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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

STATE V. TRAI

Cite as 312 Neb. 843

State of Nebraska, appellee, v. 

Aubrey C. Trail, appellant.

___ N.W.2d ___

Filed November 10, 2022. No. S-21-557.

1. Pleadings: Parties: Judgments: Appeal and Error. A denial of a 

motion to sever will not be reversed unless clear prejudice and an 

abuse of discretion are shown, and an appellate court will find such an 

abuse only where the denial caused the defendant substantial prejudice 

amounting to a miscarriage of justice.

2. Trial: Witnesses. It is for the trial court to determine the extent to which 

a sequestration order will be applied in a given case.

3. Motions for Mistrial: Appeal and Error. An appellate court will not 

disturb a trial court’s decision whether to grant a motion for mistrial 

unless the court has abused its discretion.

4. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial 

court, and unless an abuse of discretion is shown, the trial court’s determination will not be disturbed.

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

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

6. 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.

7. Constitutional Law: Criminal Law: Jury Trials. The Sixth Amendment 

secures to criminal defendants the right to be tried by an impartial jury 

drawn from sources reflecting a fair cross-section of the community.

8. Constitutional Law: Juror Qualifications. The fair-cross-section 

venire requirement is not explicit in the text of the Sixth Amendment, 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/09/2022 01:07 AM CST
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Cite as 312 Neb. 843

but is derived from the traditional understanding of how an impartial 

jury is assembled.

9. ____: ____. The representativeness constitutionally required at the 

venire stage can be disrupted at the jury-panel stage to serve a State’s 

legitimate interest.

10. Death Penalty: Juror Qualifications. An adequate voir dire where 

jurors are directly involved in sentencing in a capital case entails the 

opportunity to inquire into whether the views on the death penalty 

would disqualify prospective jurors from sitting.

11. Juror Qualifications. Groups defined solely in terms of shared attitudes 

that would prevent or substantially impair members of the group from 

performing one of their duties as jurors are not distinctive groups for 

fair-cross-section purposes.

12. Constitutional Law: Juror Qualifications: Proof. In order to establish 

a prima facie violation of the fair-cross-section requirement under the 

Sixth Amendment, a defendant must show (1) that the group alleged 

to be excluded is a “distinctive” group in the community, (2) that the 

representation of this group in venires from which juries are selected is 

not fair and reasonable in relation to the number of such persons in the 

community, and (3) that this underrepresentation is due to systematic 

exclusion of the group in the jury selection process.

13. Juries. An impartial jury is nothing more than jurors who will conscientiously apply the law and find the facts.

14. Death Penalty: Juror Qualifications. Beliefs with respect to the death 

penalty are within the individual’s control. Death qualification does not 

create an appearance of unfairness, as it only results in the removal for 

cause of those jurors who are unwilling to temporarily set aside their 

own beliefs in deference to the rule of law.

15. Death Penalty: Juries: Proof. The State has a legitimate interest in 

avoiding the burden of presenting the same evidence to different juries 

for the guilt phase and the aggravation phase of trial.

16. Constitutional Law: Death Penalty: Juries. The State does not violate 

the Sixth Amendment right to an impartial jury by death qualifying the 

jury before a trial wherein it has alleged an aggravator that, if found by 

the jury, will make the defendant eligible for the death penalty.

17. Equal Protection: Statutes. When a classification created by state 

action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection 

Clause requires only that the classification rationally further a legitimate 

state interest.
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Nebraska Supreme Court Advance Sheets

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STATE V. TRAI

Cite as 312 Neb. 843

18. Constitutional Law: Death Penalty. The Eighth Amendment and article I, §§ 9 and 15, of the Nebraska Constitution are not violated by death 

qualification in a capital case.

19. Constitutional Law: Trial: Joinder. There is no constitutional right to 

a separate trial.

20. Trial: Joinder: Appeal and Error. Whether offenses were properly 

joined involves a two-stage analysis: (1) whether the offenses were sufficiently related to be joinable and (2) whether the joinder was prejudicial to the defendant.

21. Trial: Joinder: Proof: Appeal and Error. A defendant appealing the 

denial of a motion to sever has the burden to show compelling, specific, 

and actual prejudice.

22. Trial: Joinder. Severe prejudice occurs when a defendant is deprived 

of an appreciable chance for an acquittal, a chance that the defendant 

would have had in a severed trial.

23. ____: ____. Prejudice from joinder cannot be shown if evidence of 

one charge would have been admissible in a separate trial of another 

charge.

24. Conspiracy: Hearsay. The coconspirator exception to the hearsay rule 

is applicable regardless of whether a conspiracy has been charged in the 

information or not.

25. ____: ____. Under the coconspirator exception to the hearsay rule, the 

declarant conspirator who partners with others in the commission of a 

crime is considered the agent of his or her fellow conspirators, and the 

commonality of interests gives some assurance that the statements are 

reliable.

26. Conspiracy: Hearsay: Evidence. Whether or not a conspiracy has 

been charged in the information, before the trier of fact may consider 

testimony under the coconspirator exception to the hearsay rule, a prima 

facie case establishing the existence of the conspiracy must be shown by 

independent evidence, to prevent the danger of hearsay evidence being 

lifted by its own bootstraps.

27. Trial: Witnesses. The exclusion or sequestration of a witness is within 

the discretion of the trial court.

28. Trial: Witnesses: Appeal and Error. The denial of a sequestration 

motion will not be overturned absent evidence of prejudice to the 

defendant.

29. Criminal Law: Motions for Mistrial. A mistrial is properly granted in 

a criminal case where an event occurs during the course of trial which 

is of such a nature that its damaging effect cannot be removed by proper 

admonition or instruction to the jury and thus prevents a fair trial.
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Cite as 312 Neb. 843

30. Motions for Mistrial: Proof: Appeal and Error. To prove error predicated on the failure to grant a mistrial, the defendant must prove the 

alleged error actually prejudiced him or her, rather than creating only 

the possibility of prejudice.

31. Jurors: Jury Instructions: Presumptions. Absent evidence to the contrary, the legal system presumes that jurors, to the extent they are able, 

will comply with curative instructions and judicial admonitions.

32. Motions for New Trial: Statutes. A motion for a new trial is a statutory 

remedy and can be granted by a court of law only upon the grounds, or 

some of them, provided for by the statutes.

33. Motions for New Trial: Proof. The asserted ground for a new trial must 

affect adversely the substantial rights of the defendant, and it must be 

shown that the defendant was prejudiced thereby.

34. Courts: Motions for Mistrial: Motions for New Trial: Appeal and 

Error. A trial court is vested with considerable discretion in passing on 

motions for mistrial and for a new trial, and an appellate court will not 

disturb a trial court’s decision whether to grant a motion for mistrial or 

a motion for new trial unless the court has abused its discretion.

35. Appeal and Error. It is an abuse of discretion to make an error of law 

or clear errors of factual determination.

36. Judges: Witnesses: Appeal and Error. The trial judge is better situated 

than a reviewing court to pass on questions of witness credibility and the 

surrounding circumstances and atmosphere of the trial.

37. Motions for Mistrial. As a general matter, a defendant is not permitted 

to profit from the defendant’s own bad conduct by disrupting courtroom 

proceedings and then urging disruption as a ground for mistrial.

38. Criminal Law: Motions for Mistrial. Disruptive acts of the defendant 

are not irremediable simply because they reflect some attribute consist

ent with the charged crime.

39. Constitutional Law: Due Process: Criminal Law: Jury Trials: Proof.

The Sixth Amendment right to a speedy and public trial by an impartial 

jury, in conjunction with the Due Process Clause, requires that each element of a crime be proved to a jury beyond a reasonable doubt.

40. Constitutional Law: Statutes: Death Penalty: Aggravating and 

Mitigating Circumstances: Jury Trials. Under a statutory scheme 

in which the death penalty cannot not be imposed unless at least one 

aggravating factor is found to exist beyond a reasonable doubt, the 

Sixth Amendment requires the factual determination of the aggravating 

factor be entrusted to the jury.

41. Constitutional Law: Death Penalty: Aggravating and Mitigating 

Circumstances: Jury Trials. The Sixth Amendment requires only the 

right to a jury determination of the death-eligibility finding of one or 
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Cite as 312 Neb. 843

more aggravating circumstances and it does not apply to the selection decision.

42. ____: ____: ____: ____. In a capital sentencing proceeding, just as in 

an ordinary sentencing proceeding, a jury is not constitutionally required 

to weigh the aggravating and mitigating circumstances or to make the 

ultimate sentencing decision within the relevant sentencing range.

43. ____: ____: ____: ____. Nebraska’s sentencing scheme does not violate the Sixth Amendment right to a jury trial or article I, § 6, of the 

Nebraska Constitution, by leaving to the three-judge panel the ultimate 

life-or-death decision upon making the selection decisions of whether 

the aggravating circumstances justify the death penalty and whether 

sufficient mitigating circumstances exist that approach or exceed the 

weight given to the aggravating circumstances.

44. Constitutional Law: Sentences. The Cruel and Unusual Punishment 

Clause prohibits (1) barbaric punishments under all circumstances and 

(2) punishments that are not graduated and proportioned to the offense.

45. Constitutional Law: Statutes: Death Penalty: Aggravating and 

Mitigating Circumstances. Nebraska’s statutory scheme, delegating 

to the three-judge panel determinations of whether the aggravating 

circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given 

to the aggravating circumstances, does not violate the 8th and 14th 

Amendments to the U.S. Constitution or article I, § 9, of the Nebraska 

Constitution.

46. Sentences: Death Penalty: Appeal and Error. Proportionality review 

requires the Supreme Court to compare the aggravating and mitigating 

circumstances with those present in other cases in which a district court 

imposed the death penalty.

47. Death Penalty: Aggravating and Mitigating Circumstances. The balancing of aggravating circumstances against mitigating circumstances is 

not merely a matter of number counting, but, rather, requires a careful 

weighing and examination of the various factors.

48. ____: ____. The death penalty can be imposed when only one aggravating circumstance is present.

Appeal from the District Court for Saline County: Vicky L. 

Johnson, Judge. Affirmed.

Benjamin H. Murray, of Murray Law, P.C., L.L.O., for 

appellant.

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

Senior Assistant Attorney General, for appellee.
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Cite as 312 Neb. 843

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

The defendant was convicted by a jury of murder in the 

first degree and criminal conspiracy to commit first degree 

murder. He was also convicted, pursuant to a plea, of improper 

disposal of human skeletal remains. A three-judge panel sentenced the defendant to death. The defendant asserts on appeal 

that the three-judge panel erred in determining the sentence 

of death was not excessive or disproportionate to the penalty 

imposed in similar cases. Alternatively, he argues Nebraska’s 

death penalty scheme is unconstitutional because it allows 

a panel of judges rather than a jury to make findings of 

whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist 

which approach or exceed the weight given to the aggravating 

circumstances. The defendant also challenges the constitutionality of death qualifying the potential jurors, arguing that it 

creates a conviction-prone jury. Finally, the defendant challenges the denial of his pretrial motion to sever the conspiracy 

and murder charges, the court’s release of the victim’s mother 

from sequestration after she testified, the denial of his motion 

for a mistrial after a verbal outburst and act of self-harm in 

front of the jury, and the denial of a motion for a new trial 

after evidence was submitted allegedly demonstrating the selfharm would not have occurred but for the alleged misconduct 

of jail staff. We affirm.

II. BACKGROUND

The State’s amended information charged Aubrey C. Trail 

with one count of murder in the first degree, in violation of 

Neb. Rev. Stat. § 28-303(1)(a) (Cum. Supp. 2020); one count 

of improper disposal of human skeletal remains, in violation 

of Neb. Rev. Stat. § 28-1301(2)(b) (Reissue 2016); and one 

count of criminal conspiracy to commit first degree murder, in 
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Cite as 312 Neb. 843

violation of Neb. Rev. Stat. § 28-202 (Cum. Supp. 2020). The 

victim was Sydney Loofe (Sydney), who was 24 years old at 

the time of her death on or about November 15, 2017.

The operative information gave notice that the State intended 

to adduce evidence of the aggravating circumstances (1) that 

the murder manifested exceptional depravity by ordinary standards of morality and intelligence and (2) that Trail has a 

substantial prior history of serious assaultive or terrorizing 

criminal activity. The State later removed the notice of second 

aggravator.

As part of his trial strategy, Trail pled no contest to the 

improper disposal of human skeletal remains. His plea was 

accepted prior to the beginning of the jury trial on the remaining two counts. The theory of the defense was that Trail was 

involved in a consensual sexual relationship with a group of 

women. This group always included Bailey Boswell, with 

whom Trail lived. The group also at various points included 

Ashley Hills, Anastasia Golyakova, and Kaitlyn Brandle. The 

defense argued that because Hills and Golyakova had recently 

left the group, Trail was hoping Sydney would become a new 

member. According to the defense, Sydney was interested in 

joining the group and was accidentally killed while the recipient of consensual erotic asphyxiation. Trail then panicked and 

dismembered and disposed of Sydney’s remains.

1. Jury Selection

Before trial, defense counsel moved to “prevent death qualification of the jury.” In the motion, defense counsel objected 

to any mention—in the jury questionnaires, during jury selection, or during the trial of guilt or innocence—of the possible 

sentences Trail might receive. Defense counsel asserted that 

informing the jury of the possible penalty of death is unnecessary and results in excluding those jurors who cannot perform 

their duties because of their beliefs on the death penalty. 

According to defense counsel, this process results in those 

charged with capital offenses being unjustifiably subjected to 
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Cite as 312 Neb. 843

conviction-prone juries, which violates equal protection under 

the 14th Amendment to the U.S. Constitution and article 1, 

§ 3, of the Nebraska Constitution; the right under the 6th 

Amendment to the U.S. Constitution to a fair and impartial 

cross-section of jurors; and the right to heightened reliability 

in capital cases as protected by the 8th Amendment to the 

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

Constitution.

