On the morning of January 11, 1984, a teacher at the Aldersgate Preschool in Sarpy County, Nebraska, noticed a car pull up close to the school windows. The driver stopped, looked at her and drove away, then came back a few minutes later and sat watching from a short distance. She wrote down his license number. By then two boys from the area were dead. Danny Joe Eberle, thirteen, had disappeared on his paper route in Bellevue on September 18, 1983, and was found three days later, bound and stabbed, several miles south of town; Christopher Walden, twelve, disappeared on December 2 and was found by hunters three days after that in a stand of trees at Giles and Cornhusker Roads, with a figure like a plant carved into his chest. The plate led to John J. Joubert IV, a twenty-year-old airman at Offutt Air Force Base.
Five courts’ opinions follow him from there, three in Nebraska and two in Maine. Joubert pleaded guilty to both Nebraska murders, and a three-judge panel sentenced him to death on each; the Nebraska Supreme Court affirmed in 1986, in an opinion that sets out his own account of the killings and weighs whether they were especially heinous, atrocious or cruel. In 1990 it rejected his post-conviction claims, the most unusual being that one of his lawyers had earlier handled the adoption of a daughter for Danny Joe Eberle’s parents and had telephoned the boy’s mother to ask whether the family would accept a life sentence. The last Nebraska opinion, in 1994, refused to set an execution date while a federal stay was in force.
The Maine opinions concern Richard Stetson, eleven, who was stabbed and strangled while jogging around Back Cove in Portland on August 22, 1982, a little over three months before Joubert left Portland for the Air Force. He was indicted in Maine in January 1986, carried there from Nebraska’s death row under an agreement between the two governors, and convicted by a Lincoln County jury in October 1990. The Supreme Judicial Court upheld the conviction in 1992, deciding whether a bite mark on the boy’s leg could be compared with Joubert’s teeth, whether a witness who saw Stetson that evening could testify after being hypnotized by the police, and whether a Nebraska journalist could repeat what Joubert told him in prison: “I can’t lie to you. I can’t say I didn’t do it.” Nebraska executed Joubert in the electric chair on July 17, 1996.
These are published opinions of the Nebraska Supreme Court and the Supreme Judicial Court of Maine. The two direct appeals, Nebraska in 1986 and Maine in 1992, review the evidence and uphold the convictions, and those are findings. The Nebraska convictions rest on Joubert’s guilty pleas, so the account in the 1986 opinion is largely his own confession as accepted by the sentencing panel, not evidence tested at a trial. The 1991 Maine ruling is about whether Maine had to send him back to Nebraska, and the 1994 Nebraska ruling is about the federal stay; neither touches guilt. The execution in 1996 comes after the last opinion here and is not described in it.
Court opinions are government work and free to reproduce. The three boys keep their names, and so do the pathologists, psychiatrists, the Nebraska journalist who testified at the Maine trial, the lawyers and the judges. Danny Joe Eberle’s parents are reduced to J.E. and L.E., and the Maine witness who was hypnotized to P.V. The Maine opinions call the victim both Richard and Ricky Stetson, and we have left each as it stands.
The text is the Harvard Law School Library’s scan of the North Western and Atlantic Reporters and has not been spell-checked. We closed up three words split across a line and changed nothing else.
State of Nebraska, appellee, v. John J. Joubert, appellant.
399 N.W.2d 237
Filed December 29, 1986.
No. 84-842.
Thomas J. Garvey, Sarpy County Public Defender, Owen A. Giles, Special Assistant Public Defender, and, on brief, James P. Miller, for appellant.
Robert M. Spire, Attorney General, and Melvin K. Kammerlohr, for appellee.
Krivosha, C.J., Boslaugh, White, Hastings, Caporale, Shanahan, and Grant, JJ.
[OPINION BY Per Curiam. type=majority]
Per Curiam.
