Summary
In State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1970), we stated a gruesome photograph may be admitted if it makes clear some controverted issue in the case.
Summary of this case from State v. RyanOpinion
No. 42235.
Filed December 18, 1979.
1. Criminal Law: Trial: Evidence. Evidence which tends to show a course of conduct, scheme, or design is admissible to prove identity, although such evidence relates to other offenses. 2. Criminal Law: Trial: Evidence: Intent. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 3. Criminal Law: Trial: Evidence. Evidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence or transaction, may be admissible. 4. Criminal Law: Trial: Evidence: Homicide. If a photograph illustrates or makes clear some controverted issue in a homicide case, proper foundation having been laid, it may be received in evidence even if it is gruesome. The admission of photographs of a gruesome nature rests largely within the sound discretion of the trial court. 5. Criminal Law: Trial: Evidence: Homicide: Intent. In a homicide case, photographs of the victim upon proper foundation, may be received in evidence for purposes of identification, to show the condition of the body, the nature and extent of the wounds and injuries, and to establish malice or intent. 6. Criminal Law: Venue: Judgments. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court and its ruling will not be disturbed on appeal unless a clear abuse of discretion is shown. 7. Criminal Law: Trial: Evidence: Confessions. The admission in evidence of a statement or confession constitutes the trial court's independent determination that the statement was voluntarily made. 8. Criminal Law: Trial: Judgments: Confessions. A finding by the trial court that a statement of an accused is voluntary will not ordinarily be set aside on appeal unless the finding is clearly erroneous. 9. Criminal Law: Trial: Discovery. The mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial does not affect "materiality" in the constitutional sense. 10. ___: ___: ___. In a criminal case the trial court is vested with broad discretion in considering discovery requests of defense counsel and error can be predicated only upon an abuse of such discretion. 11. Criminal Law: Juries: Instructions: Mental Health. It is not error to refuse to instruct a jury in a criminal case on the consequences of a verdict of not guilty by reason of insanity. 12. Criminal Law: Indictments and Informations: Evidence: Verdicts. It is only where there is a total failure of competent proof in a criminal case to support a material allegation in the information, or where the testimony adduced is of so weak or doubtful a character that a conviction based thereon could not be sustained, that the trial court will be justified in directing a verdict of not guilty. 13. Criminal Law: Statutes: Sentences: Words and Phrases: Death Penalty. In the context of Chapter 29, article 25, the word "sentence" in section 29-2521.03, R. S. Supp., 1978, is construed to mean a sentence of death, and the provisions of that section directing the determination by the Supreme Court of the propriety of a "sentence" by comparison with previous cases are applicable only in a case where a sentence of death has been imposed. 14. Criminal Law: Statutes: Supreme Court: Homicide: Time. Under L.B. 711, Laws of 1978, codified as part of Chapter 29, article 25, R. S. Supp., 1978, the Supreme Court will review and analyze only cases involving a conviction for first degree murder committed on or after April 20, 1973. 15. Criminal Law: Death Penalty: Supreme Court: Homicide. Where a death sentence has been imposed, and the Supreme Court is required to determine the propriety of that sentence in such case, the determination of which previous first degree murder cases involve the same or similar circumstances and are therefore comparable will be made by this court on a case-by-case basis.
Appeal from the District Court for Lancaster County: HERBERT A. RONIN, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Thomas L. Hagel, and Richard L. Goos, for appellant.
Paul L. Douglas, Attorney General, and Judy K. Hoffman, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ., and RIST, District Judge.
Robert E. Williams pleaded not guilty by reason of insanity or mental derangement to two counts of murder in the first degree and one count of first degree sexual assault. He was found guilty by a jury on all three counts and sentenced to death on each of the two murder counts and to imprisonment for not less than 8 1/3 years nor more than 25 years on the sexual assault count.
In the late afternoon of August 11, 1977, the bodies of Patricia A. McGarry and Catherine M. Brooks were found in the McGarry apartment in Lincoln, Nebraska, after a search was instituted when neighbors found the 5-year-old daughter of Catherine Brooks wandering in the neighborhood looking for her mother.
The naked body of Catherine Brooks was found lying face down in the center of the living room floor. A pool of blood surrounded her head. There was a nonfatal bullet wound in her back and two bullet wounds behind her left ear. Later medical examination revealed spermatozoa in the vagina and in the rectal tract. The pathologist testified that the spermatozoa would have had to be deposited within an hour of her death.
