NE Code § 29-2521 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2521 - Sentencing determination proceeding.

29-2521.  Sentencing determination proceeding.(1) When a person has been found guilty of murder in the first degree and (a) a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520 or (b)(i) the information contains a notice of aggravation as provided in section 29-1603 and (ii) such person waives his or her right to a jury determination of the alleged aggravating circumstances, the sentence of such person shall be determined by:(a) A panel of three judges, including the judge who presided at the trial of guilt or who accepted the plea and two additional active district court judges named at random by the Chief Justice of the Supreme Court. The judge who presided at the trial of guilt or who accepted the plea shall act as the presiding judge for the sentencing determination proceeding under this section; or(b) If the Chief Justice of the Supreme Court has determined that the judge who presided at the trial of guilt or who accepted the plea is disabled or disqualified after receiving a suggestion of such disability or disqualification from the clerk of the court in which the finding of guilty was entered, a panel of three active district court judges named at random by the Chief Justice of the Supreme Court. The Chief Justice of the Supreme Court shall name one member of the panel at random to act as the presiding judge for the sentencing determination proceeding under this section.(2) In the sentencing determination proceeding before a panel of judges when the right to a jury determination of the alleged aggravating circumstances has been waived, the panel shall, as soon as practicable after receipt of the written report resulting from the presentence investigation ordered as provided in section 29-2261, hold a hearing. At such hearing, evidence may be presented as to any matter that the presiding judge deems relevant to sentence and shall include matters relating to the aggravating circumstances alleged in the information, to any of the mitigating circumstances set forth in section 29-2523, and to sentence excessiveness or disproportionality. The Nebraska Evidence Rules shall apply to evidence relating to aggravating circumstances. Each aggravating circumstance shall be proved beyond a reasonable doubt. Any evidence at the sentencing determination proceeding which the presiding judge deems to have probative value may be received. The state and the defendant or his or her counsel shall be permitted to present argument for or against sentence of death. The presiding judge shall set forth the general order of procedure at the outset of the sentencing determination proceeding. The panel shall make written findings of fact based upon the trial of guilt and the sentencing determination proceeding, identifying which, if any, of the alleged aggravating circumstances have been proven to exist beyond a reasonable doubt. Each finding of fact with respect to each alleged aggravating circumstance shall be unanimous. If the panel is unable to reach a unanimous finding of fact with respect to an aggravating circumstance, such aggravating circumstance shall not be weighed in the sentencing determination proceeding. After the presentation and receipt of evidence and argument, the panel shall determine an appropriate sentence as provided in section 29-2522.(3) When a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520, the panel of judges shall, as soon as practicable after receipt of the written report resulting from the presentence investigation ordered as provided in section 29-2261, hold a hearing to receive evidence of mitigation and sentence excessiveness or disproportionality. Evidence may be presented as to any matter that the presiding judge deems relevant to (a) mitigation, including, but not limited to, the mitigating circumstances set forth in section 29-2523, and (b) sentence excessiveness or disproportionality as provided in subdivision (3) of section 29-2522. Any such evidence which the presiding judge deems to have probative value may be received. The state and the defendant and his or her counsel shall be permitted to present argument for or against sentence of death. The presiding judge shall set forth the general order of procedure at the outset of the sentencing determination proceeding. After the presentation and receipt of evidence and argument, the panel shall determine an appropriate sentence as provided in section 29-2522.Source   Laws 1973, LB 268, § 6;  Laws 2002, Third Spec. Sess., LB 1, § 12;  Laws 2015, LB268, § 35;   Referendum 2016, No. 426.   Note: The repeal of section 29-2521 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election. Cross References  Nebraska Evidence Rules, see section 27-1103.Annotations  1. Constitutionality 2. Miscellaneous 1. Constitutionality Because the defendant could not avoid the risk of death by waiving his right to a jury, this section did not unconstitutionally burden the exercise of that right by providing that if the defendant waives the right to a jury, then members of a three-judge panel must make unanimous and written findings of fact regarding the existence of aggravating circumstances, as distinguished from jurors, who are not required to unanimously agree on the State's alternate theories supporting an aggravating circumstance. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). The Eighth Amendment does not require jury sentencing in death penalty cases; Nebraska's capital sentencing scheme is not constitutionally defective, because it requires a jury, unless waived, to determine only the existence of aggravating circumstances and a three-judge panel to determine the existence of mitigating circumstances, weigh aggravating and mitigating circumstances, and determine the sentence. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). This section applies equally to every court in the class to which it is intended to apply, and thus, it does not violate Neb. Colnst. art. V, section 19. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998). 2. Miscellaneous Because a sentencing panel is required to consider and weigh any mitigating circumstances in imposing a sentence of death, the introduction of evidence of the existence or nonexistence of these potential mitigators has probative value to the sentence, and as such, a sentencing panel has the discretion to hear evidence to address potential mitigating circumstances regardless of whether the defendant presents evidence on that issue. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020). The sentencing panel could consider a defendant's no contest plea and the factual basis underlying it, but it could not use it as an admission to aggravating circumstances for sentencing purposes. State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019). Subsection (2) of this section requires a sentencing panel to consider the trial record in imposing a sentence in a death penalty case. State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012). Under subsection (3) of this section, the aggravation hearing record is relevant to mitigation. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009). A change in the law providing that the existence of aggravating circumstances is to be determined by a jury unless waived by the defendant is procedural in nature. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003). 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). A sentencing court may consider information adduced at trial to support findings of aggravating and mitigating circumstances when exercising discretion in imposing sentence. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). The sentencing court has broad discretion as to the source and type of evidence or information which may be used as assistance in determining the kind and extent of the punishment to be imposed. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). Hearing on determination of sentence shall include written findings, proven beyond a reasonable doubt, identifying any aggravating and mitigating circumstances or other relevant facts. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (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).