As is relevant to this appeal, defense counsel asserted that 

“empirical research has demonstrated that the systematic 

exclusion of jurors who have a moral objection to the death 

penalty results in capital juries that tend to be . . . more 

conviction-prone” and that these views are not representative 

of a fair cross-section of the community. Further, asking jurors 

about their views on the death penalty magnifies the effect of 

conviction-prone beliefs. While defense counsel acknowledged 

that the U.S. Supreme Court, in Lockhart v. McCree,

 1 rejected 

a claim that the process of death qualification violates the faircross-section requirement of the Sixth Amendment and the 

right to an impartial jury, defense counsel cited in the written 

motion to various articles describing additional studies in the 

30-plus years since McCree, indicating the process of death 

qualification creates conviction-prone juries. No testimony or 

other evidence was adduced in support of the motion.

Defense counsel stated that the justification for death qualification presupposes a statutory scheme in which a single jury 

determines both the guilt and the penalty. Defense counsel 

argued that because in Nebraska, the jury does not determine the sentence in the penalty phase, informing the jury 

of the possible sentence of death serves no legitimate purpose. Accordingly, a potentially conviction-prone jury created 

by death qualification cannot pass the heightened scrutiny 

allegedly applicable to this conviction-prone classification 

of jurors.

1 Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 

(1986).
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Cite as 312 Neb. 843

The court overruled the motion and proceeded with voir 

dire. During voir dire, defense counsel renewed the objection 

to “the death qualification of each individual juror during jury 

selection.” The renewed objection was overruled.

Juror questionnaires and the judge’s statement from the 

bench during voir dire informed the potential jurors that 

the charges Trail faced could result in the death penalty. The 

judge explained that the sentence itself would be determined 

by a panel of judges, but that if Trail were found guilty of first 

degree murder, the jurors would be asked to listen to some 

more evidence and determine if the State had proved additional elements, after which their duty would be done and the 

matter would go to the panel of judges for sentencing.

During the jury selection process, jurors Nos. 104 and 126 

stated in chambers that their views against the death penalty 

would impair their ability to be fair and impartial. Both jurors 

were struck for cause on the State’s motion. Defense counsel 

did not object to them being excused.

Jurors Nos. 23, 60, 78, 245, 261, and 275 were struck for 

cause on defense counsel’s motion because they indicated their 

belief in Trail’s guilt would interfere with their ability to be 

fair and impartial.

Jurors Nos. 108, 113, and 262 indicated they did not believe 

in the death penalty but could perform their factfinding duties 

in a fair and impartial manner. Jurors Nos. 113 and 262 were 

subject to peremptory challenges, but juror No. 108 was not.

2. Motion to Sever Murder and 

Conspiracy Charges

Defense counsel moved pursuant to Neb. Rev. Stat. 

§ 29-2002 (Reissue 2016) to sever the trial on the murder 

charge from the other charges. As relevant to this appeal, 

defense counsel asserted joinder would prejudice Trail because 

evidence admissible in support of the conspiracy charge would 

not be admissible in support of the murder charge, if those 

two charges were tried separately. Defense counsel explained 

there would be no evidence proving the conspiracy that would 
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Cite as 312 Neb. 843

be truly independent of the murder charge. Defense counsel 

believed that, because of this, there could be no prima facie 

case through independent evidence establishing the existence 

of the underlying conspiracy, which is necessary to admit 

testimony under the coconspirator exception to the hearsay 

rule. The defense argued the State was trying to introduce 

hearsay evidence to establish a conspiracy, with its more flexible hearsay rules, and then use that conspiracy to permit the 

introduction of otherwise inadmissible hearsay testimony into 

evidence to support the murder charge.

The State responded it intended to establish, without “impermissible hearsay,” a prima facie case of conspiracy, before 

attempting to introduce evidence under the coconspirator 

exception to the hearsay rule. The evidence to establish the 

conspiracy, explained the State, would primarily consist of 

the testimony of Hills, Golyakova, and Brandle, all of whom 

Trail had tried to convince to participate in a murder. The State 

asserted their testimony would be admissible as evidence of 

premeditation on the murder charge and would be introduced 

into evidence even if the trial of the conspiracy count were not 

joined with the murder count.

The court overruled the motion to sever. However, it warned 

the State that “it needs to structure its case to avoid the bootstrapping problems and that I will be keeping an eye on the 

case as it proceeds.”

3. Sequestration and Release 

of Sydney’s Mother

Before trial commenced, the court granted defense counsel’s motion to sequester witnesses. Sydney’s mother was the 

first witness to testify at trial. After being cross-examined 

by defense counsel, the State asked that Sydney’s mother be 

released from her subpoena. The State said it would waive 

sequestration and would be willing to allow the defense to 

call Sydney’s mother out of turn if it wished, so that Sydney’s 

mother could be present to watch the remainder of the trial. 
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Cite as 312 Neb. 843

Defense counsel objected. Following a discussion in chambers that was not on record, the court pronounced that it was 

releasing Sydney’s mother from sequestration but would allow 

the defense to reopen its cross-examination if it wished to do 

so. Sydney’s mother was not recalled to testify by either party 

after being released from sequestration.

4. Evidence Adduced at Trial

At trial, evidence was adduced that Trail and Boswell moved 

into a basement apartment in Wilber, Nebraska, in June 2017. 

They had been in a romantic relationship since the summer of 

2016. To make money, they sold stolen goods, including sales 

at a local antiques market.

(a) Sydney’s Contact With Trail and 

Boswell in November 2017

In November 2017, Boswell posed as “Audrey” on an online 

dating application (dating app). Boswell began messaging with 

Sydney on November 11 and learned that her family lived 

hours away from where Sydney lived in Lincoln, Nebraska. 

She also learned that Sydney worked as a store clerk at a 

Lincoln hardware store. Sydney and Boswell arranged a first 

date on November 14. Text messages between them are consistent with arranging a first date. Neither Trail nor any other 

third party is mentioned in the text messages.

Sydney initially delayed giving Boswell her address, but 

upon further request on the evening of November 13, 2017, 

provided it. Within 1 minute of obtaining the address, Boswell 

conducted an internet search for its location. Within 5 minutes 

of obtaining that information, Boswell made a reservation at a 

hotel nearby.

Trail and Boswell checked into that hotel before the first 

date. After a couple of hours on their first date, Boswell 

returned Sydney home. Sydney did not go to the hotel. Boswell 

joined Trail at the hotel, where they again spent the night.

Sydney had accepted a second date with Boswell to occur 

on November 15, 2017. On the morning of November 15, 
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Trail and Boswell left the hotel and went to a hardware store 

where they purchased dropcloths, a hacksaw, blades, and 

tin snips.

Cell phone location information indicated that around the 

time Sydney would have left for work, Trail and Boswell 

drove to the vicinity of Sydney’s apartment. Trail and Boswell 

then took the same route Sydney took to work.

Shortly after Sydney started her shift, Trail entered Sydney’s 

workplace alone. Video footage showed that as Sydney walked 

toward her station at the “guard shack,” she crossed paths with 

Trail, who was walking into the store. Trail did not interact 

with Sydney, and she did not appear to recognize Trail. As 

Sydney walked away, Trail turned around twice to watch her. 

Trail then called Boswell. Trail proceeded into the hardware 

store where he purchased a chemical drain cleaner and a 

long cord.

Cell phone location information showed that Trail and 

Boswell went back to their Wilber apartment while Sydney 

was at work. While in Wilber, Boswell made two trips to local 

stores. On the first trip, she purchased bleach and large trash 

bags. Later, she purchased duct tape and roasting pans.

Throughout the day, Boswell texted Sydney to ask how 

her day was going and communicate that she was looking 

forward to their date. Sydney left work at the end of her shift 

on November 15, 2017. Boswell left the Wilber apartment 

around 6 p.m. and picked Sydney up at her apartment around 

6:54 p.m.

Trail was at the Wilber apartment. Boswell called Trail 

at 7:11 p.m. Cell phone location information indicated that 

Sydney arrived at Trail and Boswell’s apartment at approximately 8 p.m. on November 15, 2017, and that both Trail and 

Boswell were present at the apartment at that time. The cell 

tower lost all signal from Sydney’s phone at 8:40 p.m.

A resident of the apartment building where Trail and Boswell 

lived smelled bleach late that night. The smell of bleach was 
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so strong that the following day, another resident of the building became ill from it.

Sydney did not report to work the next day. She was never 

seen alive again.

(b) Disposal of Sydney’s Body 

and Cause of Death

Cell phone location information indicated that Trail and 

Boswell left their apartment the afternoon of November 16, 

2017, and traveled to an area in Clay County. On December 

4 and 5, after tracing Trail’s and Boswell’s cell phone location information, most portions of Sydney’s body were found 

in a ditch in the area Trail and Boswell had traveled to on 

November 16. The remainder of Sydney’s body, including most 

of her internal organs, was never found. Law enforcement also 

found duct tape, tarps, a sauna suit with the crotch missing, 

gloves, and various items of clothing in the vicinity.

Sydney’s body had been segmented into 14 parts and 

placed into garbage bags. An autopsy revealed the manner of 

death to be homicidal violence that included an element of 

strangulation. The hyoid bone in the neck had been crushed, 

there was a scleral hemorrhage in one of her eyes, and there 

was petechiae, or “little hemorrhages,” throughout the face, 

including in the eyelids and under the eyelids. Scleral hemorrhages and petechiae are due to an occlusion of blood flow 

and consistent with either manual or ligature strangulation. 

When asked whether these signs are “very common in strangulation cases,” the expert responded, “Yes. Manual strangulation, yes.”

Expert testimony introduced by the State reflected that strangulation due to erotic asphyxiation is rare and that a fracture 

of the hyoid bone, which resides deep in the neck tissue, is 

very uncommon during erotic asphyxiation. Sydney’s body 

also showed indications that around the time of death, she 

experienced blunt force trauma. This included bruises on the 

back of the head and down the middle of her back and a deep 
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bruise into the muscle of her inner thigh. Around the time of 

her death, Sydney also suffered a torn earlobe around a piercing site. Abraded contusions around Sydney’s wrists revealed 

evidence of restraints.

The autopsy was complicated by the absence of most of the 

organs of Sydney’s torso and abdomen, as well as the absence 

of other body parts, such as the upper part of the trachea, windpipe, larynx, and veins and arteries of the neck. These appeared 

to have been removed post mortem by use of a sharp blade. 

The pathologist did not believe the mutilation of Sydney’s 

body was due to animal predation.

In an interview with law enforcement after he was apprehended, Trail spoke of draining Sydney’s blood from her body 

and being “very thirsty that day.” Numerous superficial post 

mortem shallow cuts were found on Sydney’s body. These 

included cuts underlining and framing a tattoo on Sydney’s arm 

reading, “Everything will be wonderful someday.”

(c) Hills’, Golyakova’s, and Brandle’s 

Relationships With Trail and Boswell 

From July to November 2017

Before they were called individually to testify, defense 

counsel objected at trial to the introduction of the deposition 

testimonies of Hills, Golyakova, and Brandle on the grounds 

that the State had failed to establish a prima facie case of a 

conspiracy through independent evidence. The State responded 

that evidence had already been adduced of overt acts of the 

conspiracy, such as online dating recruitment, the purchases 

at the hardware store the day before the murder, staying at 

the hotel, driving by Sydney’s apartment and observing her at 

work, and the cell phone evidence linking Trail and Boswell 

to Sydney’s murder. The State explained that Sydney’s murder 

was part of an overarching conspiracy beginning in July 2017 

to kill someone, and to continue killing.

The court ruled that the State had not yet established a prima 

facie case for a conspiracy through independent evidence. 
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After that ruling, the State introduced, without objection, physical evidence that Golyakova and Brandle had been inside the 

Wilber apartment. The State also introduced the testimony of 

law enforcement that its investigation had linked Golyakova 

to several stays with Trail and Boswell at a hotel in Falls City, 

Nebraska, between July and October 2017. The State then 

adduced Hills’ testimony.

(i) Hills’ Testimony and Prima 

Facie Case of Conspiracy

Without objection, Hills testified that she met Boswell 

through an online dating app in July 2017 and that she met 

Trail through Boswell. Boswell used an alias.

Trail told Hills that he could help her get revenge on 

an abusive stepfather. He invited Hills to become 1 of 12 

other women he claimed were associated with him, whom he 

referred to intermittently as “his girls” and “witches.” Trail 

showed Hills nude photographs of the alleged witches, but she 

never met any of them. Boswell was the “queen witch.” Trail 

claimed to be a vampire.

In August 2017, Hills was introduced to Golyakova as a person who Trail said might become “one of us” as a “watcher.” 

Trail told Hills that she could leave his “coven” at any point 

until she took her first “soul,” which she understood meant to 

kill someone and “take their last breath.”

Hills believed Trail. She continued to associate with Trail 

and Boswell. She was sexually involved with both. Their 

sexual activities involved erotic asphyxiation. Hills had to follow various rules that Trail set for her behavior, such as having 

to check in every 3 hours while away from the Wilber apartment, remaining unclothed while in the apartment, and having 

to ask permission to do anything, even to use the restroom or 

get a drink of water. If she did not follow these rules or otherwise misbehaved, she was physically punished by being hit, 

whipped, or choked. Trail paid her an allowance. Hills also 

assisted in selling antiques.
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Hills described a process she observed a few times where 

Boswell would start talking to a woman she met through a 

dating app and then hand off the communication with that 

woman to Trail. If the woman wanted to talk on the phone, 

Trail would give the phone to Boswell after giving her a summary of prior text communications.

