his murder. 

Schroeder expressed frustration and requested Berry to turn 

away from him. How Berry would have understood this as 

Schroeder’s asking for aid in his strangulation and not as a 

method to avoid conflict is unclear. Schroeder offers no further 

argument to support this mitigating circumstance, and we agree 

with the panel’s finding that there was no evidence establishing 

this mitigating factor.

25 Brief for appellant at 40.
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Duty to Request DCS Chapter 83 

Custody Reports

Schroeder claims the panel had a duty to request additional 

records of Schroeder’s incarceration from DCS. These records 

are required to be kept by DCS under Neb. Rev. Stat. § 83-178 

(Reissue 2014) and include records concerning Schroeder’s 

background, conduct, associations, and family relationships; 

records regarding Schroeder’s “Central Monitoring,” 26 which 

may be relevant to the propriety of his placement with Berry; 

and any medical or mental health records.

[16-18] When an offender has been convicted of first degree 

murder and waives the right to a jury determination of an 

alleged aggravating circumstance, the court must order a presentence investigation of the offender and the panel must 

consider a written report of such investigation in its sentencing determination. 27 The presentence investigation and report 

shall include, when available, any submitted victim statements 

and an analysis of the circumstances attending the commission of the crime and the offender’s history of delinquency or 

criminality, physical and mental condition, family situation and 

background, economic status, education, occupation, and personal habits. 28 The investigation and report may also include 

any other matters the probation officer deems relevant or the 

court directs to be included. 29

In this case, the court ordered a presentence investigation 

and report, a report was prepared, and the panel considered it 

during its sentence determination. Schroeder does not allege 

this report failed to analyze and present any of the areas 

required by § 29-2261(3). Instead, Schroeder claims the court 

had a duty to request the presentence investigation report to 

include specific incarceration records. Schroeder relies on State 

26 Id. at 42.

27 § 29-2521(2) and Neb. Rev. Stat. § 29-2261(1) (Reissue 2016).

28 § 29-2261(3).

29 Id.
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v. Dunster 30 for this claim that the panel should have requested 

additional documents.

In that case, the defendant was sentenced to death after 

pleading guilty to first degree murder. 31 Prior to sentencing, 

the district court instructed the probation officer conducting 

the presentence investigation to include information in the 

possession of DCS as part of the report. 32 The court explained 

that access to this information was restricted by law and that it 

would not be released to the public except upon written order. 33

On appeal, the defendant assigned the district court’s consideration of this information, which included confidential mental 

health information provided by DCS, as reversible error. 34

However, we found the district court had given adequate notice 

to the defendant of its intent to consider such evidence to satisfy his due process rights. 35

Additionally, when the bill of exceptions was completed in 

that case, the DCS records were not included. As a result, we 

determined that in our de novo review, we could request and 

consider the additional documents just as the district court had 

requested and considered them. 36 In reaching this determination, we noted that our request of these documents did not 

indicate in advance how we would rule on appeal but merely 

followed our statutory requirements for review and honored the 

intent of the Legislature to provide “‘the most scrupulous standards of fairness and uniformity’” in reviewing the imposition 

of a sentence of death. 37

30 Dunster, supra note 16.

31 Id.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id. at 372, 631 N.W.2d at 913.
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Dunster neither explicitly nor implicitly required a lower 

court to receive and review documents of a defendant’s prior 

incarceration. Instead, it only evaluated the process of a district 

court seeking to consider specific documents during a sentencing proceeding and our ability to review the same information 

upon which the lower court relied. 38 Accordingly, Dunster did 

not add further requirements for the preparation of a presentence investigation report under § 29-2261(3).

Because the district court complied with its duties under 

§ 29-2261(1) in requesting the presentence investigation and 

report, because the presentence report included the requisite 

analysis of the § 29-2261(3) elements, and because there is no 

requirement that a sentencing court must request access to specific § 83-178 DCS records, the district court did not err by not 

requesting that the DCS records be included in the presentence 

investigation report.

Sufficiency of Safeguards to 

Prevent Arbitrary Results

Schroeder claims Nebraska’s death penalty is unconstitutional as applied to him under the 8th and 14th Amendments 

to the U.S. Constitution and article I, §§ 3, 9, and 15, of 

the Nebraska Constitution. Schroeder argues that insufficient 

safeguards exist to prevent arbitrary results when, as here, a 

defendant waives his right to counsel and refuses to introduce 

mitigating or proportionality evidence or argument.