The body of Patricia McGarry was lying in the dining room, face up, clad in a blue housecoat. She had also been shot three times, once under her right ear and twice in the neck. There was a bloody trail on the carpet from the living room into the dining room to the spot where Patricia's body lay.
The police found an empty beer bottle with latent fingerprints on a chair. Later examination established the fingerprints as those of the defendant. The police also found a full box of .22 caliber long rifle shells on the coffee table in the living room and another unfired .22 caliber shell on the sofa. The casing of a .22 caliber shell was found on the floor of the living room. There was a bullet hole in the wall between the living and dining rooms, and a spent bullet was found in the entryway between the two rooms. Later investigation established that on August 10, 1977, at approximately 7:45 p.m., a model K-22 Smith Wesson .22 caliber revolver and five boxes of .22 caliber long rifle shells were purchased by the defendant at a store in Lincoln.
Evidence at trial established that on August 11, 1977, at approximately 9:30 a.m., the defendant appeared at the apartment of another young woman in Lincoln, Nebraska. She had been acquainted with the defendant for approximately 6 months and he had been a babysitter for her 2-year-old daughter on occasion. The defendant told the woman that his car was broken down and asked to use her telephone. She admitted him and he then told her he needed to stay in her apartment for a while. She suggested that he stay in the storage room area of the apartment complex instead. The defendant then drew a revolver and demanded that she have sexual relations with him. She tried to lock herself in the bathroom but the defendant forced the door open and broke off the lock. He struck her in the chest and on the side of the head with the gun and threatened to blow her head off, and then raped her. The defendant remained in the apartment for several hours and raped the woman repeatedly.
At approximately 4 p.m., the defendant ordered the woman to bring her 2-year-old child and go to his car with him. As they approached the curb he told her she was free to go. She immediately went to a neighbor's home and called the police.
The woman testified that during the time the defendant had been with her, he drank one beer and smoked a joint of marijuana but appeared normal and did not appear to be intoxicated. Other witnesses who had been with the defendant on August 10, and one as late as 1:30 a.m., on August 11, 1977, testified that on those occasions the defendant appeared normal in speech and actions and did not appear to be intoxicated, although he had been drinking.
The evidence at trial established that defendant left the woman's apartment in Lincoln about 4 p.m., August 11, 1977, and about an hour later was seen at a service station in Fremont, Nebraska, some 50 miles away, where he stopped and purchased gasoline. The station attendant testified that the defendant's speech and coordination appeared to be normal, although he smelled alcohol on the defendant's breath.
At approximately 10:15 p.m., on August 11, 1977, a deputy sheriff observed and checked the defendant's car at a park and rest area in Cherokee County, Iowa, and checked it periodically thereafter through the night. At 6:15 a.m., the deputy had the car towed away. Upon examination of the car, the deputies discovered a packaging box for a Smith Wesson K-22 revolver; a box of .22 caliber long rifle cartridges from which six cartridges had been removed; a bag of marijuana; and some gas cans with negroid hairs on them.
Shortly after 6 a.m., on August 12, 1977, Mrs. Jack Montgomery, who lived 1 1/2 miles west of the park and rest area in which defendant's car had been found, discovered that her car was missing from the garage. There was a blanket in the car and another blanket was also missing. She also found a checkbook with the name of the defendant imprinted on the checks lying in the driveway in front of the garage. At approximately 10 o'clock the same morning the Montgomery car was found abandoned in a ditch about 20 miles northeast of the Montgomery farm.
A little after 7 a.m., on the same morning, Elbert Bredvick was standing in his farmyard approximately 5 miles southwest of the point at which the Montgomery car had been abandoned. Bredvick observed the defendant approaching carrying two blankets draped over his shoulder. The defendant asked for directions to the nearest town. Bredvick gave the defendant directions which led defendant past the Wayne Rowe farmhouse one-half mile to the west, and the defendant departed in that direction.