Hills stated that in August 2017, while at a grocery store, 

Boswell briefly met with a woman she had been communicating with in that manner. Boswell directed the woman to go 

speak with Trail. Trail and the woman spoke for a while before 

Trail, Boswell, and Hills left the store. Hills testified that Trail 

asked her afterward if she wanted that woman to be her “first 

kill.” While Hills responded in the affirmative, she was told a 

couple of weeks later that the woman had traveled to California 

to visit family. Trail told Hills they “would either save her for 

another time or find someone else.”

Trail, Boswell, Hills, and Golyakova went on a vacation 

together that August. Shortly thereafter, Trail stated that he 

wanted to kill Golyakova. Trail explained Golyakova was too 

nice and “didn’t have the evil in her.” A plan was discussed to 

do so, but never executed. Trail threatened Hills that he would 

kill her family if she ever disclosed his plans.

Hills stated that Trail often spoke of torturing and killing 

someone and said that causing pain to someone would make 

the killer more powerful. Trail was aroused by the idea of 

watching her and Boswell torture someone. He told Hills he 

wanted the idea of torturing someone to be arousing for her 

and Boswell too. Trail asked Hills to think about ways she 

would torture her victim.

In September 2017, Hills told Boswell she wanted out. 

Among other reasons, she did not want to kill Golyakova. Hills 

moved to another town and had only sporadic contact with 

Trail and Boswell thereafter.

During a break in Hills’ testimony, the court found in chambers that the State had provided sufficient evidence to prove a 

prima facie case of conspiracy and that “it may now get into 
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the statements of . . . Boswell.” Defense counsel asked if “when 

we start getting into the hearsay,” it could have a continuing 

objection after making the first objection. The court granted the 

continuing hearsay objection, which defense counsel explained 

would be for any statements attributable to Boswell.

Hills resumed her testimony. She stated that Trail once 

showed her Boswell’s “killing bag.” He had pulled out a hammer, some pliers, and a sauna suit from the bag and showed 

them to her. Trail told Hills she would get her own killing bag 

“when it was time.” Trail said the sauna suit was so that they 

would not get blood on themselves.

(ii) Golyakova

Golyakova testified at trial that in the late summer of 2017, 

she met Boswell through a dating app. Boswell initially used 

an alias. She was later introduced to Trail by Boswell, who 

explained they were in an “open relationship.” She even

tually entered into a relationship with Trail and Boswell that 

was somewhat similar to Hills’, but Boswell was in charge of 

punishing her. Also, erotic asphyxiation was apparently not 

involved. Golyakova soon told them she was not comfortable 

with some of the rules, after which she no longer had to follow them. Golyakova did household chores and assisted in the 

antiques enterprise. Golyakova testified that she liked the idea 

of someone taking care of her.

Trail spoke to Golyakova about having a coven and special powers, but she did not believe him. Golyakova testified that Trail and Boswell eventually started talking to her 

about whether she would be willing to torture and kill someone. They told her they wanted to make videos of people 

being tortured, which they could sell. Trail and Boswell told 

Golyakova that they could make $1 million, split it, and go 

their separate ways. They sometimes also discussed murdering someone in a certain manner, “like for sacrifices or something.” Trail and Boswell assured Golyakova that their victim 

would be someone who had done bad things. Golyakova said 
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she was not comfortable hurting anyone, and she left the 

group in October.

(iii) Brandle

Brandle testified at trial that she met Boswell through a 

dating app in October 2017. Boswell used an alias. Brandle 

entered into a relationship with Boswell similar to the others, 

except she was more focused on having a romantic relationship with Boswell and did not want anything from Trail. She 

understood that she was entering into a dominant-submissive 

relationship and that Trail was part of a “package deal,” but 

testified that there was no mention of choking. She had not 

been in a dominant-submissive relationship before, but she 

wanted to be with Boswell and decided to “give it a shot.” She 

did not get directly involved in their antiques enterprise.

Brandle said there was some discussion of witches. Trail 

told her that she was Boswell’s “familiar” and that they had 

known each other in past lives. Trail also mentioned having 

a coven of witches that she would meet someday. Trail told 

Brandle she could ask for one wish, but she “would have to 

pay the price.” Brandle explained that she was skeptical and 

did not pursue that line of discussion. She was never told what 

the “price” would be.

On November 13, 2017, Boswell complained about another 

woman she claimed was stalking her and asked Brandle if 

she would ever “kill for her.” During intercourse, while Trail 

watched, Boswell asked Brandle if there was anyone she 

“wanted to kill.” Boswell also asked Brandle to describe ways 

someone could torture someone else. When the intercourse 

became uncomfortable and Brandle wanted to stop, Trail told 

her that it would stop if Brandle told Boswell what she wanted 

to hear. Brandle testified that she tried to describe “torture 

techniques” from the “Renaissance era” that she recalled learning about in school.

Brandle suffered an asthma attack and went back to her 

home in Omaha, Nebraska. On the morning of November 
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15, 2017, while Boswell was in the hardware store, Boswell 

texted Brandle that she would be busy for the next couple 

of days.

Brandle testified that she did not see Trail or Boswell again 

until the afternoon of November 17, 2017. Brandle described 

that on November 17, Trail and Boswell seemed quieter and 

more tense than usual. Trail and Boswell picked Brandle up, 

and they went to a hotel casino. Boswell showed Brandle a picture of a young woman whom she identified as her stalker and 

asked Brandle to participate in her murder. Brandle initially 

declined, but she accepted the proposition after Trail made 

various threatening statements.

After participating in arrangements to leave Boswell’s car in 

a store parking lot and taking a cab back to the hotel with the 

idea that they would be using Brandle’s car for the supposed 

murder they were planning, Trail told Brandle she did not 

have to worry about participating anymore, because she had 

already proved her loyalty. Trail and Boswell then convinced 

Brandle to drive them across Nebraska for a supposed drug 

deal. Brandle testified that Trail and Boswell continued to seem 

tense and appeared to have quiet arguments.

Brandle testified that eventually either Trail or Boswell 

suggested they were going to find someone to torture and 

kill, as a way to make money. On November 21, 2017, during 

intercourse at a hotel room, Boswell again asked Brandle to 

talk about how people could be tortured. Brandle talked about 

the same historical torture methods she had the previous time. 

Boswell talked about dismembering people.

On November 22, 2017, Trail and Boswell had Brandle 

drive them to Kearney, Nebraska. Trail and Boswell explained 

they intended to find, as a victim, an exchange student who 

was still around during the Thanksgiving holiday. Their 

thinking, Brandle explained, was that such a victim would 

be unlikely to be immediately missed. The idea was that 

Boswell and Brandle would torture and murder the victim 

while Trail watched. Brandle stated she tried to stay calm and 
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cooperative because she believed that her family would be 

hurt if she did not.

When a law enforcement officer left a voicemail on Brandle’s 

phone and Trail was informed of that fact, they all left Kearney 

without any further action toward attempting to identify a 

potential murder victim. At that point, Trail and Boswell told 

Brandle that a young woman was missing and that Boswell 

was being falsely blamed because she was the last person seen 

with the woman. Boswell cried and insisted she did not hurt 

the missing woman.

Trail and Boswell eventually dropped Brandle off at a hotel 

close to her home after Brandle learned from law enforcement that her mother had filed a missing person report on 

her. Brandle’s mother also informed her that her father was 

gravely ill. Brandle told Trail and Boswell she wanted to 

return home.

(d) Trail’s Testimony

Trail testified in his own defense. He stated at the outset 

that he did not contest 85 percent of the prosecution’s case. 

Trail said that in Trail and Boswell’s apartment, he and the 

women he was involved with could talk about anything, “from 

the mildest to the wildest” and “what you were is what you 

were.” He and Boswell were not going to tell anyone they were 

“wrong about anything.” He acknowledged “there was a lot of 

talk in our house about killing people, torturing people.” Trail 

claimed these were just fantasies.

Trail admitted that much, albeit not all, of his inspiration 

in his discussions of these fantasies came from a book of fiction about witchcraft where the characters torture people for 

power. He did not believe this was true but thought the women 

were interested in the discussions. Other discussions about 

reincarnation and “spiritual” witches and vampires reflected 

his personal beliefs.

Trail claimed that he met Sydney in the spring of 2017 

while she was working at the hardware store and that 
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Boswell met her about a week later. Trail described that 

Sydney and Boswell developed a romantic relationship and 

that Sydney was paid for participation in Trail’s illegal moneymaking schemes. Sydney ended her arrangement with Trail 

in September 2017.

Trail testified that in November 2017, Boswell asked Trail if 

she could reach out to Sydney through the dating app she was 

on. Sydney was upset when Boswell picked her up for their 

first date and Sydney realized who her date was. But Boswell 

convinced Sydney to consider “coming back and being with 

us,” and they arranged a second date. Trail described the items 

purchased on November 15 as intended for the repair and 

cleaning of antiques.

According to Trail, Sydney went to the Wilber apartment on 

the evening of November 15, 2017, to discuss the possibility 

of rejoining the group. During that conversation, Trail asked 

Sydney to either answer or turn off her phone. Sydney turned 

off the phone.

Trail testified that Sydney eventually agreed to experiment 

that night with erotic asphyxiation wherein Trail would hold 

a cord connected to a ligature while Sydney and Boswell 

engaged in sexual intercourse. And during these activities, 

Sydney appeared to have a seizure, stopped breathing, and 

died. Trail said he did not intend to kill Sydney. He explained 

that doing so would be “counter-productive,” because he used 

people for sex and to make money.

Trail testified he did not call an ambulance because he had 

an extensive criminal history and had illegal drugs and stolen 

goods in the apartment. He dismembered Sydney’s body as a 

means of fitting it into a trunk to remove it from their apartment without being noticed. He denied removing Sydney’s 

internal organs. He dumped the trash bags containing Sydney’s 

body in the location where they were eventually discovered by 

law enforcement.

Trail described fleeing with Brandle’s assistance, claiming that looking for an exchange student as a potential victim 
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was simply part of a fantasy they never intended to act upon. 

Likewise, he claimed the prior discussion with Hills about 

killing the woman he met at a store was just a fantasy. In fact, 

Trail claimed he told Hills the woman had moved to California 

“[b]ecause the crazy bitch wanted to kill her.” He said he was 

afraid she would actually do it and wanted to prevent that 

from happening.

5. Courtroom Disruption

The trial lasted approximately 3 weeks. On the third day 

of trial, around 10:30 a.m., after a witness was sworn in but 

before she testified, Trail, seated at the counsel table, yelled, 

“[Boswell] is innocent, and I curse you all.”

Immediately thereafter, Trail made a couple of slashing gestures at his neck. Some blood was visible. Trail had secreted 

a razor blade into the courtroom and had used it to inflict 

wounds to his neck. The jury was immediately cleared from 

the courtroom, and law enforcement and medical personnel 

took over.

The judge told counsel that trial would be reconvened after 

the jury was instructed to “disregard the outburst.” Defense 

counsel moved for a mistrial, arguing the jury would be prejudiced against Trail in determining the aggravator of having 

a history of serious assaultive or terrorizing criminal activity. The court stated it would determine whether a mistrial 

was warranted after individually interviewing the members of 

the jury.

The court instructed the jury “to disregard the outburst that 

you heard this morning and to not consider it in your deliberations at the end of the trial.” Thereafter, each juror was individually questioned by the trial judge in chambers with counsel 

present. The court generally asked each juror if the juror had 

heard the curative instruction and believed he or she could 

remain fair and impartial and follow that instruction. Several 

jurors were asked if the events of the day affected their ability 

to remain a fair and impartial juror.
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Each juror assured the court that he or she could remain 

fair and impartial. The court directed each juror to bring it 

to the court’s attention if the juror later came to the conclusion that the juror could no longer be fair and impartial. None 

ever did.

The court overruled the motion for mistrial.

6. Motion for New Trial

The jury found Trail guilty of first degree murder and of 

conspiracy to commit first degree murder. After the verdict, 

defense counsel moved for a new trial on the grounds that 

Trail was prevented from having a fair trial due to the court’s 

rulings on several issues. However, Trail has only appealed 

the denial of his motion as related to defense counsel’s 

motion for mistrial following Trail’s verbal outburst and act 

of self-harm.

With respect to Trail’s disruption in front of the jury, defense 

counsel argued that, but for a lack of security measures, the 

incident could have been prevented. This negligence, argued 

defense counsel, “contributed to the severity of the event 

and elevated it to the level that required a mistrial.” Defense 

counsel also argued that the act of violence prejudiced the jury 

against Trail inasmuch as it was contrary to the argument that 

Trail was incapable of violence.

While the court’s ruling was pending, the State moved to 

adduce additional evidence that it argued would show Trail’s 

actions were calculated to disrupt the trial. The State asked 

that the evidence be under seal, as it involved law enforcement 

intelligence, courtroom security, and officer safety. Defense 

counsel responded that he did not object and was tentatively 

planning on offering the same or similar evidence as newly 

discovered evidence in support of the motion for new trial. At a 

later date, several exhibits were marked, offered, and received 

under seal.

The court ultimately denied the motion for new trial, observing that Trail had not produced any evidence that the act of 
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self-harm prejudiced him. The court found that the self-harm 

was “a calculating gesture resulting in superficial cuts.”

7. Constitutionality of Panel Findings of 

Sufficiency and Relative Weight of 

Aggravating Circumstances

After the verdict, defense counsel waived Trail’s right to 

a jury for the aggravation sentencing phase. Defense counsel 

then moved to declare Nebraska’s death penalty statutes unconstitutional, in violation of the Sixth and Eighth Amendments to 

the U.S. Constitution and articles 1 through 6 of the Nebraska 

Constitution. Defense counsel asserted that the sentencing panel’s factual findings regarding the relative weight of the aggravating and mitigating circumstances are facts increasing the 

penalty for a crime beyond the prescribed statutory maximum 

and must, therefore, be submitted to a jury. Defense counsel 

also argued that Nebraska is an “outlier” by permitting the 

determination of the death penalty to be made by a judicial 

panel, rather than a jury, and that the “noticeable trend away 

from judicial death sentencing” is strong evidence that society does not regard such a procedure to be proper or humane. 