[19,20] An accused has a state and federal constitutional 

right to be represented by an attorney in all critical stages of a 

criminal prosecution which can lead to a sentence of confinement. 39 However, a defendant may waive this right to counsel 

38 Dunster, supra note 16.

39 See, U.S. Const. amends. VI and XIV; Neb. Const. art. I, § 11; Scott v. 

Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979); Argersinger 

v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972); Jenkins, 

supra note 2; State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997); 

State v. Dean, 246 Neb. 869, 523 N.W.2d 681 (1994), overruled on other 

grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).
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so long as the waiver is made knowingly, voluntarily, and 

intelligently. 40

[21-23] The same constitutional provisions that provide 

a defendant the right to counsel also guarantee the right of 

the accused to represent himself or herself. 41 This right to 

self-representation plainly encompasses certain specific rights 

of the defendant to have his voice heard, including that the 

pro se defendant must be allowed to control the organization and content of his own defense. 42 We have previously 

explained that such control may include a waiver of the right 

to present mitigating evidence during sentencing in a death 

penalty case. 43

Schroeder does not challenge the validity of his waiver of 

counsel for the penalty phase or his election not to present mitigating evidence or proportionality argument. Instead, Schroeder 

argues that the exercise of the right to self-representation 

and, derived therefrom, the right to waive the presentation 

of evidence and argument conflicted with the constitutional 

restrictions against cruel and unusual punishment. Specifically, 

Schroeder addresses the effect such waivers have on the proportionality review by the sentencing panel. To establish the 

cruelty and unusualness of such punishment, Schroeder notes 

first that the proportionality requirement under Neb. Rev. 

Stat. §§ 29-2521.01 to 29-2521.04 (Cum. Supp. 2018) only 

requires the sentencing panel to review those cases in which 

the death penalty was imposed. Schroeder also asserts proportionality review is further limited depending on whether jury 

determinations in the reviewed cases were waived because, 

40 Jenkins, supra note 2; State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 

(2007).

41 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 

(1975); Jenkins, supra note 2; Wilson, supra note 39; State v. Green, 238 

Neb. 328, 470 N.W.2d 736 (1991).

42 McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 

(1984); Dunster, supra note 16; Wilson, supra note 39.

43 Dunster, supra note 16.
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when they are waived, a sentencing panel is required to issue 

written findings of fact as to any proven aggravating circumstances, but when there is no waiver, the jury does not issue 

such analysis. Schroeer argues that when a defendant waives 

counsel and refuses to meaningfully participate, the record on 

which the panel makes its proportionality determination is limited to what it requests and the State presents, which has the 

potential to be limited and biased in favor of the imposition of 

a death sentence.

[24,25] Because a death sentence is different from any 

other criminal penalty 44 and no system based on human judgment is infallible, we have taken, and should continue to 

take, the extra step to ensure fairness and accuracy with the 

imposition of the death penalty. 45 Taking this into account, 

the Legislature has enacted a statutory scheme to provide 

additional safeguards, 46 and in interpreting these statutes, we 

have followed the fundamental principle of statutory construction that penal statutes are to be strictly construed in favor of 

the defendant. 47

[26] Part of this statutory scheme, as explained, requires a 

court to order a presentence investigation report. 48 The sentencing panel must consider this report in reaching its sentence. 

Thus, contrary to Schroeder’s argument, even if the State presents evidence in favor of a specific sentence and the defendant 

declines to present contrary evidence, the court receives and 

must consider independent information from the report.

[27,28] In a death penalty case, the sentencing panel is 

required to review this report and determine whether it contradicts the State’s evidence of aggravating factors and whether 

any mitigating circumstances exist, including specifically 

44 State v. Hochstein and Anderson, 262 Neb. 311, 632 N.W.2d 273 (2001).

45 Id.

46 Neb. Rev. Stat. §§ 29-2519 to 29-2546 (Cum. Supp. 2018).

47 Hochstein and Anderson, supra note 44.

48 §§ 29-2261(1) and 29-2521(2).
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delineated statutory mitigators. 49 While the State must prove the 

aggravating circumstances beyond a reasonable doubt, 50 there 

is no burden of proof with regard to mitigating circumstances. 51

Accordingly, the panel’s evaluation of the independently compiled presentence investigation report and any evidence the 

defendant chooses to introduce is under the less restrictive 

mitigation standard and provides another safeguard to ensure 

fairness and accuracy in a death penalty determination.