On the morning of August 12, 1977, Mrs. Wayne Rowe left the farm home at 7:45 a.m., for an appointment at her hairdresser. Wayne Rowe left the house about 8:15 a.m., and returned shortly after noon, expecting his wife to be home. He observed that his wife's car was gone and when he entered the house he saw his wife's purse on the chair and the morning mail on the table. About that time an Iowa state trooper arrived and Rowe and the trooper went upstairs and found Mrs. Rowe's naked body on the bed. There was a shotgun wound in her side and another in her back, and there was a wound in her neck from a .22 caliber bullet. Later examination established that she had also been sexually assaulted.
Negroid hairs were found in her hand and on the bedspread which compared favorably in diameter, coloration, pigment distribution, scale patterns, and medullation to samples taken from the defendant and the hairs found on the gas cans in his car. A .22 caliber bullet was found in the fibers of the bedspread which matched the bullets recovered from the bodies of Catherine Brooks and Patricia McGarry. A shotgun which had been kept in the Rowe home was missing and the telephone line had been cut.
In the bushes behind the Rowe garage officers found the blankets which were identified by Bredvick as the blankets that had been draped over the defendant's shoulder earlier that morning. The Rowe car was found later in St. Paul, Minnesota. Inside the car was a live round of .22 caliber ammunition and a misfired cartridge with a firing pin impression which matched a casing found at the murder scene.
On August 13, 1977, at approximately 1:30 p.m., in a suburb of St. Paul, Minnesota, the defendant confronted Walter Behun at gunpoint in the Behun yard and ordered Behun to drive him to St. Paul. They drove around for some time, ending at a railroad freight yard, where the defendant tied Behun up with belts and a sweat shirt, gagged him, and left him in a caboose. Behun testified that the defendant did not appear to be intoxicated.
About 3 p.m., on August 13, 1977, a young woman was returning to her car in a parking lot in St. Paul, Minnesota. She opened the car door and placed her purchase on the floor. The defendant came up behind her and ordered her to get into the car or he would shoot her. Before she had time to do so, he shot her once in the arm and again later behind her left ear. The defendant pushed her into the car, demanded the keys, and drove to a remote country area where he raped her. After the assault, the defendant tied her hands and legs and drove off in her car. She managed to untie herself, got to a farmhouse and was taken to the hospital, where she ultimately recovered.
The evidence indicates that after August 13, 1977, the defendant went to Chicago, Illinois, and then back to Lincoln, Nebraska, where he was arrested in the railroad yards on the early morning of August 18, 1977.
The defendant made a statement to the police which was admitted in evidence, and also testified at trial. Essentially, the defendant admitted shooting both Catherine Brooks and Patricia McGarry at the apartment in Lincoln, but denied raping Catherine Brooks. He testified that he was heavily under the influence of drugs and liquor at the time of the shootings and that his recollection was consequently very vague and confused.
On the issue of insanity raised by the defendant's plea, two psychiatrists testified for the prosecution, and both testified that although the defendant suffered from a personality disorder, he was not insane at the time of the murders and assault. Two psychiatrists for the defense testified that at the time of the crimes the defendant suffered from a paranoid state beyond that of a personality disorder. One testified that the defendant's perception of reality and his judgment were seriously impaired, but the doctor could not say the defendant did not know that what he was doing was wrong. The other doctor testified that the defendant's thinking process was distorted and that he would know his actions were wrong only if he took time to think. At the conclusion of the trial the jury found the defendant guilty on all three counts. A three-judge panel sentenced him to death on each of the two murder counts and to imprisonment for not less than 8 1/3 years nor more than 25 years on the sexual assault count, and this appeal followed.
The defendant contends that the trial court erred in admitting evidence of crimes other than those with which the defendant was charged, and that the evidence of such crimes was inadmissible and prejudicial. The defendant argues that none of the evidence of subsequent crimes was needed to prove any of the elements of the crimes charged, and that there is no legal connection between such subsequent crimes and the crimes with which the defendant was charged. He relies on the general rule that evidence of other crimes is not admissible to prove the defendant guilty of the particular crime with which he is charged. As an exception to that rule, this court has repeatedly held that evidence of other crimes similar to that charged is relevant and admissible when it tends to prove a particular criminal intent which is necessary to constitute the crime charged. State v. Casados, 188 Neb. 91, 195 N.W.2d 210. In sexual assault cases evidence which tends to show a course of conduct, scheme, or design is admissible to prove identity, although such evidence relates to other offenses. State v. Walker, 200 Neb. 273, 263 N.W.2d 454.