Finally, according to defense counsel, a determination by a jury 

of the relative weight of the aggravators and mitigators is necessary to satisfy the Eighth Amendment’s heightened reliability 

standards for capital punishment because the consensus of 12 

jurors is less arbitrary and better expresses the conscience of 

the community on the ultimate question of life or death. The 

trial court treated the motion as a motion to quash and ultimately found that it lacked merit and denied it.

8. Sentencing

Pursuant to Neb. Rev. Stat. § 29-2521(2) (Cum. Supp. 2020), 

a sentencing hearing before a three-judge panel was held. The 

panel found the State had proved beyond a reasonable doubt 

the aggravating factor that the murder manifested exceptional 

depravity by ordinary standards of morality and intelligence. 
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This was supported by the fact that Sydney’s murder reflected 

cold, calculated planning beyond the mere premeditation necessary to support a conviction of first degree murder.

The panel also found to be present four out of the five factors 

for a finding of exceptional depravity: (1) apparent relishing of 

the murder by the killer, (2) infliction of gratuitous violence on 

the victim, (3) needless mutilation of the victim, (4) senselessness of the crime, or (5) helplessness of the victim. 2 The panel 

explained that the mutilation of Sydney’s body made it impossible to determine if Trail had inflicted upon Sydney gratuitous 

violence beyond that necessary to inflict death, but all of the 

other four factors were present. First, Trail’s actions before and 

after the murder demonstrated he relished the act, having no 

regard for Sydney’s life beyond his own pleasure. Second, the 

needless mutilation of Sydney’s body demonstrated that Trail 

had a mental state “senselessly bereft of any regard for human 

life.” Third, noting that Sydney posed no threat to Trail and 

Boswell, had no idea she was being led to an encounter with a 

“man twice her size,” and was unable to defend herself or seek 

help at the time of the murder, the panel found that Sydney 

was a helpless victim. For similar reasons, the panel found that 

her murder was completely unnecessary and senseless. Further, 

the panel found that Trail had the capacity to appreciate the 

wrongfulness of his conduct and to conform his conduct to 

the requirements of the law.

The panel found no statutory mitigating factor or circumstances existed. The only statutory mitigating factor alleged by 

Trail was that the “victim was a participant in the defendant’s 

conduct or consented to the act,” as set forth in Neb. Rev. Stat. 

§ 29-2523(2)(f) (Cum. Supp. 2020). The panel found this mitigating circumstance did not exist.

As a nonstatutory mitigating circumstance, the panel recognized Trail’s bad childhood and disadvantaged upbringing. 

His parents left him when he was 2 years old, after which 

2 State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
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time he lived for several years with grandparents who “had a 

poor attitude toward the law.” When his mother later married, 

Trail was adopted by his stepfather, who was abusive. Trail 

spent his teenage years in troubled environments, including 

a juvenile detention facility. He was incarcerated for the first 

time at age 17 and has spent most of his life incarcerated or 

on parole.

In weighing the aggravating circumstance against the existing nonstatutory mitigating factor, the panel found that—given 

the degree of cold, calculated planning; the relishing of the 

murder; and the mutilation of the victim, all demonstrating an 

“extreme depravity in the mind of . . . Trail”—the aggravating 

circumstance was entitled to great weight. The panel found 

the weight of the nonstatutory mitigating circumstance of 

Trail’s bad childhood and disadvantaged upbringing “does not 

approach or exceed the weight of the overwhelming evidence 

supporting the aggravating circumstance of exceptional depravity found in this case.”

Finally, the panel found in its review under Neb. Rev. Stat. 

§ 29-2522(3) (Cum. Supp. 2020) that the sentence of death 

would not be excessive or disproportionate to the penalty 

imposed in similar cases, considering both the crime and the 

defendant. It noted cases such as State v. Torres,

 3 State v. 

Joubert,

 4 State v. Moore, 5 and State v. Williams. 6

For his conviction of first degree murder, the panel sentenced Trail to death. The presiding judge sentenced Trail 

to 2 years’ incarceration for the improper disposal of human 

skeletal remains and to 50 years’ incarceration for conspiracy 

to commit first degree murder, both to run consecutively 

to the murder conviction. Trail, represented by trial counsel, appeals.

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

4 State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).

5 State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).

6 State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
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III. ASSIGNMENTS OF ERROR

Trail assigns that the district court erred in (1) “death 

qualifying” the jury; (2) denying his pretrial motion to sever; 

(3) allowing an identified witness to remain in the courtroom 

during trial, in violation of the court’s own sequestration 

order; (4) denying his motion for mistrial; and (5) denying his 

motion for new trial. He also assigns that the sentencing panel 

erred when balancing the aggravating circumstances against 

the mitigating circumstances and by concluding that his case 

merits death when compared to similar cases. He asserts that 

Nebraska’s death penalty statutory scheme violates the Sixth 

and Eighth Amendments to the U.S. Constitution and articles 

1 through 6 and 1 through 9 of the Nebraska Constitution, 

because it permits judges, not juries, to make the factual findings necessary to impose death sentences.

IV. STANDARD OF REVIEW

[1] A denial of a motion to sever will not be reversed unless 

clear prejudice and an abuse of discretion are shown, and an 

appellate court will find such an abuse only where the denial 

caused the defendant substantial prejudice amounting to a miscarriage of justice. 7

[2] It is for the trial court to determine the extent to which a 

sequestration order will be applied in a given case. 8

[3] An appellate court will not disturb a trial court’s decision whether to grant a motion for mistrial unless the court has 

abused its discretion. 9

[4] In a criminal case, a motion for new trial is addressed 

to the discretion of the trial court, and unless an abuse of 

discretion is shown, the trial court’s determination will not be 

disturbed. 10

7 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

8 State v. Swillie, 218 Neb. 551, 357 N.W.2d 212 (1984).

9 State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).

10 State v. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).
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[5] The constitutionality of a statute presents a question of 

law, which an appellate court independently reviews. 11

[6] 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. 12

V. ANALYSIS

On direct appeal, Trail challenges the denial of his pretrial 

motions to prevent death qualification of the jury and to sever 

the conspiracy and murder charges. He argues that the district 

court erred during trial by releasing the victim’s mother from 

sequestration after she testified and by denying his motion 

for a mistrial based on his verbal outburst and self-harm. He 

asserts that, after trial, the court erred in denying his motion 

for a new trial based on that same incident. Finally, Trail 

asserts the Nebraska death penalty statutes under which he 

was sentenced are unconstitutional. Alternatively, he asserts 

the three-judge panel erred in determining the sentence of 

death was not excessive or disproportionate to the penalty 

imposed in similar cases. We address each of these arguments 

in turn.

1. Death Qualification

Trail argues the district court abused its discretion in informing the venire the death penalty was a potential sentence, 

which led to questioning potential jurors about their ability to 

remain fair and impartial despite their views on the death penalty, which led to removing jurors for cause when they could 

not remain fair and impartial. In other words, he challenges the 

death qualification of the jury.

Trail asserts the exclusion of prospective jurors who were 

opposed to capital punishment subjected him to a trial before 

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

12 State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
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a more “conviction-prone” 13 jury than he would have had 

without death qualification. He does not necessarily take issue 

with the premise that views on capital punishment can interfere 

with certain potential jurors’ ability to perform their duties, but 

claims death qualification is unnecessary in Nebraska because 

jurors do not impose the sentence. He claims the jury can 

remain unbiased without death qualification because “it is possible to keep the issue of the death penalty out of the jurors’ 

minds all together.” 14

While Trail acknowledges Neb. Rev. Stat. § 29-2006(3) 

(Cum. Supp. 2020) states that having opinions “such as to preclude [a juror] from finding the accused guilty of an offense 

punishable with death” is good cause to challenge the juror, 

he describes this as a “relic from a time period in Nebraska 

history during which it was widely known that the penalty for 

murder was a mandatory death sentence.” 15 Trail asserts unnecessary death qualification violates the heightened reliability 

standard applicable to capital cases under the 8th Amendment 

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

Nebraska Constitution; equal protection principles embodied in 

the 14th Amendment to the U.S. Constitution and article I, § 3, 

of the Nebraska Constitution; and the 6th Amendment right to 

a jury trial.

(a) Sixth Amendment

The Sixth Amendment provides in pertinent part: “In all 

criminal prosecutions, the accused shall enjoy the right to a 

speedy and public trial, by an impartial jury of the State and 

district wherein the crime shall have been committed . . . .” 

The 6th Amendment is applicable to the States through the 

14th Amendment.

13 Brief for appellant at 20.

14 Id. at 16.

15 Id. at 17-18.
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[7-9] The Sixth Amendment secures to criminal defendants 

the right to be tried by an impartial jury drawn from sources 

reflecting a fair cross-section of the community. 16 The fair-crosssection venire requirement is not explicit in the text of the Sixth 

Amendment, but is derived from the traditional understanding 

of how an “impartial jury” is assembled. 17 The Constitution 

presupposes that a jury selected from a fair cross-section of the 

community is impartial. 18 The “‘representativeness’” constitutionally required at the venire stage can be disrupted at the jurypanel stage to serve a State’s “‘legitimate interest.’” 19

The U.S. Supreme Court has produced a body of case law 

under the Sixth Amendment holding the State has a legitimate 

interest in death qualifying juries that are directly involved in 

capital sentencing. It has not addressed death qualification outside of that context.

The Court has expressly declined to conclude, as a matter of 

judicial notice or on the records presented to it, that, in the conviction phase of trial, the exclusion of jurors opposed to capital 

punishment results in an unrepresentative jury on the issue of 

guilt or substantially increases the risk of conviction. 20 Even 

assuming without deciding death qualification “‘slants’” 21 the 

jury in favor of conviction, the Court has repeatedly held it 

serves a proper purpose to exclude jurors whose views on capital punishment interfere with their ability to obey their oath 

during the sentencing phase of trial. 22

16 Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249 

(2010).

17 Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 

(1990).

18 Lockhart v. McCree, supra note 1.

19 Holland v. Illinois, supra note 17, 493 U.S. at 483.

20 Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 

(1968).

21 Lockhart v. McCree, supra note 1, 476 U.S. at 179.

22 See Lockhart v. McCree, supra note 1.
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The Court has explained there must be a balance between 

the interests of the defendant and of the State in a capital case. 

While a criminal defendant has the right to an impartial jury 

drawn from a venire that has not been “tilted” 23 in favor of 

capital punishment by selective prosecutorial challenges for 

cause, the State has a strong interest in having jurors who are 

able to apply capital punishment within the framework state 

law prescribes. To balance these interests, a juror who is substantially impaired in the ability to impose the death penalty 

can be excused by the State for cause while a juror who is not 

thereby substantially impaired cannot be excused for cause. 24

Similarly, a juror who is substantially impaired in the ability to 

choose life imprisonment can be excused by the defendant for 

cause, while a juror who is in favor of the death penalty but 

who is not thereby substantially impaired cannot be excused 

for cause. 25

[10] In order to meaningfully effectuate these constitutional 

protections, there must be an adequate voir dire. 26 The U.S. 

Supreme Court has held that in a capital case where the jury 

is directly involved in sentencing, this entails the opportunity 

to inquire into whether views on the death penalty would disqualify prospective jurors from sitting. 27 General questions 

as to prospective jurors’ ability to remain fair and impartial 

and to follow the law are inadequate substitutes for more specific questions, when requested, as to whether the jurors are 

“unalterably in favor of, or opposed to, the death penalty in 

every case.” 28

23 Uttecht v. Brown, 551 U.S. 1, 9, 127 S. Ct. 2218, 167 L. Ed. 2d 1014 

(2007).

24 Id.

25 See, Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 

(1992); Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 

(1988).

26 See id. See, also, Lockhart v. McCree, supra note 1.

27 See Morgan v. Illinois, supra note 25.

28 Id., 504 U.S. at 735.
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In Lockhart v. McCree,

 29 the Supreme Court held that even 

though death qualification is more directly pertinent to the 

penalty phase, it did not violate the Sixth Amendment to death 

qualify a jury before the guilt phase of a capital trial. The 

Court said in Witherspoon v. Illinois 30 that the State “crossed 

the line of neutrality” by systematically excluding for cause 

members of the venire who had general scruples against capital 

punishment but who could nevertheless obey their oaths 31 and 

said that culling all jurors “who harbor doubts about the wisdom of capital punishment,” but who were nevertheless capable of obeying their oath, produces a jury that does not “speak 

for the community” and is “uncommonly willing to condemn 

a man to die.” 32 The Court in McCree pointed out its statements in Witherspoon were in the context of a system where 

the jury had considerable discretion at sentencing. Regardless, 

McCree explained a narrower elimination for cause of jurors 

who are unable to apply the law to the facts because of their 

beliefs on capital punishment does not similarly cross the line 

of neutrality. 33

[11,12] Even assuming for purposes of its opinion that deathqualified juries are “somewhat more ‘conviction-prone,’” 34 the 

Court in McCree explained that “groups defined solely in terms 

of shared attitudes that would prevent or substantially impair 

members of the group from performing one of their duties as 

jurors . . . are not ‘distinctive groups’ for fair-cross-section 

29 Lockhart v. McCree, supra note 1.

30 Witherspoon v. Illinois, supra note 20.

31 Id., 391 U.S. at 520. See Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 

L. Ed. 2d 581 (1980). See, also, Gray v. Mississippi, 481 U.S. 648, 107 S. 

Ct. 2045, 95 L. Ed. 2d 622 (1987); Wainwright v. Witt, 469 U.S. 412, 105 

S. Ct. 844, 83 L. Ed. 2d 841 (1985).

32 Id., 391 U.S. at 520, 521. See, also, Adams v. Texas, supra note 31; Gray 

v. Mississippi, supra note 31; Wainwright v. Witt, supra note 31.