The appellant, John J. Joubert, entered a plea of guilty to two counts of first degree murder in violation of Neb. Rev. Stat. § 28-303 (Reissue 1985). Each murder count is a Class I or Class IA felony, punishable by either life imprisonment or the imposition of the death penalty. A three-judge panel was convened pursuant to the provisions of Neb. Rev. Stat. § 29-2520(2) (Reissue 1985). The panel held a hearing and concluded that a sentence of death should be imposed on each count. Joubert appeals to this court, raising issues with regard both to his conviction as well as to his sentence. We affirm.
The facts of the case are distressing at best, but must be related in some detail for an understanding of the case. While delivering newspapers in Bellevue, Nebraska, early on the morning of Sunday, September 18,1983, Danny Joe Eberle, 13 years of age at the time, disappeared. Following a widespread search of the area conducted by local and area law enforcement personnel with the aid of the FBI, young Eberle’s body was found several miles south of Bellevue, Nebraska, during the late morning hours of September 21, 1983. When his body was recovered, both his hands and feet were bound together. His mouth was covered with tape, and he was wearing only a pair of undershorts. A number of stab wounds appeared on his body, including one to the back of his neck. Additionally, a photograph in the record disclosed a gaping wound covering the full length of the back of the left thigh and approximately 11 inches wide, which appeared as if the flesh had been cut away clear to the bone. Although an investigation continued for some time, Danny Joe Eberle’s murderer was not then apprehended.
A second young boy, Christopher Walden, then 12 years of age, in the early morning hours of Friday, December 2, 1983, also disappeared. His body was subsequently found by hunters during the late afternoon hours of December 5,1983, in a small wooded area located at the intersection of Giles and Cornhusker Roads in Sarpy County, Nebraska. He, too, was clad only in a pair of undershorts. His body exhibited a number of stab wounds. Also, his throat was slashed, and the full length and breadth of his chest and abdomen was covered with what looked like a representation of a large plant, including the stem and seven leaves. This figure appeared to have been rather carefully and deliberately carved into the skin and flesh with a sharp knife. Further investigation continued, and still no one was apprehended.
Then, on the morning of January 11,1984, at approximately 8:30 a.m., a teacher at the Aldersgate Preschool in northeast Sarpy County was preparing for the day. She observed a car driven by a person she would later identify as Joubert approach close to the windows of the school. He stopped momentarily, looked at the teacher, and then turned around and drove off. Several minutes later, she noticed he had driven back. He did not drive up to the window this time but, rather, sat a short distance from the school, looking at her for a few seconds.
Concerned, she wrote down the license plate number of the vehicle and watched it drive away. A few minutes later, the vehicle returned and drove up to the building again. Joubert got out of the vehicle and came to the door of the school, asking for directions. She gave him the directions he requested. Claiming he could not understand her directions, he asked to use the phone. She said there was no phone inside the school. At that time he pushed her back inside the room and said to her, “Get back in there or I’ll kill you.” The teacher pushed Joubert out of her way and ran by him down the street to a nearby home where she called the police.
She gave the police the license number of the car she had seen and also indicated that the person in the car looked like the composite sketch of the suspected killer of both young boys that had appeared for approximately a month in the local newspaper.
The police conducted a preliminary investigation and, by matching license numbers, picked up Joubert, a member of the U.S. Air Force, at Offutt Air Force Base located in Sarpy County.
Initially, the officials who questioned Joubert talked to him only about the incident at the Aldersgate Preschool. Soon thereafter, however, Joubert made some spontaneous admissions to those questioning him concerning the Eberle/Walden homicides. Eventually, Joubert gave a tape-recorded confession in which he filled in those facts of the Eberle and Walden slayings that the investigators had been unable to find.