[29-32] Once the panel makes its determinations about the 

existence of aggravating and mitigating circumstances, the 

panel is then required to undertake a proportionality review. 

This review looks at whether the sentence of death is excessive 

or disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant. 52 Proportionality 

review is not constitutionally mandated. 53 It exists in Nebraska 

by virtue of §§ 29-2521.01 to 29-2521.04, which direct this 

court to conduct a proportionality review in each appeal in 

which a death sentence is imposed. 54 A court’s proportionality 

review spans all previous cases in which a sentence of death is 

imposed and is not dependent on which cases are put forward 

by the parties. 55

Schroeder takes issue with proportionality review requiring 

a panel to compare only those cases in which the death penalty 

was imposed. 56 Instead, Schroeder argues the statutory scheme 

explicitly requires review of all homicide cases regardless of 

the resulting sentence.

49 §§ 29-2521 to 29-2523.

50 Torres, supra note 3.

51 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010); State v. Victor, 235 

Neb. 770, 457 N.W.2d 431 (1990).

52 § 29-2522(3).

53 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).

54 Id.

55 See id.

56 See State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), overruled on 

other grounds, State v. Chambers, 233 Neb. 235, 444 N.W.2d 667 (1989).
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It is unclear how Schroeder is arguing this fits under his 

assignment alleging unconstitutionality in the interplay of 

his waiver of counsel and election not to present evidence 

or argument with Nebraska’s capital sentencing scheme. The 

introduction of further evidence or whether or not Schroeder 

was represented by counsel does not affect what previous 

cases the panel was required to consider. In any case, we 

decline Schroeder’s invitation to overrule our decision in State 

v. Palmer 57 which interpreted §§ 29-2521.01 to 29-2521.04 to 

only require review of previous cases in which the death penalty was imposed.

Additionally, we are unconvinced by Schroeder’s claim that 

the proportionality review is unconstitutionally flawed due 

to having less analysis of the reviewed cases in which a jury 

determines the existence of the aggravating circumstance than 

of the reviewed cases in which a sentencing panel makes the 

determination. Again, it is unclear how Schroeder relates this 

alleged flaw to this assignment. If Schroeder is claiming that 

waiver of counsel and lack of argument would prohibit the 

panel from taking into account that previous aggravation determinations were decided by juries, this information would be 

apparent from the previous opinions and would be able to be 

considered by the panel independently of whether the defendant or an advocate explained such difference to the panel.

[33,34] Moreover, even when a jury determines the existence of an aggravating circumstance, a sentencing panel is 

required to put in writing its consideration of (1) whether the 

determined aggravating circumstance justifies the imposition 

of a sentence of death, (2) whether mitigating circumstances 

exist, and (3) whether a sentence of death would be excessive 

or disproportionate to penalties imposed in similar cases. 58 This 

writing must specifically refer to the aggravating and mitigating circumstances weighed in the determination of the panel. 59

57 Id. See, also, State v. Gales, supra note 53.

58 § 29-2522.

59 Id.
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As such, the basis of Schroeder’s argument that cases where 

a jury determines the existence of aggravating circumstances 

provide insufficient information for comparison in a proportionality review is without merit.

[35-38] Considering all of the above, Nebraska’s capital 

sentencing scheme provides additional statutory steps and considerations to ensure fairness and accuracy, and these safeguards exist regardless of a defendant’s strategy at the penalty phase. Due to this statutory scheme, a defendant cannot 

“choose” the death penalty. The sentencing decision rests 

with the court alone. 60 In order to exercise this authority, the 

statutory scheme requires that a sentencing panel consider not 

only evidence and argument presented by the parties but also 

an independently compiled presentence investigation report to 

determine whether the alleged aggravating circumstance exists, 

determine whether any mitigating factors are present which 

would weigh against the imposition of the death penalty, and 

conduct a proportionality review weighing the aggravating and 

mitigating factors and comparing the facts to previous cases 

where the death penalty was imposed. 61 These considerations 

exist and are weighed regardless of the evidence presented by 

the parties or their arguments.