33 Lockhart v. McCree, supra note 1.

34 Id., 476 U.S. at 173.
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purposes.” 35 In order to establish a prima facie violation of the 

fair-cross-section requirement under the Sixth Amendment, a 

defendant must show (1) that the group alleged to be excluded 

is a “distinctive” group in the community, (2) that the representation of this group in venires from which juries are selected 

is not fair and reasonable in relation to the number of such 

persons in the community, and (3) that this underrepresentation 

is due to systematic exclusion of the group in the jury selection process. 36

[13,14] The Court reiterated an impartial jury is “nothing 

more than jurors who will conscientiously apply the law and 

find the facts.” 37 “[I]t is simply not possible to define jury 

impartiality, for constitutional purposes, by reference to some 

hypothetical mix of individual viewpoints.” 38 Also, the Court 

noted the same allegedly conviction-prone individuals could 

end up on the defendant’s jury through “‘luck of the draw.’” 

It did not “understand the logic of the argument that a given 

jury is unconstitutionally partial when it results from a stateordained process, yet impartial when exactly the same jury 

results from mere chance.” 39 Beliefs with respect to the death 

penalty, said the Court, are within the individual’s control. 

Death qualification does not create an appearance of unfairness, as it only results in the removal for cause of those jurors 

who are unwilling “to temporarily set aside their own beliefs in 

deference to the rule of law.” 40

Death qualification before the guilt phase, said the Court, 

serves a legitimate state interest in obtaining a single jury 

35 Id., 476 U.S. at 174.

36 Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).

37 Lockhart v. McCree, supra note 1, 476 U.S. at 178 (internal quotation 

marks omitted).

38 Id., 476 U.S. at 183.

39 Id., 476 U.S. at 178.

40 Id.
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that can properly and impartially apply the law to the facts 

of the case at both the guilt and sentencing phases of a 

capital trial. 41 Given that much of the same evidence would 

be presented at both phases of the capital trial, it served 

the interests both of the prosecution and of the defense to 

avoid the burden of having to present the evidence and testimony twice. 42 This is balanced against the fact that there is 

less concern during the conviction stage of the effect of an 

imbalanced jury. The Court explained, “[J]ury discretion is 

more channeled” in its more traditional role of finding the 

facts and determining the guilt or innocence of a criminal 

defendant. 43

In Buchanan v. Kentucky,

 44 the Court extended its rationale 

from McCree to hold that the constitutional rights of a noncapital defendant were not violated by death qualification of 

the jury before the guilt phase of a joint trial with a capital 

codefendant. The Court said the state has a significant interest 

in having a joint trial of defendants when the crimes charged 

arise out of one chain of events. The joint trial may benefit 

the noncapital defendant as well. 45 In joint trials, the “jury 

obtains a more complete view of all the acts underlying the 

charges than would be possible in separate trials” and “may 

be able to arrive more reliably at its conclusions regarding 

the guilt or innocence of a particular defendant and to assign 

fairly the respective responsibilities of each defendant in the 

sentencing.” 46 Furthermore, the State has a genuine interest in 

avoiding the burden of presenting the same evidence to different 

41 See Lockhart v. McCree, supra note 1.

42 See id.

43 Id., 476 U.S. at 183.

44 Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336 

(1987).

45 See id.

46 Id., 483 U.S. at 418.
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juries for different defendants charged with crimes arising from 

the same events. 47

The Court said in Buchanan that these interests in a joint 

trial, combined with the interest discussed in McCree in 

having the same jury for the guilt and penalty phases of a 

capital defendant’s trial, “argue[] strongly in favor of permitting ‘death qualification’ of the jury.” 48 It also reiterated that 

any concern about the possible effect of an allegedly imbalanced jury was not present because of the limited nature of 

the jury’s discretion in the trial, which was generally more 

“channeled than at a capital-sentencing proceeding.” 49 At sentencing, under the statutory scheme at issue in Buchanan, the 

jury’s sentence was limited to specific statutory sentences and 

subject to review by the judge. In light of the presupposition in 

Buchanan that jury members selected from a fair cross-section 

of the community are impartial so long as they can properly 

carry out their duties, as well as the State’s significant interests 

in the joint trial, the Court held there was no violation of the 

noncapital defendant’s 6th and 14th Amendments right to an 

impartial jury.

Trail correctly points out that a panel of judges, rather than 

the jury, decides the defendant’s punishment in capital cases 

in Nebraska. 50 This has long been true. Accordingly, we have 

acknowledged the death-qualification case law of the U.S. 

Supreme Court is factually distinguishable; the juries in those 

cases ultimately determined the sentence. 51 Nonetheless, we 

have not been persuaded that this factual distinction is determinative of Sixth Amendment challenges in capital cases in 

Nebraska where juries have decided if any of the alleged 

47 Id.

48 Id., 483 U.S. at 419-20.

49 Id., 483 U.S. at 420.

50 See 1973 Neb. Laws, L.B. 268.

51 See, State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987); State v. 

Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).
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aggravating circumstances were proved beyond a reasonable 

doubt. 52 In this context, we have specifically rejected the 

argument that it is unconstitutional to death qualify juries in 

capital cases in Nebraska because those juries do not ultimately 

decide if the sentence shall be life or death. 53 Instead, we have 

repeatedly held under the Sixth Amendment that it is permissible to determine during voir dire whether jurors’ views on 

capital punishment would prevent or substantially impair their 

ability to impartially apply the law to the evidence—and to 

exclude them for that reason. 54

Our case law on death qualification has not explicitly 

addressed the argument raised by Trail in this appeal that the 

State lacks a legitimate interest in death qualifying the venire 

because it can ensure jurors’ beliefs will not interfere with 

their duties by never telling them they are sitting in a capital 

case. This novel argument does not cause us to question our 

prior holdings.

We cannot, as Trail implicitly suggests, presume potential 

jurors come to the jury pool ignorant of the law. To the contrary, jurors, as citizens of this state, are presumably aware the 

law provides for the death penalty as a possible punishment 

for murder under certain circumstances. And the circumstances 

making the death penalty a legal possibility are likely to 

become apparent during the course of the State’s presentation 

of the evidence at trial. While the jurors will not know with 

certainty whether the State has in fact alleged an aggravator in 

any given case, they will not have the level of ignorance Trail 

believes possible.

52 See id. See, also, State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002); 

State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990); State v. Hankins, 

232 Neb. 608, 441 N.W.2d 854 (1989); State v. El-Tabech, 225 Neb. 395, 

405 N.W.2d 585 (1987); State v. Peery, 223 Neb. 556, 391 N.W.2d 566 

(1986); State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986); State v. 

Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984); State v. Williams, supra 

note 6.

53 Id.

54 See id.
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[15] Even if the jurors could be sufficiently ignorant of the 

capital implications of a conviction at the guilt phase of trial, 

once they are asked to determine if the State has proved an 

aggravating circumstance beyond a reasonable doubt, any juror 

knowledgeable of the law will understand it is a capital case. 

And just as the U.S. Supreme Court has described the State’s 

interest in having the same jury for the guilt and sentencing 

phases and jointly trying a capital defendant and a noncapital 

defendant in charges arising out of the same events, the State 

has an interest in having the same jury determine both the 

defendant’s guilt or innocence and the alleged aggravating 

circumstances that, if found, will permit a three-judge panel 

to impose the death penalty. The State has a legitimate interest in avoiding the burden of presenting the same evidence to 

different juries for the guilt phase and the aggravation phase 

of trial. Thus, the State has an interest in determining at voir 

dire whether any jurors will be unable to perform their duties 

at the aggravation phase of the trial. In other words, the State 

has a legitimate interest in death qualifying juries in capital 

cases in Nebraska.

There is a presupposition that a jury selected from a fair 

cross-section of the community is impartial despite a mix of 

viewpoints. Groups defined by belief systems that substantially impair persons from performing their duties as jurors are 

not distinctive groups for fair-cross-section purposes. Even if 

we assume the result of death qualification is a slightly more 

conviction-prone jury, the State has a legitimate interest in 

eliminating from the venire those jurors who cannot carry out 

their duties because of their views. When the death penalty 

cannot be imposed before the jury decides if an aggravating 

circumstance exists, then the State has a reason to question 

whether views on the death penalty will interfere with that 

task, and to question the venire accordingly. Moreover, jurors’ 

discretion is much more channeled during the guilt and aggravation stages of trial than at the ultimate sentencing hearing by 

the three-judge panel.
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[16] We hold that the State does not violate the Sixth 

Amendment right to an impartial jury by death qualifying the 

jury before a trial wherein it has alleged an aggravator that, 

if found by the jury, will make the defendant eligible for the 

death penalty. Although Trail ultimately waived his right to a 

jury determination of the alleged aggravator, he did so only 

after the verdict and after the district court rejected his challenges to death qualification.

(b) Equal Protection

[17] We also disagree with Trail’s argument that death qualification in Nebraska violates equal protection. The Nebraska 

Constitution and the U.S. Constitution have identical requirements for equal protection challenges. 55 The Equal Protection 

Clause of the 14th Amendment, § 1, mandates that no state 

shall “deny to any person within its jurisdiction the equal 

protection of the laws.” This clause does not forbid classifications; it simply keeps governmental decisionmakers from 

treating differently persons who are in all relevant aspects 

alike. 56 When a classification created by state action does not 

jeopardize the exercise of a fundamental right or categorize 

because of an inherently suspect characteristic, the Equal 

Protection Clause requires only that the classification rationally further a legitimate state interest. 57 In equal protection 

challenges, the burden is on a defendant to “‘prove the existence of purposeful discrimination.’” 58

Trail asserts death qualification creates a classification 

between capital defendants and noncapital defendants when 

it subjects capital defendants to allegedly conviction-prone 

55 Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 

N.W.2d 742 (2007).

56 Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013).

57 Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., supra note 55.

58 Batson v. Kentucky, 476 U.S. 79, 93, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986).
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juries that noncapital defendants do not have. He asserts that 

because jurors can be kept in ignorance of the capital implications of their factfinding, such classification does not rationally further a legitimate state interest. Trail has not proved 

purposeful discrimination.

We have already rejected Trail’s argument that the jury 

can effectively be suspended in ignorance of the possibility 

of the death penalty. And we note that in McCree, the U.S. 

Supreme Court implicitly disagreed with the idea that the 

death qualification of a jury is subject to heightened scrutiny. 59

The Court explicitly distinguished the exclusion of jurors who 

have decided that their personal views would not allow them 

to impose the death penalty from prior cases finding unconstitutional the wholesale exclusion of individuals of a particular 

skin color, ethnic heritage, or gender.

As discussed, the State is entitled to a jury that is capable 

of performing its duties. Excluding prospective jurors based 

on voluntary belief systems that render them unable to perform their duties does not create an appearance of unfairness. 

For purposes of inquiry into views on capital punishment, 

capital cases and noncapital cases are different. Views on 

capital punishment are relevant to the ability of jurors to obey 

their oaths in capital cases. We find no merit to Trail’s argument that death qualification of the jury violated his rights to 

equal protection.

(c) Heightened Reliability Under Eighth Amendment 

to U.S. Constitution and Article I, §§ 9 and 15, 

of Nebraska Constitution

Trail makes one conclusory statement that death qualification violates the heightened reliability required by the Eighth 

Amendment to the U.S. Constitution and article I, §§ 9 and 

15, of the Nebraska Constitution. Conclusory assertions unsupported by coherent analytical argument fail to satisfy the 

59 See Lockhart v. McCree, supra note 1.
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requirement of arguing an assigned error to obtain consideration by an appellate court. 60

[18] In the absence of analytical support, we hold the 

Eighth Amendment and article I, §§ 9 and 15, of the Nebraska 

Constitution are not violated by death qualification in a 

capital case. We note the U.S. Supreme Court’s opinion in 

Witherspoon, which, as discussed, set constitutional limits on 

excusing jurors for cause because of their beliefs on capital 

punishment, was based in the Sixth Amendment and nowhere 

implied the Eighth Amendment is implicated. 61 The Eighth 

Amendment states: “Excessive bail shall not be required, 

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The 14th Amendment applies those restrictions to the States. 62 Under article I, § 9, of the Nebraska 

Constitution:

All persons shall be bailable by sufficient sureties, 

except for treason, sexual offenses involving penetration 

by force or against the will of the victim, and murder, 

where the proof is evident or the presumption great. 

Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishment inflicted.

Article I, § 15, states all penalties shall be proportioned to 

the nature of the offense. Under the Eighth Amendment, “the 

qualitative difference of death from all other punishments 

requires a correspondingly greater degree of scrutiny of the 

capital sentencing determination.” 63 None of these provisions 

are violated by the process of death qualifying the jury so that 

the members of the venire are capable of performing their 

duties despite their personal views on capital punishment.

60 See State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).

61 See Witherspoon v. Illinois, supra note 20.

62 Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014).

63 Calwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 86 L. Ed. 2d 

231 (1985) (internal quotation marks omitted).
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(d) § 29-2006(3) Applicable Only 

to Capital Indictments

In the course of arguing the district court erred in death 

qualifying the jury, Trail asserts that § 29-2006(3) is inapplicable because, on the information alone, he was not eligible for 

the death penalty. Section 29-2006(3) states:

The following shall be good causes for challenge to 

any person called as a juror or alternate juror, on the trial 

of any indictment: . . . (3) in indictments for an offense 

the punishment whereof is capital, that his opinions are 

such as to preclude him from finding the accused guilty 

of an offense punishable with death . . . .

