NE Code § 29-2523 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2523 - Aggravating and mitigating circumstances.

29-2523.  Aggravating and mitigating circumstances.The aggravating and mitigating circumstances referred to in sections 29-2519 to 29-2524 shall be as follows:(1) Aggravating Circumstances:(a) The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial prior history of serious assaultive or terrorizing criminal activity;(b) The murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of such crime;(c) The murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant;(d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence;(e) At the time the murder was committed, the offender also committed another murder;(f) The offender knowingly created a great risk of death to at least several persons;(g) The victim was a public servant having lawful custody of the offender or another in the lawful performance of his or her official duties and the offender knew or should have known that the victim was a public servant performing his or her official duties;(h) The murder was committed knowingly to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws; or(i) The victim was a law enforcement officer engaged in the lawful performance of his or her official duties as a law enforcement officer and the offender knew or reasonably should have known that the victim was a law enforcement officer.(2) Mitigating Circumstances:(a) The offender has no significant history of prior criminal activity;(b) The offender acted under unusual pressures or influences or under the domination of another person;(c) The crime was committed while the offender was under the influence of extreme mental or emotional disturbance;(d) The age of the defendant at the time of the crime;(e) The offender was an accomplice in the crime committed by another person and his or her participation was relatively minor;(f) The victim was a participant in the defendant's conduct or consented to the act; or(g) At the time of the crime, the capacity of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental illness, mental defect, or intoxication.Source   Laws 1973, LB 268, § 8;   Laws 1998, LB 422, § 1;  Laws 2002, Third Spec. Sess., LB 1, § 15;  Laws 2015, LB268, § 35;   Referendum 2016, No. 426.   Note: The repeal of section 29-2523 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election. Annotations  1. Aggravating circumstances 2. Mitigating circumstances 3. Miscellaneous 1. Aggravating circumstances "Mental anguish" is not a component of the aggravating circumstances included in subsection (1) of this section, and its use is disapproved. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). A jury instruction in a death penalty case that allowed the State to satisfy the "exceptional depravity" aggravator by proving that the defendant "apparently relished" the murder was not unconstitutionally vague; a juror would have clearly understood that the term "apparently relished" referred to his or her own perception of the defendant's conduct. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). The use of a prior offense to prove an aggravating circumstance under subsection (1)(a) of this section does not increase the penalty for the prior offense and does not expose the defendant to new jeopardy for such offense. Because the use of evidence of a prior offense to prove an aggravating circumstance under subsection (1)(a) of this section does not expose the defendant to new jeopardy for the prior offense, such use does not violate the Double Jeopardy Clause. State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007). The term "especially heinous, atrocious, or cruel," as used in subsection (1)(d) of this section, is limited to cases where torture, sadism, or the imposition of extreme suffering exists, or where the murder was preceded by acts performed for the satisfaction of inflicting either mental or physical pain or when such pain existed for any prolonged period of time. This class includes murders involving torture, sadism, or sexual abuse. This prong must be looked upon through the eyes of the victim. State V. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005). The two prongs of aggravating circumstance in subsection (1)(d) describe, in the disjunctive, two separate circumstances which may operate in conjunction with or independent of one another. State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005). A person convicted of first degree murder in Nebraska is not eligible for the death penalty unless the State proves one or more of the statutory aggravators beyond a reasonable doubt. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003). Nebraska's death penalty statutes, which include subsection (1) of this section, are neither vague nor overbroad. The terms "substantial history", "apparent effort", and "especially heinous, atrocious, cruel", as used in subsection (1) of this section, are neither vague nor overbroad. Subsection (1)(d) of this section contains two separate disjunctive components which may operate together or independently of one another. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000). The word "apparent" in subsection (1)(b) of this section is neither vague nor causes subsection (1)(b) to be subject to arbitrary and capricious application. The word "apparent" in subsection (1)(b) of this section means readily perceptible. "Apparent" qualifies aggravating circumstance in subsection (1)(b) of this section to the extent that the provision cannot be applied in speculative situations or where a strained construction is necessary to fulfill it. The State must prove the existence of aggravating circumstance subsection (1)(b) of this section beyond a reasonable doubt. Aggravating circumstance subsection (1)(b) of this section is not overbroad. Aggravating circumstance subsection (1)(b) of this section does not apply only to murders which were committed to hide the defendant's involvement in some crime unrelated to the killing for which the defendant is being sentenced. The two components of aggravating circumstance subsection (1)(d) of this section may operate together or independently of one another. The second component of aggravating circumstance subsection (1)(d) of this section, if a murder manifests exceptional depravity by ordinary standards of morality and intelligence, pertains to the state of mind of the actor and may be proved by or inferred from the defendant's conduct at or near the time of the offense. "Exceptional depravity" in aggravating circumstance subsection (1)(d) of this section means "so senselessly bereft of regard for human life". "Exceptional" in aggravating circumstance subsection (1)(d) of this section confines this aggravating circumstance to only those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence. "Exceptional depravity" exists when it is shown, beyond a reasonable doubt, that the following circumstances, either separately or collectively, exist in reference to a first degree murder: (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. Aggravating circumstance subsection (1)(d) of this section is neither vague nor overbroad. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996). The first prong of aggravating circumstance (1)(d) of this section, narrowed by Nebraska Supreme Court decisions defining the phrase "especially heinous, atrocious, cruel" to mean unnecessarily torturous to the victim, satisfies constitutional requirements. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995). Aggravating circumstances must be proved beyond a reasonable doubt. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993); State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). The first prong of aggravating circumstance (1)(d) includes pitiless crimes unnecessarily torturous to the victim and cases where torture, sadism, or the imposition of extreme suffering exists. This prong has been narrowed to include murders involving torture, sadism, or sexual abuse. Subsection (1)(d) of this section describes two separate disjunctive circumstances which may operate together or independently of one another. Thus, proof of the first prong is sufficient to establish the existence of this aggravating circumstance. State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991). The aggravating circumstance found in subsection (1)(d) of this section literally, and as interpreted by this court, describes in the disjunctive two separate circumstances which may operate in conjunction with or independent of one another. The first circumstance is that the murder was especially heinous, atrocious, or cruel. The second circumstance pertains to the state of mind of the actor. The State needs to prove only the first prong of subsection (1)(d) for that aggravating circumstance to exist. To constitute an aggravating circumstance under the first prong of subsection (1)(d), the murder must be especially heinous, atrocious, or cruel. "Especially heinous, atrocious, (or) cruel" is limited to cases where torture, sadism, or the imposition of extreme suffering exists, or where the murder was preceded by acts performed for the satisfaction of inflicting either mental or physical pain or that pain existed for any prolonged period of time. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991). The "especially heinous, atrocious, or cruel" language of subsection (1)(d) of this section is limited to cases where torture, sadism, or the imposition of extreme suffereing exists, or where murder was preceded by acts performed for the satisfaction of inflicting either mental or physical pain or that pain existed for any prolonged period of time. In order for aggravating circumstance (1)(d) to be present, the method of killing must entail something more than the ordinary circumstances which attend any death-dealing violence. This limiting construction of (1)(d) saves it from violating the U.S. Constitution. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). Subsection (1)(b) of this section is not unconstitutionally vague. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990). The specific delineation of aggravating factors in this section constitutes sufficient notice to a defendant who is charged with first degree murder. The State is not constitutionally required to provide the defendant with notice as to which particular aggravating circumstance or circumstances upon which the State will rely in seeking the death penalty. This section exclusively lists the aggravating factors which may be relied upon in imposing the death penalty. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990). Under subsection (1)(a) of this section: (1) A sentencing court may not consider the same evidence to support different aggravating factors. However, a sentencing court may consider evidence of distinct incidents to support different aggravating factors; (2) the facts upon which the applicability of an aggravating factor depends must be proved beyond a reasonable doubt; and (3) the use of the term "history" refers to events prior to the acts out of which the charge arose. Under the court's narrow interpretation and application, subsection (1)(a) of this section is not unconstitutionally vague or overbroad. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). Mere proof that an offender was previously convicted of two assaults of unspecified degree and of an attempted second degree assault does not in and of itself establish beyond a reasonable doubt the existence of the aggravating circumstance defined in subsection (1)(a) of this section. State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987). Any serious assaultive or terrorizing criminal activity committed by the accused prior to the time of the offense may properly be considered when deciding the applicability of subsection (1)(a) of this section. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). "Exceptional depravity," as used in subsection (1)(d) of this section, refers and pertains to the state of mind of the actor and may be proved by or inferred from the defendant's conduct at or near the time of the offense. "Exceptional depravity" exists when the act is totally and senselessly bereft of any regard for human life as shown by the presence of the following circumstances, either separately or collectively: (1) Apparent relishing of the murder; (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. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). Subsection (1)(d) of this section, that a murder be "especially heinous, atrocious, cruel" or manifest "exceptional depravity by ordinary standards of morality and intelligence," describes in the disjunctive at least two distinct components of the aggravating circumstance which may operate in conjunction with or independent of one another. The presence of any of the components will sustain a finding that aggravating circumstance (1)(d) exists. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). The words "especially heinous, atrocious, cruel," as used in subsection (1)(d) of this section, mean a conscienceless or pitiless crime which is unnecessarily torturous to the victim, and a determination thereof must be looked upon through the eyes of the victim and should be applied where torture, sadism, or the imposition of extreme suffering exists. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). What constitutes aggravating circumstances is not left to the discretion of either the sentencing court or the Supreme Court but, instead, is set out by statute in detail. Aggravating circumstances must be proved beyond a reasonable doubt. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). For the purpose of subsection (1)(d) of this section as an aggravating circumstance in determining whether the death penalty may be imposed, "exceptional depravity" refers to the state of mind of the actor and exists when it is shown beyond a reasonable doubt that the following circumstances, either separately or collectively, exist in reference to a first degree murder: (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. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986). Aggravating circumstance (1)(b) does not exist unless the murder was committed for the purpose of concealing the commission of a crime or for the purpose of concealing the identity of the perpetrator of a crime. Aggravating circumstance (1)(d) does not exist unless the method of killing itself entails something more than the ordinary circumstances which attend any death-dealing violence. A death sentence cannot be imposed absent the existence of at least one of the aggravating circumstances set forth in this section. State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985). Subsection (1)(d) of this section is not unconstitutionally vague. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). No jury determination of aggravating and mitigating circumstances or the application thereof is required by state or federal constitution. A state of mind which indicates a callous disposition to repeat the crime of murder manifests exceptional depravity by ordinary standards of morality and intelligence within the meaning of subsection (1)(d) of this section. An aggravating circumstance existed where the murder was committed to conceal the identity of the perpetrator of a robbery under subsection (1)(b) of this section. State v. Moore, 210 Neb. 457 316 N.W.2d 33 (1982). Circumstances of victim's death, found bound and gagged when killed, constituted effort to conceal identity of perpetrator. State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977). Murder committed during act of robbery held not a murder for pecuniary gain herein. State v. Peery, 1999 Neb. 656, 261 N.W.2d 95 (1977). Prior record of multiple crimes of violence constituted an aggravating circumstance. State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977). 2. Mitigating circumstances Mitigating circumstances involve, in part, circumstances surrounding the underlying crime and include pressure or influences which may have weighed on the defendant, potential influence on the defendant of extreme mental or emotional disturbance at the time of the offense, potential victim participation or consent to the act, the defendant's capacity to appreciate the wrongfulness of the act at the time of the offense, and any mental illness, defect, or intoxication which may have contributed to the offense. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020). For purposes of subsection (2)(c) of this section, "extreme" means that the mental or emotional disturbance must be existing in the highest or the greatest possible degree, very great, intense, or most severe. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011). The fact that a defendant has some sort of mental illness or defect does not by itself establish that the capacity of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental illness, mental defect, or intoxication. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011). Under subsection (2) of this section, there is no burden of proof with regard to mitigating circumstances. The State may present evidence which is probative of the nonexistence of a statutory or nonstatutory mitigating circumstance, while the defendant may present evidence which is probative of the existence of a statutory or nonstatutory circumstance. However, because sections 29-2519 et seq. do not require the State to disprove the existence of mitigating circumstances, they do place the risk of nonproduction and nonpersuasion on the defendant. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990); State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990). Subsection (2) of this section is not unconstitutional. The mitigating circumstance found in subsection (2)(c) of this section, which limits mental or emotional disturbance to cases which are extreme, is not constitutionally infirm where court decisions permit consideration of any aspects of mitigation. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990). Under subsection (2) of this section, it is constitutionally permissible to allow the sentencing judge or judges in a capital case to consider prior uncounseled convictions in determining the existence or nonexistence of a mitigating circumstance and it is constitutionally permissible to allow the sentencing judge or judges in a capital case to consider unadjudicated misconduct in determining the existence or nonexistence of a mitigating circumstance, provided the defendant is given an opportunity to rebut the charges. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990). A defendant may offer any evidence on the issue of mitigation, even though the mitigating factor is not specifically listed in this section. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). This section does not in any way limit the mitigating circumstances a sentencing court may consider, and the sentencing court should be liberal in admitting evidence the defendant asserts is a mitigating factor. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). 3. Miscellaneous In death penalty cases, an eligibility or selection factor is not unconstitutional if it has some commonsense core of meaning that a juror can understand. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). Jurors are not required to unanimously agree on the means by which a capital defendant manifests exceptional depravity under subsection (1)(d) of this section. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). Under this section, 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. State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001). Pursuant to subsection (1)(h) of this section, there is no requirement under this section that the murder must be an immediate and direct attempt to disrupt or hinder the enforcement of the laws; the only requirement is that the defendant must do so knowingly. Subsection (2)(b) of this section contemplates only outside pressures, not those created by the defendant's own acts. Pursuant to subsection (2)(c) of this section, if the extreme mental or emotional disturbance is the result of a mental illness or defect, it falls within the broader purview of subsection (2)(g) of this section. Section 28-105.01 merely narrows the application of subsection (2)(d) of this section to persons of advanced years. State v. Lotter 255 Neb. 456, 586 N.W.3d 591 (1998). The facts establishing an aggravating circumstance must be proved beyond a reasonable doubt. Definitions of aggravating and mitigating circumstances discussed and interpreted. State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993); State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991); State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991); State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990); State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). In certain circumstances, an appellate court may reweigh the aggravating and mitigating circumstances. A court is not limited to the statutory mitigating factors. State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991). The courts are required to consider any relevant evidence in mitigation. 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. State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990). In arriving at a sentence in a first degree murder case, the court is not limited in its consideration to the factors listed in this section but may consider any matter relevant to imposition of sentence and receive any evidence with probative value as to the character of the defendant. State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990); State v. Holtan, 205 Neb. 314, 287 N.W.2d 671 (1980). Where a defendant has testified in a previous criminal case under a lawful grant of immunity, the sentencing court in a subsequent criminal case cannot consider such testimony or any information directly or indirectly derived from it in determining whether a death sentence should be imposed under the provisions of this section and related statutes. State v. Jones, 213 Neb. 1, 328 N.W.2d 166 (1982). The definitions of aggravating and mitigating circumstances are not unconstitutionally vague. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). This section, as interpreted in State v. Holtan, 205 Neb. 314, 287 N.W.2d 671 (1980), meets the requirements of the Neb. Const. article 1, section 9, and of the U.S. Constitution. State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980).