[39,40] A defendant is entitled to present a defense and is 

guaranteed the right to choose the objectives for that defense. 62

As previously stated, the self-represented defendant must be 

allowed to control the organization and content of his own 

defense. 63 However, Schroeder suggests that in a death penalty case, the substantial nature of the proceedings requires 

an advocate in opposition to a sentence of death irrespective 

of the defendant’s chosen objective. To this end, he suggests 

§§ 29-2519 to 29-2546 implicitly require the appointment of a 

60 Dunster, supra note 16.

61 See Torres, supra note 3.

62 McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500, 200 L. Ed. 2d 821 

(2018); Jenkins, supra note 2.

63 Dunster, supra note 16.
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guardian ad litem to present evidence and argument as to why 

the death penalty should not be imposed.

[41] This suggestion is similar to that addressed in Dunster.

 64

The defendant therein had waived trial counsel for the penalty 

stage and chose not to present any mitigating evidence. On 

appeal, he claimed the court should have appointed “amicus 

counsel” to advocate against the imposition of the death penalty by presenting evidence and “‘argu[ing] for life,’” which is 

identical to the role Schroeder now envisions for an appointed 

guardian ad litem. 65 As noted in Dunster, when a defendant 

waives counsel and the presentation of mitigating evidence, 

the appointment of an advocate to present evidence and argue 

against the imposition of a sentence overrides that defendant’s 

constitutional right to control the organization and content of 

his or her own defense during sentencing.

[42,43] A criminal defendant has the right to waive counsel 

and present his or her own defense. 66 In a death penalty case, 

this includes the right of the defendant to elect not to present 

additional evidence or argument during the penalty proceedings. Even if a defendant makes such waiver and election, the 

Legislature has enacted safeguards to ensure fairness and accuracy in the resulting sentence. As explained above, these safeguards apply regardless of the defense strategy an individual 

defendant implements. Therefore, Schroeder’s assignment that 

Nebraska’s capital sentencing scheme is unconstitutional due 

to insufficient safeguards to prevent arbitrary results when a 

defendant waives counsel and elects not to present evidence or 

argument fails.

Excessiveness and 

Proportionality Review

[44,45] In reviewing a sentence of death, we conduct 

a de novo review of the record to determine whether the 

64 Id.

65 Id. at 361, 631 N.W.2d at 906.

66 See Dunster, supra note 16.
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aggravating and mitigating circumstances support the imposition of the death penalty. 67 In so doing, we consider whether 

the aggravating circumstances justify imposition of a sentence 

of death and whether any mitigating circumstances found to 

exist approach or exceed the weight given to the aggravating circumstances. 68

We first note Schroeder does not contest the factual basis 

for the § 29-2523(1)(a) aggravation allegation that Schroeder 

was convicted of Albers’ murder. It is undisputed that in 2006, 

Schroeder murdered Albers, who was at the time Schroeder’s 

75-year-old previous employer. It is also undisputed that 

Albers was robbed and that Schroeder had made the decision 

to kill Albers days before the robbery. Schroeder threatened 

and beat Albers, tied him up, threw him in the back of a 

pickup, and dumped him in an abandoned well, leaving him 

for dead. Based upon our de novo review, we determine this 

murder conviction, which was proved beyond a reasonable 

doubt at the sentencing hearing, is sufficient as an aggravating 

circumstance under § 29-2523(1)(a) to justify the imposition 

of the death penalty. In coordination with our analysis concerning the panel’s mitigating circumstance findings, we also 

agree with the panel’s determination that the applicable statutory and nonstatutory circumstances apparent from the record 

do not approach or exceed the aggravating circumstance in 

this case.