According to Trail, this is not a trial, described by § 29-2006(3), 

“in indictments for an offense the punishment whereof is capital” because the death penalty was only a sentencing option 

upon the State’s noticing and proving, after the merits phase, 

additional facts at an aggravation hearing.

But Trail does not appeal the district court’s excusal of any 

potential juror for cause under § 29-2006(3), and the State’s 

interest in and constitutionality of death qualification does not 

depend upon a statutory provision. Therefore, we need not 

address Trail’s unique view that he was not charged with “an 

offense the punishment whereof is capital” for purposes of 

§ 29-2006(3) because the matters making him death eligible 

were determined after the merits phase of the trial. Regardless 

of whether that was the case, Trail was given timely notice 

in the information that the State was planning on proving an 

aggravating circumstance and the district court did not err in 

death qualifying the jury for Trail’s trial.

2. Motion to Sever Murder 

and Conspiracy Charges

Having found no merit to Trail’s challenges to death qualification of the jury, we turn to his assignment that the court erred 

by refusing to sever the trials on the charges for first degree 

murder and conspiracy to commit first degree murder.
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[19,20] There is no constitutional right to a separate trial. 64

Instead, the joinder or separation of charges for trial is governed by § 29-2002, which states, in relevant part:

(1) Two or more offenses may be charged in the same 

indictment, information, or complaint in a separate count 

for each offense if the offenses charged, whether felonies 

or misdemeanors, or both, are of the same or similar 

character or are based on the same act or transaction or 

on two or more acts or transactions connected together or 

constituting parts of a common scheme or plan.

. . . .

(3) If it appears that a defendant or the state would 

be prejudiced by a joinder of offenses in an indictment, 

information, or complaint . . . the court may order an 

election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, 

or provide whatever other relief justice requires.

In summary, whether offenses were properly joined involves a 

two-stage analysis: (1) whether the offenses were sufficiently 

related to be joinable and (2) whether the joinder was prejudicial to the defendant. 65 There is a strong presumption against 

severing properly joined counts. 66

[21-23] Trail does not contest that the offenses were sufficiently related to be joinable, but, rather, he asserts the joinder was prejudicial. A denial of a motion to sever will not be 

reversed unless clear prejudice and an abuse of discretion are 

shown, and an appellate court will find such an abuse only 

where the denial caused the defendant substantial prejudice 

amounting to a miscarriage of justice. 67 A defendant appealing 

the denial of a motion to sever has the burden to show compelling, specific, and actual prejudice. 68 Severe prejudice occurs 

64 State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).

65 Id.

66 Id.

67 State v. Henry, supra note 7.

68 State v. Benson, supra note 64.
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when a defendant is deprived of an appreciable chance for an 

acquittal, a chance that the defendant would have had in a severed trial. 69 Prejudice from joinder cannot be shown if evidence 

of one charge would have been admissible in a separate trial of 

another charge. 70

Trail argues he was prejudiced by the joinder because “it 

is likely that all the evidence that might have been admissible 

in a trial of either [the murder count or the conspiracy count] 

tried separately would not have been admissible if Count 

I, Murder in the First Degree were tried separately.” 71 Trail 

does not point out which specific statements were entered 

into evidence by virtue of the joinder, which would have been 

inadmissible otherwise. Rather, he generally asserts the State 

was allowed to introduce hearsay evidence to establish a conspiracy, lifting the conspiracy “‘by its own bootstraps,’” 72 then 

utilizing that conspiracy evidence to get a conviction on the 

murder charge.

Such arguments fall far short of showing compelling, specific, and actual prejudice. Most fundamentally, however, there 

is no merit to Trail’s assumption that different hearsay rules 

apply to proof of a conspiracy in a trial on a conspiracy charge 

versus proof of a conspiracy in a trial on a murder charge.

[24-26] In State v. Hudson,

 73 we specifically held that 

the coconspirator exception to the hearsay rule is applicable 

regardless of whether a conspiracy has been charged in the 

information. Under Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 

2016), a statement is not hearsay if it is “a statement by a 

coconspirator of a party during the course and in furtherance 

of the conspiracy.” Under the coconspirator exception to the 

hearsay rule, the declarant conspirator who partners with others in the commission of a crime is considered the agent of 

69 Id.

70 Id.

71 Brief for appellant at 23.

72 Id.

73 State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).
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his or her fellow conspirators, and the commonality of interests gives some assurance that the statements are reliable. 74

Whether or not a conspiracy has been charged in the information, before the trier of fact may consider testimony under the 

coconspirator exception to the hearsay rule, a prima facie case 

establishing the existence of the conspiracy must be shown by 

independent evidence, to prevent the danger of hearsay evidence being lifted by its own bootstraps. 75

Our review of the record demonstrates the district court 

was aware of Trail’s concerns and insisted the State establish 

by independent evidence a prima facie case of the conspiracy 

before it admitted Boswell’s out-of-court statements. We find 

no merit to this assignment of error.

3. Sequestration

Trail next argues the district court erred in allowing 

Sydney’s mother to remain in the courtroom “in violation 

of its own sequestration order.” 76 Trail elaborates that under 

Neb. Rev. Stat. § 27-615 (Reissue 2016), he had a right to 

have the witnesses excluded so that they could not hear the 

testimony of other witnesses. Trail does not explain how he 

was prejudiced by the district court’s ruling other than generally noting Sydney’s mother “remained in the front of the 

courtroom for the majority of the balance of the trial within 

sight of the jury and was able to hear the testimony of all the 

other witnesses.” 77

[27,28] Section 27-615 provides, with certain exceptions 

not here applicable that “[a]t the request of a party the 

judge shall order witnesses excluded so that they cannot hear 

the testimony of other witnesses . . . .” However, we have 

long held that the exclusion or sequestration of a witness is 

74 State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).

75 See State v. Estrada Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).

76 Brief for appellant at 25.

77 Id. at 26.
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within the discretion of the trial court. 78 It is for the trial 

court to determine the extent to which a sequestration order 

will be applied in a given case. 79 Sequestration is based on 

the belief that not hearing other witnesses’ testimony tends to 

better elicit the truth and promote the ends of justice, but this 

reasoning generally applies only to unexamined witnesses. 80

Thus, generally speaking, a request for sequestration of witnesses is a request that they be excluded from the courtroom until called to testify. 81 The denial of a sequestration 

motion will not be overturned absent evidence of prejudice to 

the defendant. 82

The district court did not abuse its discretion in allowing Sydney’s mother to remain in the courtroom after she 

testified and after the court released her from sequestration. 

Furthermore, Trail has failed to demonstrate he was prejudiced 

by her presence. While the defense was given the opportunity 

to recall Sydney’s mother in order to reopen cross-examination, 

it did not elect to do so. The fact that the mother of a murder victim was present in the courtroom in view of the jury 

during trial does not in itself demonstrate prejudice to the 

defendant.

4. Courtroom Disruption

Trail argues that his outburst at trial—“curse you all” and 

cutting his neck with a razor blade—was of such a nature that 

its damaging effect could not be removed by admonition or 

instruction and that the court should have granted his motion 

for a mistrial. Even if an admonition or instruction could 

have otherwise removed the prejudice, according to Trail, 

the court’s procedure of first ordering the jurors to disregard 

78 State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999).

79 State v. Swillie, supra note 8.

80 See State ex rel. NSBA v. Miller, supra note 78.

81 State v. Hess, 225 Neb. 91, 402 N.W.2d 866 (1987).

82 State ex rel. NSBA v. Miller, supra note 78.
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the outburst and then asking them if they could follow the 

court’s instruction was insufficient because it put the jurors in 

a difficult position of stating they could not follow the court’s 

order. Similarly, Trail argues his motion for a new trial should 

have been granted because of his disruption. Trail suggests 

the additional evidence submitted in support of the motion for 

new trial, entered under seal, showed the self-harm was due to 

“misconduct of agents of the prosecuting attorney,” 83 because 

it would not have occurred had jail staff implemented extra 

security measures warranted by specific knowledge. We hold 

the district court did not err in denying Trail’s motions for a 

mistrial and for a new trial.

[29-31] A mistrial is properly granted in a criminal case 

where an event occurs during the course of trial which is of 

such a nature that its damaging effect cannot be removed by 

proper admonition or instruction to the jury and thus prevents a fair trial. 84 A defendant faces a higher threshold than 

merely showing a possibility of prejudice when attempting to 

prove error predicated on the failure to grant a mistrial. 85 The 

defendant must prove that the alleged error actually prejudiced 

him or her, rather than creating only the possibility of prejudice. 86 Absent evidence to the contrary, the legal system presumes that jurors, to the extent they are able, will comply with 

curative instructions and judicial admonitions. 87

[32,33] A motion for a new trial is a statutory remedy and 

can be granted by a court of law only upon the grounds, or 

83 Brief for appellant at 36.

84 State v. Figures, supra note 9.

85 State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).

86 State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).

87 See, David F. Herr & Roger S. Haydock, Motion Practice § 21.04 (8th ed. 

2021) (discussing curative instructions); David Paul Nicoli, Federal Rules 

of Criminal Procedure 23(b) and 24(c): A Proposal to Reduce Mistrials 

Due to Incapacitated Jurors, 31 Am. U.L. Rev. 651 (1982). See, also, U.S. 

v. Dunlap, 28 F.3d 823 (8th Cir. 1994).
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some of them, provided for by the statutes. 88 The grounds on 

which a trial court may order a new trial after a criminal conviction has been entered are specified in Neb. Rev. Stat. § 29-2101 

(Reissue 2016). The asserted ground for a new trial must affect 

adversely the substantial rights of the defendant, and it must be 

shown that the defendant was prejudiced thereby. 89

[34-36] A trial court is vested with considerable discretion in passing on motions for mistrial and new trial, 90 and an 

appellate court will not disturb a trial court’s decision whether 

to grant a motion for mistrial or a motion for new trial unless 

the court has abused its discretion. 91 It is an abuse of discretion to make an error of law or clear errors of factual determination. 92 Our deference to the trial court stems in part from 

the recognition that the trial judge is better situated than a 

reviewing court to pass on questions of witness credibility and 

the surrounding circumstances and atmosphere of the trial. 93

The trial judge has a special perspective on the relationship 

between the evidence and the verdict which cannot be recreated by a reviewing court from the printed record. 94 The trial 

court is likewise in a better position to make credibility determinations of jurors’ statements concerning whether they were 

influenced by extraneous information. 95

88 See Greenberg v. Fireman’s Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772 

(1949). See, also, State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).

89 State v. Tainter, 218 Neb. 855, 359 N.W.2d 795 (1984).

90 See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). See, also, 

State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021); State v. Grant, 

supra note 85.

91 See, State v. Figures, supra note 9; State v. Bartel, supra note 88.

92 See, U.S. v. McDaniel, 398 F.3d 540 (6th Cir. 2005); U.S. v. Petrie, 302 

F.3d 1280 (11th Cir. 2002).

93 Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).

94 See id.

95 See Scherz v. Platte Valley Public Power and Irrigation District, 151 Neb. 

415, 37 N.W.2d 721 (1949). See, also, State v. Jenkins, supra note 11.
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[37] The district court, after considering all the evidence 

submitted by the parties at the hearing on the motion for new 

trial, found Trail’s act of self-harm was “a calculating gesture,” 

and we will not disturb this finding on appeal. As a general 

matter, a defendant is not permitted to profit from the defend

ant’s own bad conduct by disrupting courtroom proceedings 

and then urging disruption as a ground for mistrial. 96 “To hold 

otherwise would provide a criminal defendant with a convenient device for provoking a mistrial whenever he chose to 

do so, either inside or outside the courtroom.” 97 As the U.S. 

Supreme Court has explained in the context of the right to be 

present at trial, an accused cannot be permitted through disruptive conduct to indefinitely avoid being tried. 98 “It would 

degrade our country and our judicial system to permit our 

courts to be bullied, insulted, and humiliated and their orderly 

progress thwarted and obstructed by defendants brought before 

them charged with crimes.” 99

In accordance with these principles, in State v. Grant,

 100

we held the trial court did not err in denying the defendant’s 

96 See, United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963); Hayes v. 

State, 340 So. 2d 1142 (Ala. Crim. App. 1976); People v. Dunn, 141 Cal. 

Rptr. 3d 193, 205 Cal. App. 4th 1086 (2012); Hammond v. United States, 

345 A.2d 140 (D.C. 1975); State v. Ganal, 81 Haw. 358, 917 P.2d 370 

(1996); State v. Doyle, 335 So. 3d 393 (La. App. 2021); State v. Eaton, 

563 S.W.3d 841 (Mo. App. 2018); State v. Grant, supra note 85; People 

v. Mabre, 166 A.D.2d 339, 561 N.Y.S.2d 10 (1990); State v. Joiner, 237 

N.C. App. 513, 767 S.E.2d 557 (2014); State v. Linkous, 177 W. Va. 621, 

355 S.E.2d 410 (1987). See, also, generally, Annot., 89 A.L.R.3d 960 

(1979 & Supp. 2022). But see, e.g., People v. Blunt, 273 A.D.2d 146, 709 

N.Y.S.2d 560 (2000) (defendant’s orations containing inadmissible and 

highly prejudicial factual assertions were too extensive and damaging to 

be dealt with through curative instructions and jury inquiries).

97 Hammond v. United States, supra note 96, 345 A.2d at 141.

98 Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).

99 Id., 397 U.S. at 346.

100 State v. Grant, supra note 85.
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motion for a mistrial based on his conduct during trial of suddenly standing up and punching his counsel in the head, after 

which a scuffle with law enforcement ensued to restrain him. 