Joubert told the officers that he was driving around Bellevue in his personal car, a 1979 Chevrolet Nova, in the early morning hours of September 18, 1983. He pulled up to a convenience store to get something to drink. At the time, it was still dark. He was leaning against his car, sipping his drink in the parking lot of the store, when he noticed a young boy fixing his newspapers for the day. When the boy left the parking lot, Joubert followed him. He drove past the boy and parked in a parking lot two blocks further. He got out of his car, carrying rope, some tape, and a knife, and hid behind a car or tree, where he waited. As Eberle was walking back to his bike after delivering a paper, he spoke to Joubert, who returned the greeting. Then, as Eberle turned his back on Joubert to get on his bike, Joubert grabbed him, put his hand over his mouth and a knife to his throat, and told him to come with him and not to make any sounds. Eberle did not struggle and returned to the parking lot with Joubert. Joubert ordered Eberle to lie down on his stomach next to the car. It was still dark and no one could see them. When Eberle lay down, Joubert tied his hands behind his back and then tied his feet together and placed some tape over his mouth. When all of this was done, Joubert picked Eberle up and placed him in the trunk of the car and closed the top. He then drove off.
Joubert told the officers he then drove to a somewhat secluded place south of Bellevue, where he took Eberle out of the trunk and laid him in a ditch on the side of the road. After closing the trunk of the car, Joubert carried Eberle about 10 or 20 feet off the road into a cornfield. He told Eberle to roll over on his stomach. When Eberle did so, Joubert untied Eberle’s hands, told him to remove his shirt, and told him to roll over on his back. Joubert then untied Eberle’s feet and took his pants off. At this time the tape was beginning to come off of Eberle’s mouth, just enough for him to talk. Joubert again pulled out the knife, and Eberle pleaded, “Don’t, please don’t kill me.” Eberle struggled a bit, so Joubert stabbed him in the back. At this point Eberle told Joubert that if he, Joubert, would take Eberle to the hospital, Eberle would not say anything. Joubert said he did not believe Eberle, and, so, at that time he stabbed him again a couple of times. He then sliced the back of Eberle’s neck. When Eberle ceased moving, Joubert, to make sure that he was dead, sliced the back of Eberle’s left leg. The leg did not bleed. Joubert dragged Eberle’s body a few yards away from the road and concealed it in the weeds. He wiped the knife clean with Eberle’s shirt, returned to his car, and went back to his barracks, where he napped.
Dr. Blaine Roffman, a pathologist, conducted the autopsy on Danny Joe Eberle. He testified that there were a total of 11 stab wounds on Eberle’s body. Eight of those wounds were penetrating stab wounds, three less deep. More importantly, however, Dr. Roffman testified that 9 of the 11 wounds were inflicted before death. Dr. Roffman was certain that death was not instantaneous. In addition, there was some hemorrhaging on the top of the skull, which must have resulted from some type of traumatic blow to the head. This very likely occurred when Eberle was being jostled about in the trunk of Joubert’s car.
Dr. Roffman concluded, “I think he was aware — the victim was aware of the circumstances, and in my opinion, that was undue pain and suffering.”
The record further discloses that Joubert additionally related to the investigating officers that on the morning of December 2, 1983, he again left his barracks between 6 and 6:30 a.m. and began cruising in his car. He had taken from his locker the same knife with which he had murdered Danny Joe Eberle.
He first drove around bus stops, looking for people. Not finding anyone alone, he began to drive past the neighborhood schools. In the area of the Pawnee school, he spotted Christopher Walden walking to school. He parked his auto at the intersection of 48th and Margo and waited until Walden had walked very close to his car. Joubert then got out of the car, walked toward Walden, and got behind him. When he was very near to Walden, he called to him and told him to stop for a minute. There was no one else around. Joubert showed Walden his knife but did not pull it out. Joubert told Walden to come with him and to be quiet or Joubert would kill him. When Walden looked uncertain for a moment, Joubert put his hand on Walden’s shoulder and led him to the car. When they got to the car, another car passed, so Joubert pretended that he and Walden were having a conversation. At that point Joubert told Walden to get into the car and to lie down on the floor in the front passenger seat. As Joubert started to drive off, Walden began crying. Joubert related to the investigators, “I was driving down Margo and I was thinking about letting him go .... He was on the floor in the front passenger seat. I just figured that if I did let him go he would probably tell someone and then what would happen to me.”
