NE Code § 29-2522 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2522 - Sentence; considerations; determination; contents.

29-2522.  Sentence; considerations; determination; contents.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(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.If an order is entered sentencing the defendant to death, a date for execution shall not be fixed until after the conclusion of the appeal provided for by section 29-2525.Source   Laws 1973, LB 268, § 7;   Laws 1978, LB 711, § 5;   Laws 1982, LB 722, § 10;  Laws 2002, Third Spec. Sess., LB 1 § 14;  Laws 2011, LB12, § 4;  Laws 2015, LB268, § 35;   Referendum 2016, No. 426.   Note: The repeal of section 29-2522 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. Particular cases 2. Miscellaneous 1. Particular cases Nebraska is a "weighing" state, in which a single judge or three-judge panel determines the aggravating and mitigating circumstances and decides whether to impose the death penalty by determining whether the aggravating circumstances outweigh the mitigating circumstances. In Nebraska, when an appellate court invalidates one or more of the aggravating circumstances found by the trial court, or finds as a matter of law that any mitigating circumstance exists not considered by the sentencing panel in its balancing, the appellate court may, consistent with the U.S. Constitution, reweigh the remaining circumstances or conduct a harmless error analysis. The Supreme Court's independent review of a death sentence where the trial court erred in its findings regarding aggravating or mitigating circumstances must henceforth include an independent examination of the trial record, the presentence investigation, and the findings of the sentencing panel in order to determine the existence or nonexistence of aggravating and mitigating circumstances, as well as a reweighing of all the factors. 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 to arrive at a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present. The findings on which an aggravating circumstance is based must be proved beyond a reasonable doubt. Trial court's error in failing to consider defendant's intoxication as a mitigating factor did not constitute harmless error where it could not be determined that the trial court's weighing analysis would have been the same had the circumstance been factored into the balance. Evidence that defendant sexually assaulted or attempted to sexually assault and brutally stabbed to death a woman he had known all his life, then killed the woman's female houseguest to conceal the commission of the first murder, outweighed evidence of his remorse, amnesia, usual nonviolent nature, and intoxication such that death penalty was the appropriate sentence for each murder. State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991). Death sentence was not excessive where the sentencing court found four statutory aggravating circumstances present and no mitigating circumstances. State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981). Death sentence upheld where defendant murdered six family members, including children, and sexually molested female victims. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977). Death sentence not excessive for defendant with history of multiple convictions for bank robbery, first-degree assault, and armed robbery, where defendant point-blank murdered and wounded unresisting robbery victims. State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977). Death sentence imposed where twenty-three-year-old defendant with prior criminal convictions for aggravated assault and grand larceny killed civilian aiding police in the apprehension of defendant fleeing the scene of an armed robbery. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977). Distrct court's imposition of death sentence reduced to life imprisonment where sixteen-year-old defendant with no prior criminal record killed victim instantaneously, without torture. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). 2. Miscellaneous A court's proportionality review spans all previous cases in which a sentence of death is imposed and is not dependent on which cases are put forward by the parties. The proportionality review does not require that a court "color match" cases precisely, and 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. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020). The balancing of aggravating circumstances against mitigating circumstances in deciding whether to impose the death penalty is not merely a matter of number counting, but, rather, requires a careful weighing and examination of the various factors. State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). 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). The determination of mitigating circumstances, the balancing of aggravating circumstances against mitigating circumstances, and proportionality review are part of the selection decision in capital sentencing, which occurs only after eligibility for a death sentence has been determined. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003). In reviewing a sentence of death on appeal, 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. The court must also determine whether the imposition of the death penalty is excessive or disproportionate to the penalty imposed in similar cases. A criminal defendant in a capital case may lawfully waive his or her right to present mitigating evidence during sentencing. 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 Nebraska's statutory system for the sentencing court to conclude that imposition of the death penalty is appropriate. Under this section, the sentencing determination of the court shall be in writing and shall be supported by written findings of fact based upon the records of the trial and the sentencing proceeding, and referring to the aggravating and mitigating circumstances involved in its determination. The court in its sentencing order must specify the factors it relied upon in reaching its decision, and focus on the individual circumstances of each homicide and each defendant. State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001). There is no conflict between section 29-2519 and this section. Only this section details the standards which govern the imposition of the death penalty. The word "approach" in subsection (2) of this section does not render this section vague. The "proportionality review" provided for in this section neither violates the Due Process Clause nor violates the prohibition against cruel and unusual punishment in the U.S. Constitution and article I, sections 3 and 9, of the Nebraska Constitution. State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996). This section is constitutional; there is no sixth amendment right to jury sentencing. A sentencing court may consider information adduced at trial to support findings of aggravating and mitigating circumstances when exercising discretioin in imposing sentence under subsection (3) of this section. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). Aggravating circumstances must be proved beyond a reasonable doubt. Once one or more aggravating circumstances have been found to exist, this section requires not a mere counting of aggravating and mitigating circumstances, but, rather, a reasoned judgment as to what factual situations require the imposition of death and which of those can be satisfied by life imprisonment in light of the totality of the circumstances present. State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986). No jury determination of aggravating and mitigating circumstances or the application thereof is required by state or federal constitution. State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). Amendments to this section by virtue of Laws 1978, L.B. 711, do not apply to a capital case in which a final sentence was imposed prior to the effective date of L.B. 711, and such case will not be reviewed in light of the act. State v. Rust, 208 Neb. 320, 303 N.W.2d 490 (1981). In adopting sections 29-2521.01 to 29-2522, the Legislature intended to establish a procedure whereby the death penalty would be applied uniformly throughout the state. The procedure does not come into play where the death penalty is not imposed. State v. Welsh, 202 Neb. 249, 275 N.W.2d 54 (1979).