Section 27-404(2), R.R.S. 1943, provides: "(2) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See State v. Nielsen, 203 Neb. 847, 280 N.W.2d 904.
Evidence of other crimes may be admitted in a criminal prosecution where the evidence is so related in time, place, and circumstances to the offense or offenses charged as to have substantial probative value in determining the guilt of the accused. Evidence which is not sufficiently related is excluded on the ground that the probative value is outweighed by the risk of undue prejudice. The question of probative value depends upon many considerations, including proximity in point of time and place, the character of the evidence, and all the surrounding circumstances. See Annotation, 92 A.L. R. 3d 545.
Sexual crimes have consistently been classified as a class of crimes in which evidence of other sexual crimes has been recognized as having independent relevancy. Recent cases recognize that the problem cannot generally be solved by virtue of a mechanical rule of relevancy but, instead, is one of balance. McCormick on Evidence (2d Ed.), 190, p. 447, at p. 453, states: "[T]he problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility."
The trial court noted that in this case the crimes charged must, of necessity, be proved by circumstantial evidence and inference because of the lack of an eyewitness or a complete detailed statement of the defendant. The trial court's ruling on the defendant's motion in limine to exclude evidence of other crimes specifically stated: "The issue of mental competency bearing on the intent of the defendant in committing the alleged crimes, the marked similarity of design and motive of the other crimes and the closeness of the time period make the admissibility of the other crimes strongly relevant and overcome the prejudice and accumulation of evidence which results therefrom.
"The court further finds that the evidence of the various stolen automobiles is necessary to trace the course the defendant followed between the alleged other crimes which in the court's judicial discretion are admissible."
Evidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence or transaction, may be admissible. State v. Nielsen, supra. The evidence of other crimes in the case now before us constituted a continuous chain of evidence detailing the course of defendant's flight, and the patterned course of criminal conduct which was an integral part of it. The evidence of other crimes was relevant to prove motive, opportunity, and intent, and that relevance is greatly strengthened by the fact that all the other crimes occurred within a period of less than 72 hours after the crimes with which the defendant was charged. Not only was the evidence relevant on the issue of motive and intent, but it established plan, preparation, and a method of operation substantially similar, including the use of the same gun and the similar wounds in the neck and near the ear of the victims.
There was no abuse of discretion on the part of the trial court in admitting the evidence of other crimes here. The prejudicial effect on the defendant of the admission of the evidence of other crimes is clearly outweighed by the relevance of that evidence to prove the crimes with which the defendant was charged.
The defendant next contends that the photographs taken at the McGarry apartment in Lincoln and the Rowe farm in Iowa should not have been admitted because they were inflammatory, gruesome, and prejudicial, and that whatever relevance they may have had was outweighed by their prejudicial effect. We disagree.
Of the 22 photographs taken in Lincoln at the scene of the crimes charged, the majority of them were exterior and interior scenes showing only inanimate objects, and the defendant did not object to their admission. The defendant objected to the admission of seven photographs, only some of which might be said to be gruesome. Three of the photographs were of Catherine Brooks; one of the back of her head and showing a blood stain beneath it; the second was of her upper torso and back; and the third was a view of her entire body, partially obstructed by a chair. Two photographs of Patricia McGarry as found at the scene were admitted into evidence; one of the upper torso showing the blood-stained carpet and book beneath her head; and the other of her entire clothed body. Two post mortem photographs of her, one a right view and the other a left view, were also admitted to show the location of wounds. Some cumulative photographs were not received into evidence and only three of the challenged seven photographs might reasonably be said to be gruesome.
The photographs of the Iowa crime scene are substantially similar in nature to those taken at the scene of the Nebraska crimes. The majority are exterior and interior scenes, showing only inanimate objects and are not gruesome. There were three photographs showing three different views of the victim's body. One showed the wound on her wrist, one showed the wounds on the left side of her head, and one showed the body as it was found, with the shotgun wound in the side. The three photographs showed the condition of the body and the nature and extent of the wounds. One additional photograph of the victim's body was excluded.