[46-48] In addition, we are required, upon appeal, to determine the propriety of a death sentence by conducting a proportionality review, comparing the aggravating and mitigating circumstances with those present in other cases in which a court 

imposed the death penalty. 69 The purpose of this review is to 

ensure that the sentences imposed in this case are no greater 

than those imposed in other cases with the same or similar 

67 Torres, supra note 3.

68 Id.

69 Id.
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circumstances. 70 Our proportionality review looks only to other 

cases in which the death penalty has been imposed and requires 

us to compare the aggravating and mitigating circumstances of 

the case on appeal with those present in those other cases. 71

In this case, we have reviewed our relevant decisions on 

direct appeal from other cases in which the death penalty was 

imposed. 72

Like the sentencing panel, we find Dunster particularly 

pertinent to our review. 73 The defendant therein was convicted 

of murdering his cellmate by strangling him with an electrical 

cord. 74 The defendant had previously been convicted of the 

earlier murder of a woman while attempting to collect a debt 

from her husband, and he had confessed to a different murder 

of another inmate while incarcerated for the first murder. 75

At the penalty phase, the State alleged a single aggravating 

circumstance of § 29-2523(1)(a) and presented evidence of 

the two previous killings. 76 After the trial court sentenced the 

defendant to death, we affirmed. 77 Such factual basis is similar 

to that in the instant case. As did the defendant in Dunster, 

Schroeder murdered his cellmate by strangulation. Schroeder’s 

previous murder of Albers was also pursuant to a plan to take 

money from his victim.

70 See id.

71 Id.

72 See, e.g., Jenkins, supra note 2; Torres, supra note 3; State v. Ellis, 281 

Neb. 571, 799 N.W.2d 267 (2011); Hessler, supra note 40; Dunster, supra 

note 16; State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified 

on denial of rehearing 255 Neb. 889, 587 N.W.2d 673 (1999); State v. 

Williams, 253 Neb. 111, 568 N.W.2d 246 (1997); State v. Ryan, 233 Neb. 

74, 444 N.W.2d 610 (1989); State v. Joubert, 224 Neb. 411, 399 N.W.2d 

237 (1986); State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979).

73 Dunster, supra note 16.

74 Id.

75 Id.

76 Id.

77 Id.
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Schroeder attempts to differentiate his case from Dunster

by emphasizing that while only one aggravating circumstance 

was alleged in Dunster, the allegation therein concerned 

two previous murders. Additionally, Schroeder argues those 

underlying murders were committed with more serious facts, 

including that there was suspected sexual assault of one of 

the victims.

First, it is not evident that the underlying murders in Dunster

included any more or less serious facts surrounding their 

execution. Schroeder threatened, beat, and robbed Albers and 

threw him bound and alive into a well to die. The murders the 

defendant in Dunster committed involved binding, beating, 

killing, and possible sexual assault. In both cases, the defendants acted with violence toward the persons.

[49,50] Additionally, while there were two underlying murders in Dunster, this does not mean Dunster cannot be used 

in a proportionality review. A proportionality review does not 

require that a court “color match” cases precisely. 78 It would 

be virtually impossible to find two murder cases which are the 

same in all respects. 79 Instead, the question is simply whether 

the cases being compared are sufficiently similar, considering 

both the crime and the defendant, to provide the court with a 

useful frame of reference for evaluating the sentence in this 

case. 80 As the factual connections show, Dunster is sufficiently 

similar for purposes of evaluating proportionality.

[51-53] Along the same lines, Schroeder attempts to distinguish his case from others cited by the sentencing panel and 

reviewed on appeal by noting that the majority of those cases 

had multiple aggravating factors. However, we have established 

that one aggravating circumstance may be sufficient under our 

statutory system for the imposition of the death penalty. 81 In 

78 Ellis, supra note 72.

79 Id.

80 Id.

81 Dunster, supra note 16.
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our proportionality review, the evaluation of whether the death 

penalty should be imposed in a specific case is not a mere 

counting process of “X” number of aggravating circumstances 

and “Y” number of mitigating circumstances and, instead, asks 

whether the reviewed cases are sufficiently similar to provide 

a useful reference for that evaluation. 82 Thus, even though 

other cases may involve additional or different aggravating 

circumstances, they may still be sufficiently similar to provide 

such reference.

Having reviewed our previous cases which have affirmed 

the imposition of a death penalty and compared the aggravating and mitigating circumstances present in those cases, 

we are persuaded that the sentence imposed in this case is 

not greater than those imposed in other cases with the same 

or similar circumstances. Accordingly, we affirm Schroeder’s 

death sentence.

CONCLUSION

In consideration of all of the above, Schroeder’s conviction 

and sentence for first degree murder are affirmed.

Affirmed.

Freudenberg, J., not participating.

82 See, Ellis, supra note 72; Dunster, supra note 16.