The defendant was subsequently found guilty of first degree 

murder and use of a deadly weapon to commit a felony. The 

court admonished the jury members and asked them to notify 

the court if they could no longer be fair and impartial. None 

did. While it appeared the altercation upset at least one member of the jury, we pointed out the reactions at issue would 

not have occurred without the defendant’s own outburst. 101

We would not “permit a defendant to benefit from his or her 

own bad behavior during trial.” 102 We also found that because 

the jury members were admonished and indicated they could 

remain fair and impartial, the defendant had failed to demonstrate prejudice. We reached a similar conclusion for similar 

reasons in State v. Blackwell,

 103 affirming the court’s denial of 

a motion for new trial based on the defendant’s yelling at witnesses during their testimony.

When the trial court has endeavored to promptly ameliorate 

any prejudicial effect, even frequent offensive and violent outbursts by defendants will not ordinarily require a mistrial or a 

new trial. 104 In United States v. Bentvena,

 105 a series of “dramatic disturbances” by several defendants did not warrant a 

mistrial when the prosecution had done nothing to provoke the 

incidents and the judge did all in his power to minimize their 

effect. To hold otherwise, explained the court, “would produce 

little less than anarchy.” 106

[38] Neither are disruptive acts of the defendant irremediable simply because they reflect some attribute consistent 

101 See id.

102 Id. at 194, 876 N.W.2d at 664.

103 State v. Blackwell, 184 Neb. 121, 165 N.W.2d 730 (1969).

104 See, e.g., United States v. Bentvena, supra note 96.

105 Id. at 930.

106 Id. at 931.
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with the charged crime. For example, in People v. White,

 107

a defendant on trial for escape was not entitled to a mistrial 

after the jury saw him flee the courtroom when the State’s 

last witness took the stand. The court found the defendant’s 

“‘contumacious’” behavior should not entitle him to a mistrial 

absent “irremedial prejudice.” 108 And it found that the trial 

court’s actions in promptly escorting the jury members from 

the courtroom and admonishing them to keep an open mind 

adequately minimized the likelihood of prejudice. 109

As with these other defendants, we will not permit Trail 

to benefit from his own bad behavior during trial. The court 

described that, after yelling, “[Boswell] is innocent, and I curse 

you all,” Trail made some slashing gestures at his neck and 

some blood was visible. While dramatic, the incident was not 

of such a nature to create irremediable prejudice.

We find no merit to Trail’s assertion that the violent disruption was irremediably prejudicial because he could not 

thereafter argue to the jury he was incapable of violence and, 

thus, innocent. The same could be said of any violent outburst 

during the trial on charges of any violent crime. Moreover, it is 

apparent it was never defense counsel’s strategy to argue Trail 

was nonviolent, arguing instead that Trail had unintentionally 

killed Sydney while engaged in sadomasochistic consensual 

asphyxiation. Similarly, Trail’s statement about cursing “you 

all” was not irremediably prejudicial because Sydney’s murder 

was allegedly connected to witchcraft. And even assuming 

Trail’s outburst was construed by jurors as a call to the supernatural rather than a more mundane expression of outrage, 

such beliefs were cumulative of Trail’s own testimony that he 

believed in spiritual witches.

The trial court endeavored to promptly ameliorate any prejudicial effect by clearing the jury from the courtroom and 

107People v. White, 199 A.D.2d 558, 606 N.Y.S.2d 49 (1993).

108 Id. at 559, 606 N.Y.S.2d at 50.

109 See id.
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instructing it “to disregard the outburst that you heard this 

morning and to not consider it in your deliberations at the end 

of the trial.” After interviewing each of the jurors individually, 

the district court found they were able to follow the curative instruction to disregard the outburst and remain fair and 

impartial in their deliberations. We disagree with Trail’s assertion that the court’s procedure of giving the curative instruction before individually interviewing the jurors pressured the 

jurors into falsely proclaiming they could follow the court’s 

instruction. We will not second-guess the court’s evaluation of 

the credibility of the jurors’ assurances that they could remain 

fair and impartial. The disruption was not so damaging that 

a reasonable juror would be incapable of following curative 

instructions or of knowing his or her own capacity to remain 

impartial. The court did not err in finding that Trail did not suffer actual prejudice.

Trail’s arguments pertaining to jail staff’s negligence are 

irrelevant to our analysis, and we therefore do not determine 

the extent of such negligence, if any. Whatever security meas

ures jail staff could have taken to prevent Trail from secreting the razor blade into the courtroom, Trail’s responsibility 

for intentionally disrupting the trial would remain the same. 

Whether or not jail staff should have done more to prevent it, 

Trail should not benefit from this “calculating gesture.”

The district court did not abuse its discretion in denying 

Trail’s motions for a mistrial and a new trial. We turn to Trail’s 

assignments of error relating to sentencing.

5. Constitutionality of Findings of Whether 

Aggravating Circumstances Justify Death 

Penalty and Relative Weight of 

Aggravating and Mitigating Circumstances 

Being Made by Judges Rather Than Jury

Trail assigns the district court erred in sentencing him to 

death because Nebraska’s death penalty scheme is unconstitutional. He argues that because a panel of judges rather than 
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a jury makes findings of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight 

given to the aggravating circumstances, Nebraska’s death 

penalty scheme violates article I, §§ 6 and 9, of the Nebraska 

Constitution and the 6th and 8th Amendments to the U.S. 

Constitution, made applicable to the states through the 14th 

Amendment. We disagree.

Under Nebraska’s capital sentencing scheme, a jury, if not 

waived, 110 only determines the existence of aggravating circumstances. 111 A jury’s participation in the death penalty sentencing phase, if not waived, 112 ceases after the determination of 

aggravating circumstances. 113 A three-judge panel determines 

the existence of mitigating circumstances, weighs aggravating 

and mitigating circumstances, and determines the sentence. 114

Section 29-2522 provides the guidelines for the three-judge 

panel’s sentencing determination:

The panel of judges for the sentencing determination 

proceeding shall either unanimously fix the sentence at 

death or, if the sentence of death was not unanimously 

agreed upon by the panel, fix the sentence at life imprisonment. Such sentence determination shall be based upon 

the following considerations:

(1) Whether the aggravating circumstances as determined to exist justify imposition of a sentence of death;

(2) Whether sufficient mitigating circumstances exist 

which approach or exceed the weight given to the aggravating circumstances; or

110 See Neb. Rev. Stat. § 29-2520(3) (Cum. Supp. 2020).

111 See § 29-2520(4)(g).

112 See § 29-2520(3).

113 See § 29-2520(4)(g).

114 § 29-2521.
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(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant.

In each case, the determination of the panel of judges 

shall be in writing and refer to the aggravating and 

mitigating circumstances weighed in the determination of 

the panel.

(a) Sixth Amendment

[39] The Sixth Amendment right to a speedy and public 

trial by an impartial jury, in conjunction with the Due Process 

Clause, requires that each element of a crime be proved to 

a jury beyond a reasonable doubt. 115 Article I, § 6, of the 

Nebraska Constitution provides: “The right of trial by jury 

shall remain inviolate . . . .”

In Apprendi v. New Jersey 116 and Ring v. Arizona,

 117 the 

U.S. Supreme Court held that under the Sixth Amendment, a 

defendant has a right to have any “fact on which the legislature 

conditions an increase in their maximum punishment” determined by a jury, even if the State characterizes that factual 

finding as a sentencing factor rather than an element. 118 “[T]he 

relevant inquiry is one not of form, but of effect.” 119

[40] The Court in Ring elaborated that under a statutory 

scheme in which the death penalty cannot be imposed unless 

at least one aggravating factor is found to exist beyond a 

reasonable doubt, the Sixth Amendment requires the factual 

determination of the aggravating factor be entrusted to the 

jury. “[I]f the legislature defines some core crime and then 

provides for increasing the punishment of that crime upon a 

115 Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).

116 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 

(2000).

117 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

118 Id., 536 U.S. at 589.

119 Apprendi v. New Jersey, supra note 116, 530 U.S. at 494.
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finding of some aggravating fact[,] . . . the core crime and the 

aggravating fact together constitute an aggravated crime.” 120

The Court found that “enumerated aggravating factors [of 

state laws] operate as the functional equivalent of an element 

of a greater offense.” 121

The Court in Ring expressly observed, however, it was not 

addressing whether the Sixth Amendment forbade determinations by judges, rather than juries, of mitigating circumstances, the relative weight of aggravating and mitigating 

circumstances, or the ultimate sentencing decision. In fact, the 

Court in Ring reiterated the distinction between facts of mitigation versus aggravation, as well as its prior pronouncement in 

Proffitt v. Florida 122 that “‘[i]t has never [been] suggested that 

jury sentencing is constitutionally required.’” 123

In several cases, we have rejected the argument that 

because the right to a jury determination is limited to guilt or 

innocence of the crimes charged and the determination of the 

aggravating circumstances, Nebraska’s sentencing scheme is 

unconstitutional under the 6th and 14th Amendments to the 

U.S. Constitution and article I, §§ 3 and 6, of the Nebraska 

Constitution. 124 In State v. Gales (Gales I),

 125 we explained 

that Apprendi and Ring do not stand for the proposition that 

a jury, rather than a judge or judges, must make the sentencing determinations listed under § 29-2522. Rather, Apprendi 

and Ring affected only the narrow issue of whether there is 

120Ring v. Arizona, supra note 117, 536 U.S. at 605 (internal quotation marks 

omitted).

121 Id., 536 U.S. at 609 (internal quotation marks omitted).

122 See Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 

(1976).

123Ring v. Arizona, supra note 117, 536 U.S. at 597-98 n.4.

124 See, State v. Jenkins, supra note 11; State v. Lotter, 301 Neb. 125, 917 

N.W.2d 850 (2018); State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 

(2007); State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).

125 State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
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a Sixth Amendment right to have a jury determine the existence of any aggravating circumstance upon which a capital 

sentence is based.

[41] We noted in Gales I that the U.S. Supreme Court, in 

Tuilaepa v. California,

 126 had described statutory schemes 

similar to the one in Nebraska as being composed of an 

“‘eligibility decision,’” in which there must be a determination of the existence of one or more prescribed aggravating 

circumstances before a defendant is eligible for a sentence 

of death and a “‘selection decision,’” in which the sentence 

determines whether a defendant who is thereby death eligible 

should in fact receive the death penalty, based upon an individualized determination of the character of the individual 

and the circumstances of the crime. 127 The “eligibility decision” stemmed from a series of U.S. Supreme Court decisions holding that in order to render a defendant eligible for 

the death penalty, the trier of fact must convict the defendant 

of murder and also find one “‘aggravating circumstance’ (or 

its equivalent) at either the guilt or penalty phase.” 128 We 

pointed out that the U.S. Supreme Court, in both Proffitt 129

and Spaziano v. Florida,

 130 had rejected arguments that the 

selection decision, as opposed to the eligibility decision, must 

be made by a jury, and the Court in Ring appeared to continue 

126 Tuilaepa v. California, 512 U.S. 967, 114 S. Ct. 2630, 129 L. Ed. 2d 750 

(1994).

127Gales I, supra note 125, 265 Neb. at 609, 658 N.W.2d at 614, quoting 

Tuilaepa v. California, supra note 126.

128 Tuilaepa v. California, supra note 126, 512 U.S. at 971-72. See, Lowenfield 

v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Zant v. 

Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Coker 

v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). See, 

also, Jones v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d 

370 (1999).

129 See Proffitt v. Florida, supra note 122.

130 Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 

(1984), overruled, Hurst v. Florida, supra note 115.
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to approve of the distinction between eligibility and selection 

decisions for purposes of the Sixth Amendment. 131 We accordingly held that the Sixth Amendment requires only the right to 

a jury determination of the death-eligibility finding of one or 

more aggravating circumstances and it does not apply to the 

selection decision.

Relying on the 2016 U.S. Supreme Court decision in Hurst 

v. Florida,

 132 Trail asserts that Gales I and its progeny are no 

longer good law. We disagree.

In Hurst, the Court held that a “hybrid” 133 sentencing 

scheme, in which the jury made a merely “advisory” 134 recommendation of life or death and did not make a binding finding 

as to the existence of any aggravating circumstance, violated 

the Sixth Amendment. The sentencing scheme required the 

jury to render an advisory verdict of life or death while 

the sentencing judge then exercised independent judgment 

to determine the existence of aggravating and mitigating factors and made an independent judgment, after weighing the 

aggravating and mitigating factors, about whether the sentence should be life or death. The sentencing statute specified 

that a defendant was not death eligible until the court (not 

a jury) made independent findings that the person shall be 

punished by death—which included finding that sufficient 

aggravating circumstances existed and that there were insufficient mitigating circumstances to outweigh the aggravating 

circumstances. 135

The Supreme Court in Hurst rejected the State’s argument 

that the scheme was constitutional because a jury implicitly 

found at least one aggravating circumstance when it recommended the death penalty. The Court explained, “The State 

131Gales I, supra note 125.

132Hurst v. Florida, supra note 115.

133 Id., 577 U.S. at 95 (internal quotation marks omitted).

134 Id. (internal quotation marks omitted).

135 See id.
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fails to appreciate the central and singular role the judge 

plays” 136 under the law wherein “[t]he trial court alone must” 137

make the “critical findings necessary to impose the death 

penalty” 138 without which the defendant’s maximum authorized 

punishment would be life imprisonment.

We recently addressed Hurst in State v. Jenkins.

 139 We 

held on direct appeal from the defendant’s conviction and 

sentence to the death penalty that Hurst did not require us 

to reexamine our prior conclusion that the Sixth Amendment 

does not require the jury to determine mitigating circumstance, perform the balancing function, or conduct the proportionality review.

Similarly, in State v. Lotter,

 140 we held, for purposes of the 

statute of limitations for a postconviction action, that Hurst 

did not announce a new rule of law. We explained Hurst was 

merely an application of Ring to the sentencing scheme under 

which the judge alone found the existence of any aggravating 

circumstance that made the defendant death eligible.