The admission of photographs of a gruesome nature rests largely within the sound discretion of the trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect. State v. Freeman, 201 Neb. 382, 267 N.W.2d 544. Although it is true that the probative value of gruesome photographs should be weighed against the possible prejudicial effect before they are admitted, if a photograph illustrates or makes clear some controverted issue in a homicide case, a proper foundation having been laid, it may be received, even if it is gruesome. State v. Partee, 199 Neb. 305, 258 N.W.2d 634. In a homicide case, photographs of the victim, upon proper foundation, may be received in evidence for purposes of identification, to show the condition of the body, the nature and extent of wounds or injuries, and to establish malice or intent. State v. Dittrich, 191 Neb. 475, 215 N.W.2d 637.
The photographs admitted here were relevant and of direct probative value in establishing the various elements of the crimes charged. The court did not abuse its discretion in admitting the photographs into evidence.
The defendant next contends that the trial court erred in refusing to sustain a motion for a change of venue. The defendant contends that because of extensive publicity in the news media, virtually all the residents of Lancaster County had knowledge of the case, and many had formed opinions as to the guilt or innocence of the defendant. The defendant therefore argues that he could not receive a fair trial, nor could possible prejudice be cured by extensive voir dire examination.
The trial court held a hearing on the motion for change of venue prior to trial, at which time the results of an opinion survey conducted by two professional poll researchers and other evidence as to the nature and extent of pretrial publicity were introduced. The trial court reserved ruling on the motion pending the final selection of the jury. Extensive voir dire on jury selection extended over a period of 5 days, and the trial court then denied the defendant's motion for change of venue.
The record establishes that 11 of the 12 jurors recalled little about the publicity they had heard or read, and none had formed an opinion on the issue of the defendant's guilt. The twelfth juror at first indicated an opinion concerning some elements of the case, but also indicated confusion as to the voir dire questions and later responded that she did not have any opinion one way or the other. Upon questioning by the court she stated that she did not have a fixed opinion and that she could set aside any impressions she may have gotten from publicity and decide the case fairly on the evidence given in the courtroom. All the jurors indicated that they believed they could be fair and impartial jurors.
The defendant takes the position that extensive pretrial exposure of jurors to information and news accounts as to the crimes with which the defendant was charged is sufficient, standing alone, to deprive him of due process. That conclusion is unfounded. See Murphy v. Florida, 421 U.S. 794, 95 S.C. 2031, 44 L.Ed.2d 589.
The burden of showing essential unfairness must be sustained by the one who claims such injustice and seeks to have the result set aside. As the United States Supreme Court stated in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751: "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court."
In this state a motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court and its ruling will not be disturbed on appeal unless a clear abuse of discretion is shown. State v. Klatt, 187 Neb. 274, 188 N.W.2d 821. While there was extensive pretrial publicity in the case now before us, we believe the record supports the action of the trial court in denying the motion for a change of venue and there was no abuse of discretion.
Defendant next contends that the trial court erred in failing to sustain defendant's motion to suppress all statements, admissions, and comments obtained from the defendant by law enforcement officers. Essentially the argument centers upon the fact that the Miranda rights were not included on the tape recording of the defendant's statement, and the defendant testified that the Miranda rights were never read to him, and that he requested the presence of his attorney.
Two police officers specifically testified that the Miranda rights were read to the defendant prior to the statement, that he responded affirmatively to each of them, and that the defendant did not request a lawyer and consented to give the statement at that time. The defendant's argument is that because the giving of the Miranda rights was not included on the tape recording, the absence from the recording is conclusive evidence that the rights were not given. Two police officers not only testified affirmatively that the Miranda rights were given, but explained why the tape recorder had not been turned on at the outset of the interrogation.
In this state the admission in evidence of a statement or confession constitutes the trial court's independent determination that the statement was voluntarily made. See State v. Davis, 180 Neb. 830, 146 N.W.2d 220, cert. den., 386 U.S. 998, 87 S.Ct. 1320, 18 L.Ed.2d 348. A finding by the trial court that a statement of an accused is voluntary will not ordinarily be set aside on appeal unless the finding is clearly erroneous. State v. Medina, 189 Neb. 765, 204 N.W.2d 785. The trial court's finding of voluntariness is supported by the record and is not erroneous.
The defendant asserts that he was denied a fair trial and due process of law because of the State's prejudicial misconduct in withholding evidence favorable to the defendant in direct violation of the trial court's order concerning discovery and disclosure. In response to defendant's pretrial motions for disclosure and discovery, the trial court ordered the State to provide to the defendant for inspection and copying or photographing: (1) The defendant's statement; (2) the defendant's prior criminal record, if any; (3) the names and addresses of all witnesses on whose evidence the charge is based, including any witnesses which the prosecution intends to use in rebuttal; (4) the results and reports of physical and mental examinations, and of scientific tests or experiments made in connection with this particular case; and (5) documents, papers, books, accounts, letters, photographs, objects, or other tangible things of whatsoever kind or nature which could be used as evidence by the State.
Defendant complains of violations which involve documents under paragraph 5 of the order and center around 18 police investigative reports which contained, in many instances, summaries of statements of witnesses as well as inferences or conclusions of officers as to the validity and veracity of portions or all of the witnesses' statements. The defendant asserts that if the testimony of a witness at trial differed in any respect from the statement as reported in the police report, the State should have delivered the police report to the defendant prior to trial. Such a conclusion is wholly unwarranted. At the hearing on defendant's motion for new trial, the alleged violation of the discovery order was raised and evidence introduced, and the trial court, on this issue, specifically found: "Nothing in the exhibits appears to be materially at odds with the testimony given at the trial. Those who testified were subjected to cross-examination at length by defendant's counsel or were called as witnesses for the defendant. No showing is made that information in the police reports could have been used to impeach any witness." The record fully supports that conclusion, and also establishes without serious question that the information in the police reports was not exculpatory or a mitigation of the degree of the offenses which would have been required to have been disclosed by the prosecution.
The defendant's position is that if a defendant has made a general motion for discovery and disclosure which has been granted in the sense that it covers documents of whatsoever kind or nature which could be used as evidence by the State, the State is required to produce for the defendant anything which might aid in his defense. We can find no support for such a contention. In Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706, the United States Supreme Court said: "We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." In a similar vein, this court said: "We have not yet reached the point in this state where the county attorney is required to give his entire work product to the defense." State v. Williams, 183 Neb. 257, 159 N.W.2d 549.
In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, the United States Supreme Court said: "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense."
In State v. Isley, 195 Neb. 539, 239 N.W.2d 262, this court said: "In a criminal case, the trial court is vested with broad discretion in considering discovery requests of defense counsel and error can be predicated only upon an abuse of such discretion." There was no abuse of discretion here.
The defendant assigns as error the trial court's refusal to instruct the jury with regard to the consequences of an acquittal by reason of insanity. The recent case of State v. Reitenbaugh, 204 Neb. 583, 284 N.W.2d 19, has determined the issue adversely to the defendant. In that case we held: "It is not error to refuse to instruct a jury in a criminal case of the consequences of a verdict of not guilty by reason of insanity."
Defendant also assigns as error the trial court's failure to dismiss or to direct a verdict in favor of the defendant as to the first degree sexual assault count. For almost a century it has been the rule in this state that: "It is only where there is a total failure of competent proof in a criminal case to support a material allegation in the information, or where the testimony adduced is of so weak or doubtful a character that a conviction based thereon could not be sustained, that the trial court will be justified in directing a verdict of not guilty." State v. Webb, 197 Neb. 662, 250 N.W.2d 625.
While the evidence in this case may be entirely circumstantial as to the sexual assault charge, there can be no real doubt that it was more than sufficient to go to the jury, and the trial court did not err in overruling the motion for directed verdict.
Finally, the defendant contends that the sentence of death is excessive relative to the facts of the case under the applicable statutory considerations.
Following the introduction of evidence at a sentencing hearing, the three-judge panel specifically found that the following aggravating circumstances were present: (1) That defendant had been previously convicted of another crime involving the use of threat or violence to the person, and had a substantial history of serious assaultive criminal activity; (2) that the murder of Catherine M. Brooks was committed in an apparent effort to conceal the identity of the perpetrator of a crime, but that the murder of Patricia McGarry was not; (3) that both murders were especially heinous, atrocious, cruel, and manifested exceptional depravity by ordinary standards of morality and intelligence and totally without any regard for human life; and (4) that at the time the murder was committed the defendant also committed another murder.