We explained in Lotter that isolated references in Hurst 

to the sentencing scheme’s requirement that the court find 

there were insufficient mitigating circumstances to outweigh 

the aggravating circumstances did not mean that the Supreme 

Court had held the jury rather than a judge must find that 

the aggravating circumstances outweigh the mitigating ones. 

Rather, we sided with the opinion of most federal and state 

courts, which agree Hurst does not stand for the proposition 

that a jury must find beyond a reasonable doubt that the aggravating factors outweigh the mitigating circumstances. 141

136 Id., 577 U.S. at 99.

137 Id., 577 U.S. at 100.

138 Id., 577 U.S. at 98.

139 State v. Jenkins, supra note 11.

140 State v. Lotter, supra note 124.

141 Id.
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[42] After Jenkins and Lotter, the U.S. Supreme Court, in 

McKinney v. Arizona,

 142 implicitly confirmed the validity of 

our analysis and the majority view. The Court held that on 

remand for a reweighing of the aggravating and mitigating 

circumstances (after federal habeas corpus review found the 

trial court had erred by refusing to consider the mitigating 

circumstance of the defendant’s post-traumatic stress disorder), a judge, rather than a jury, could conduct the reweighing. The Supreme Court specifically rejected the defendant’s 

argument that its holding in Hurst required a jury to reweigh 

aggravating and mitigating circumstances. The Court reiterated, “[I]n a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) 

is not constitutionally required to weigh the aggravating and 

mitigating circumstances or to make the ultimate sentencing 

decision within the relevant sentencing range.” 143 The Court 

explained that Ring and Hurst stand only for the proposition that a jury must find an aggravating circumstance that 

makes the defendant death eligible. “In short,” said the Court, 

“Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances” 144 and “‘States that leave 

the ultimate life-or-death decision to the judge may continue 

to do so.’” 145

[43] By leaving to the three-judge panel the ultimate lifeor-death decision upon making the selection decisions of 

whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that 

approach or exceed the weight given to the aggravating circumstances, Nebraska’s sentencing scheme does not violate 

142 McKinney v. Arizona, ___ U.S. ___, 140 S. Ct. 702, 206 L. Ed. 2d 69 

(2020).

143 Id., 140 S. Ct. at 707.

144 Id., 140 S. Ct. at 708.

145 Id., 140 S. Ct. at 708, quoting Ring v. Arizona, supra note 117 (Scalia, J., 

concurring; Thomas, J., joins).
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the Sixth Amendment right to a jury trial or article I, § 6, of 

the Nebraska Constitution.

(b) Eighth Amendment

Taking a more novel tack, Trail asserts Nebraska’s delegation of the selection criteria and ultimate life-or-death decision to the three-judge panel violates the Eighth Amendment 

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

Constitution. He asserts that allowing judge-determined death 

sentences has fallen outside society’s evolving standards of 

decency and that jurors, rather than judges, can more reliably 

express society’s consensus of whether a sentence of death is 

the adequate response to the defendant’s crimes. It does not 

appear we have ever addressed this specific argument. We conclude it lacks merit.

[44] The Cruel and Unusual Punishment Clause prohibits 

(1) “barbaric punishments under all circumstances” and (2) 

punishments that are not “‘graduated and proportioned to 

[the] offense.’” 146 Most cases involve disproportionality. 147

On disproportionality, there is a body of case law applying 

categorical rules under the Eighth Amendment in light of 

either the “nature of the offense” or the “characteristics of the 

offender.” 148 In adopting such rules, the U.S. Supreme Court 

has considered, first, “‘objective indicia of society’s standards’ 

. . . to determine whether there is a national consensus against 

the sentencing practice at issue.” 149 It then has exercised its 

own independent judgment, guided by “‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, 

history, meaning, and purpose.’” 150

146Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010).

147 See id.

148 Id., 560 U.S. at 60.

149 Id., 560 U.S. at 61.

150 Id.
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The U.S. Supreme Court has recognized that the Eighth 

Amendment reaffirms the duty of the government to respect the 

dignity of all persons “‘[b]y protecting even those convicted 

of heinous crimes . . . .’” 151 “To enforce the Constitution’s 

protection of human dignity, this Court looks to the ‘evolving standards of decency that mark the progress of a maturing 

society.’” 152 This is necessary because the standard of extreme 

cruelty is not merely descriptive, but necessarily embodies a 

moral judgment, and what is considered cruel and unusual punishment must change as the basic mores of society change. 153

The U.S. Supreme Court has also said, “The fundamental 

respect for humanity underlying the Eighth Amendment’s 

prohibition against cruel and unusual punishment gives rise 

to a special need for reliability in the determination that 

death is the appropriate punishment in any capital case.” 154

In order to ensure that reliability, “the sentencing process 

must permit consideration of the ‘character and record of the 

individual offender and the circumstances of the particular 

offense.’” 155

None of these Eighth Amendment principles are pertinent 

to whether a jury, as opposed to a judge, weighs the aggravating against the mitigating circumstances and makes the 

ultimate determination if death is the appropriate punishment. 

In fact, the U.S. Supreme Court has recognized as much. In 

Clemons v. Mississippi,

 156 in addition to addressing the Sixth 

151Hall v. Florida, supra note 62, 572 U.S. at 708, quoting Roper v. Simmons, 

543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

152 Id., quoting Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 1 L. Ed. 2d. 630 

(1958).

153 State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).

154 Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 

575 (1988) (internal quotation marks omitted).

155 See Lockett v. Ohio, 438 U.S. 586, 601, 98 S. Ct. 2954, 57 L. Ed. 2d 973 

(1978).

156Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 

(1990).
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Amendment, the U.S. Supreme Court held it does not violate 

the Eighth Amendment for an appellate court, rather than 

remand for a jury reweighing, to uphold a death sentence 

by itself reweighing on appeal the aggravating and mitigating evidence. One aggravating circumstance found below 

had been held on appeal to be unconstitutionally vague, but 

the other aggravating circumstance was held to be valid. 157

The Court explained, “The primary concern in the Eighth 

Amendment context has been that the sentencing decision be 

based on the facts and circumstances of the defendant, his 

background, and his crime.” 158 “[S]tate appellate courts can 

and do give each defendant an individualized and reliable 

sentencing determination based on the defendant’s circumstances, his background, and the crime.” 159 This holding in 

Clemons was reaffirmed after Hurst 160 by the Court’s opinion 

in McKinney.

 161

In arguing that the Eighth Amendment is relevant to procedures such as whether a panel of judges rather than a jury 

makes the final selection determinations necessary to impose 

the death penalty, Trail relies on Hall v. Florida.

 162 In Hall, 

the U.S. Supreme Court held that a statutory scheme making 

an intellectual quotient score final and conclusive on whether 

a defendant was intellectually disabled, without allowing consideration of additional evidence of intellectual disability, 

violated the Eighth Amendment when the scientific community and the national consensus recognized the specified 

score to be at the lower end of the inherent margin of error 

for a range demonstrating intellectual disability. Applying 

157 See id.

158 Id., 494 U.S. at 748.

159 Id., 494 U.S. at 749.

160Hurst v. Florida, supra note 115.

161 McKinney v. Arizona, supra note 142.

162Hall v. Florida, supra note 62.
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its prior holding in Atkins v. Virginia 163 that the 8th and 14th 

Amendments to the U.S. Constitution forbid the execution of 

persons with intellectual disability, the Court held the rigid 

statutory rule respecting intellectual quotient scores “creates 

an unacceptable risk that persons with intellectual disability 

will be executed, and thus is unconstitutional.” 164

Hall is not apposite to the case at bar. Having a three-judge 

panel weigh aggravators against mitigators and determine the 

ultimate sentence does not create an unacceptable risk that 

persons will be executed without the constitutionally required 

consideration of character and record of the individual offender 

and the circumstances of the particular offense.

[45] In State v. Mata,

 165 we rejected the defendant’s argument that a system wherein a three-judge panel weighs the 

aggravating and mitigating circumstances without guidance 

from the jury is arbitrary and capricious under the 8th and 

14th Amendments. In State v. Hessler,

 166 we rejected the 

defendant’s argument under the Eighth Amendment that a 

sentencing panel is not in as good of a position as the 

jury to assign a weight to the aggravating circumstances, 

to weigh aggravating circumstances against mitigating circumstances, or to determine the sentence. While Trail’s 8th 

Amendment arguments are somewhat different from those 

addressed in Mata and Hessler, he presents no reason to 

depart from our holdings in those cases that Nebraska’s 

statutory scheme, delegating to the three-judge panel determinations of whether the aggravating circumstances justify 

the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the 

163Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 

(2002).

164Hall v. Florida, supra note 62, 572 U.S. at 704.

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

166 State v. Hessler, supra note 124.
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aggravating circumstances, does not violate the 8th and 14th 

Amendments to the U.S. Constitution or article I, § 9, of the 

Nebraska Constitution.

6. Proportionality Review

[46] Lastly, Trail argues that because his crimes involved 

only one victim and one aggravator, the sentence of death 

in this case is excessive or disproportionate to the penalty 

imposed in similar cases. Under Neb. Rev. Stat. § 29-2521.03 

(Cum. Supp. 2020), we are required upon appeal to determine 

the propriety of a death sentence by conducting a proportionality review. Proportionality review requires us to compare the 

aggravating and mitigating circumstances with those present 

in other cases in which a district court imposed the death penalty. 167 This is to ensure that the sentence imposed in the case 

under review is no greater than those imposed in other cases 

with the same or similar circumstances. 168

[47] We disagree with Trail’s premise that the number of 

victims or the number of aggravating circumstances is determinative. We have emphasized that the balancing of aggravating 

circumstances against mitigating circumstances is not merely 

a matter of number counting, but, rather, requires a careful 

weighing and examination of the various factors. 169 It would 

be virtually impossible to find two murder cases which are the 

same in all respects. 170 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. 171

167 State v. Mata, supra note 165.

168 See id.

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

170 State v. Schroeder, supra note 12.

171 Id.
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[48] Accordingly, we have held that the death penalty can 

be imposed when only one aggravating circumstance is present. 172 Where the record reveals that the sentence of death was 

the result of reasoned judgment and the careful weighing and 

examination of the various circumstances and factors in light 

of the totality of the circumstances present, one aggravating 

circumstance may be sufficient under our statutory system for 

the sentencing court to conclude that imposition of the death 

penalty is appropriate. 173

In our de novo review, we conclude that the requirements of 

Neb. Rev. Stat. §§ 29-2519 to 29-2546 (Cum. Supp. 2020) have 

been met. Trail does not contest that the State proved beyond 

a reasonable doubt the aggravating circumstance of exceptional depravity to justify the imposition of the death penalty. 

As the sentencing panel described, the murder reflected cold, 

calculated planning to find and kill a helpless victim to satisfy Trail’s curiosity and sexual proclivities. The carvings on 

Sydney’s body and other acts of strategic mutilation demonstrated he relished the murder and had “no regard for the life 

of Sydney . . . beyond his own personal pleasure.” We find the 

aggravating circumstance of exceptional depravity is sufficient 

under the totality of the circumstances present to justify the 

death penalty for Trail.

Trail does not assert on appeal any mitigating circumstance. 

We agree with the sentencing panel that the nonstatutory mitigating circumstance of Trail’s upbringing does not approach 

or exceed the aggravating circumstance.

We have reviewed our relevant decisions on direct appeal 

from other cases in which the death penalty was imposed 

and do not find the imposition of the death penalty is a 

greater penalty than the sentences imposed in other cases 

with similar circumstances. For example, in State v. Joubert, 

we affirmed the death penalty when, among other things, 

172 See, id.; State v. Dunster, supra note 169.

173 State v. Dunster, supra note 169.
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the defendant had “coldly planned” 174 “[the] murders far in 

advance . . . to satisfy his intellectual or sexual curiosity or 

urges.” 175 Further, the murders in Joubert were “‘totally and 

senselessly bereft of any regard for human life.’” 176 In Mata, 

in affirming the death penalty, we found it “sufficient to say 

that [the victim’s] skull had been fractured by multiple blows 

of blunt force trauma at or near the time of death and that 

[the defendant] had dismembered [the victim’s] body and 

disposed of it in pieces.” 177 “[The defendant] had relished 

killing [the victim] with gratuitous violence and unnecessary 

mutilation.” 178

Our proportionality review, required by § 29-2521.03, is 

designed to ensure that no sentence imposed shall be greater 

than those imposed in other cases with the same or similar 

circumstances and that the review should include only those 

cases in which the death penalty was imposed. 179 Like the 

defendant in Joubert, Trail coldly planned Sydney’s murder 

to satisfy sexual urges. Like the actions of the defendant in 

Joubert and the defendant in Mata, Trail’s mutilation and dismemberment of Sydney’s body showed he relished the killing 

and was bereft of any regard for human life. The crime committed against Sydney was utterly senseless and cruel. The 

sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases. We uphold the 

sentencing panel’s imposition of the death sentence.

VI. CONCLUSION

For the foregoing reasons, we find no merit to Trail’s 

assignments of error challenging the denial of his pretrial 

174 State v. Joubert, supra note 4, 224 Neb. at 432, 399 N.W.2d at 251.

175 Id. at 430, 399 N.W.2d at 250.

176 Id.

177 State v. Mata, supra note 165, 275 Neb. at 30, 745 N.W.2d at 255.

178 Id.

179 See State v. Joubert, supra note 4.
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motions to prevent death qualification of the jury and to 

sever the conspiracy and murder charges, the district court’s 

orders during trial releasing Sydney’s mother from sequestration after she testified and denying his motion for a mistrial 

based on his outburst involving self-harm, and the district 

court’s denial of his motion for a new trial. Further, we 

reaffirm the constitutionality of the Nebraska death penalty 

statutes and find Trail’s sentence of death was not excessive 

or disproportionate.

Affirmed.