The sentencing panel found as the single mitigating circumstance that the defendant possesses an antisocial personality which, with his intoxication from the use of alcohol and drugs and emotional disturbance at the time he committed the murders, did, in some manner, diminish the defendant's capability to conform his conduct to the requirements of the law, but not to such an extent as to excuse him for the legal consequences of his conduct in the commission of the crimes.
The sentencing panel further found that the aggravating circumstances outweighed any mitigating circumstances. The panel then imposed the death penalty on each count of first degree murder.
The procedures of the sentencing panel complied fully with the statutory standards and specific procedures applicable to trial courts in cases of conviction for murder in the first degree. See Chap. 29, art. 25, R.R.S. 1943, and R. S. Supp., 1978.
Chapter 29, article 25, includes the provisions contained in L.B. 711, Laws of 1978, now codified as sections 29-2521.01 et seq., R. S. Supp., 1978, which apply primarily to the method of imposition of death sentences in the trial court and review of such sentences by the Supreme Court. The expressed purpose of L. B. 711 is to apply scrupulous standards of fairness to the imposition of the death penalty to insure that the death penalty should be applied uniformly and not arbitrarily.
Sections 29-2521.02 and 29-2521.03, R. S. Supp., 1978, provide that the Supreme Court shall, within a reasonable time after July 22, 1978, review and analyze all cases involving criminal homicide committed on or after April 20, 1973, and that the Supreme Court, upon appeal, shall determine the propriety of the sentence in each case involving a criminal homicide "by comparing such case with previous cases involving the same or similar circumstances. No sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances." In the context of Chapter 29, article 25, the word "sentence" in section 29-2521.03, R. S. Supp., 1978, is construed to mean a sentence of death, and the provisions of that section directing the determination by the Supreme Court of the propriety of a "sentence" by comparison with previous cases are applicable only in a case where a sentence of death has been imposed.
A primary foundation, basic to the review of the statutory provisions referred to, is the fact that in this state first degree murder is the only crime for which the penalty of death can be imposed. The provisions of Chapter 29, article 25, dealing with sentencing, apply only to a conviction for first degree murder under section 28-303, R. S. Supp., 1978. See 29-2519 and 29-2520, R. S. Supp., 1978. The Nebraska act, L.B. 711, Laws of 1978, was patterned after the Georgia act which requires the Georgia Supreme Court to review death sentences and determine: "Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." 27-2537, Georgia Code. That identical language appears in section 29-2522(3), R. S. Supp., 1978, which applies primarily to initial sentencing in the trial court. The Georgia Supreme Court has restricted its review and comparison of "similar" cases to cases involving crimes for which the death penalty is permissible. It should be noted also that in Georgia the death penalty is permissible for more than one specific crime. The review and comparison by the court has been restricted to cases involving the identical crime — felony murder against felony murder, rape against rape. Coley v. State, 231 Ga. 829, 204 S.E.2d 612. The Georgia cases reflect the obvious fact that it is a practical impossibility to make any meaningful comparison of a death sentence in a first degree murder case with any sentence imposed for another crime for which the death sentence is not authorized.
There is language in at least two sections of L.B. 711, Laws of 1978, directing the Supreme Court to review and analyze "all criminal homicides." If the language be interpreted to extend beyond first degree murder convictions, problems relating to the exercise of prosecutorial discretion in homicide cases and the exercise by juries of the decisional power of determining guilt or innocence or fixing degrees of culpability in homicide cases are all involved. To interpret that language of L.B. 711 literally would create insurmountable constitutional problems. In view of the disposition made here, it is unnecessary to discuss constitutional issues.
For all these reasons L.B. 711, Laws of 1978, codified as part of Chapter 29, article 25, R. S. Supp., 1978, will be construed to require the Supreme Court to review and analyze only cases involving a conviction for first degree murder committed on or after April 20, 1973. Where a death sentence has been imposed, and this court is required to determine the propriety of that sentence in such case, the determination of which previous first degree murder cases involve the same or similar circumstances and are therefore comparable will be made by this court on a case-by-case basis.
Our review and analysis includes first degree murder convictions for offenses committed on or after April 20, 1973, including cases presently pending in this court on appeal. Thirty-two cases are included in that review in addition to the case now before us. Twenty-one cases have been before this court previously on appeal. Eight cases were not appealed. Three additional cases are now pending in this court on direct appeal. Seven death sentences are now pending including the case now before us. The remaining twenty-five cases involve life sentences. The cases reviewed and analyzed are set out in the addendum to this opinion.
Analysis of all these cases indicates that a callous, coldblooded, and cruel disregard for human life, coupled with convictions for previous crimes involving violence to the person, has tended to be given great balancing weight as aggravating circumstances, and that extreme youth, coupled with the absence of any substantial record of previous criminal conduct, has tended to be given great balancing weight as mitigating circumstances. In all the death penalty cases previously affirmed or now pending in this court, each has involved at least three separate and distinct statutory aggravating factors and only one or no statutory mitigating factors. The case now before us also fits that pattern, and, in addition, is the only death sentence case now pending which involves multiple first degree murders.
It would be virtually impossible to find two murder cases which are the same in all respects. We find no case in which a life sentence was given which involves the same or similar circumstances to that of the case at bar. Any objective weighing and balancing of aggravating and mitigating circumstances and comparison to the other death penalty cases now pending establishes that the death sentence in the case now before us is not excessive or disproportionate to the death penalties imposed in the other death penalty cases. If sufficient aggravating circumstances existed in those cases to justify the imposition of the death penalty, then the merciless, callous murder of two defenseless women in this case provided ample justification for the death penalty here.
The defendant's remaining assignments of error are without merit, and the convictions and sentences are affirmed.
AFFIRMED.
ADDENDUM
First degree murder cases analyzed and reviewed as of November 1, 1979.
CASES APPEALED AND REPORTED
State v. Casper, 192 Neb. 120, 219 N.W.2d 226. State v. Wilson, 192 Neb. 435, 222 N.W.2d 128. State v. Nokes, 192 Neb. 844, 224 N.W.2d 776. State v. Russell, 194 Neb. 64, 230 N.W.2d 196. State v. Harris, 194 Neb. 74, 230 N.W.2d 203. State v. Lytle, 194 Neb. 353, 231 N.W.2d 681. State v. Ell, 196 Neb. 800, 246 N.W.2d 594. State v. Sims, 197 Neb. 1, 246 N.W.2d 645. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849. *State v. Rust, 197 Neb. 528, 250 N.W.2d 867. *State v. Holtan, 197 Neb. 544, 250 N.W.2d 876. State v. Simants, 197 Neb. 549, 250 N.W.2d 881. State v. Record, 198 Neb. 530, 253 N.W.2d 847. *State v. Peery, 199 Neb. 656, 261 N.W.2d 95. State v. Beans, 199 Neb. 807, 261 N.W.2d 749. State v. Scott, 200 Neb. 265, 263 N.W.2d 659. State v. Simpson, 200 Neb. 823, 265 N.W.2d 681. State v. Prim, 201 Neb. 279, 267 N.W.2d 193. State v. Fuller, 203 Neb. 233, 278 N.W.2d 756. State v. Nielsen, 203 Neb. 847, 280 N.W.2d 904. State v. Bennett, 204 Neb. 28, 281 N.W.2d 216.
CASES NOT APPEALED TO SUPREME COURT
State v. Jimmie Ray Anderson Dawson County — District Court Sentence 7/26/73. Case No. 14391
State v. Kelvin Anderson Douglas County — District Court Sentence 9/25/78. Doc. 102, p. 85
State v. Brown Douglas County — District Court Sentence 3/25/74. Doc. 88, p. 625
State v. Floyd Hamilton County — District Court Sentence 5/16/78. Doc. 24, p. 196
State v. Hatcher Douglas County — District Court Sentence 4/14/78. Doc. 101 p. 321
State v. Marshall Lancaster County — District Court Sentence 3/13/78. Doc. 48, p. 262
State v. Rowert Platte County — District Court Sentence 12/8/77. Case No. 2805
State v. Schaeffer Hall County — District Court Sentence 9/30/77. Doc. 28, p. 279.
CASES PENDING ON APPEAL IN SUPREME
COURT NOVEMBER 1, 1979.
*No. 42204 — State v. Otey Douglas County — District Court Sentence 6/20/78 Doc. 101, p. 489
*No. 42301 — State v. Anderson Douglas County — District Court Sentence 8/24/78 Doc. 99, p. 392
*No. 42302 — State v. Hochstein Douglas County — District Court Sentence 8/24/78 Doc. 99, p. 394.
*Death sentence pending.