Joubert drove Walden to another isolated, secluded spot. After making sure there was no one else in the area, he ordered Walden out of the car. It was cold and there was snow on the ground. They began walking along some railroad tracks. Joubert promised Walden that if Walden just followed orders and did everything that Joubert told him to do, nothing would happen to him. He told Walden to strip down to his underwear and lie down on his back. Evidently, because of the snow, Walden balked at this command, and, so, according to Joubert, he placed his hands on Walden’s shoulders, around his neck, and “encouraged” him to lie down on his back. When he had done that, Joubert knelt on Walden’s chest and started strangling him. Walden began struggling and, according to Joubert, looked like he was in pain. At that point, as Walden struggled to get away, Joubert took out his knife and stabbed Walden a couple of times in the back and then sliced his throat. When Joubert thought that Walden was dead, he sliced Walden’s stomach a couple of times just to make sure. Joubert then left the area, drove straight to the barracks, threw the knife into a dumpster, and went back to his room, where he went to sleep.
Dr. Jerry Wilson Jones, another pathologist, conducted the autopsy on Christopher Walden. According to Dr. Jones, Walden was stabbed a total of seven times. Two of the wounds had penetrated deeply, five had not. Dr. Jones testified that death did not occur instantaneously but that Walden was alive and cognizant for a period of time and then gradually lapsed into a coma and eventually died. In Dr. Jones’ opinion, Walden could have been tortured in the manner in which he was killed. He further believed that Walden suffered during this period of time.
Joubert contends that three errors were committed by the district court prior to sentencing and that six errors were committed by the sentencing panel following his plea of guilty. With regard to the first group of assigned errors, Joubert maintains, in essence, that his pleas of guilty were not made freely, voluntarily, and knowingly in that he was induced by the district judge to enter pleas of guilty. The errors allegedly committed by the sentencing panel were (1) in finding, with respect to the Walden murder, that Joubert had a substantial history of serious assaultive or terrorizing criminal activity; (2) in finding that both murders were committed in an effort to conceal his identity; (3) in finding that both murders were “especially heinous, atrocious, cruel, and [sic] manifested exceptional depravity by ordinary standards of morality and intelligence”; (4) in finding sufficient aggravating circumstances existed to justify the imposition of the death penalty; (5) in failing to find mitigating circumstances sufficient to outweigh the aggravating circumstances; and (6) in limiting the mitigating effects of Joubert’s guilty pleas when considering aggravating and mitigating circumstances.
We turn first to the questions involving whether the pleas made by Joubert and accepted by the court were made freely, voluntarily, and knowingly and whether the district court made promises which misled Joubert regarding either the pleas or the sentences. The law regarding the requirements which must be met before a guilty plea in a criminal case can be accepted is clear and uncontroverted. In State v. Turner, 186 Neb. 424, 427, 183 N.W.2d 763, 766 (1971), in discussing the necessary standard for accepting a plea of guilty, we said: “ ‘The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” The record must show that a plea of guilty was made intelligently, voluntarily, and understandingly. Further, the plea must be based upon sufficient facts to justify the court’s finding the defendant guilty beyond a reasonable doubt. When that appears, the court may accept the plea.
In State v. Jackson, 220 Neb. 656, 658, 371 N.W.2d 679, 681 (1985), we recently observed: “ ‘Before accepting a guilty plea a judge is expected to sufficiently examine the defendant to determine whether he understands the nature of the charge, the possible penalty, and the effect of his plea.’ ”
In the instant case Joubert argues that, sometime before entering his pleas, the trial court promised him a hearing on a motion to suppress and failed to keep that promise. Therefore, Joubert argues, he is entitled to have his pleas withdrawn and the case remanded for trial. Our close examination of the record fails to support Joubert’s contention as to what in fact took place and indicates beyond question that Joubert freely, voluntarily, and intelligently entered his pleas of guilty to the two charges of murder.
The record discloses that after pleas of not guilty were entered, Joubert’s attorney filed a motion to suppress the statements previously given by Joubert to the authorities. The district court deferred hearing the motion and advised Joubert’s attorney on the record that “any hearings on alleged statements or confessions would be deferred until such time as a jury in the case would be empaneled and sequestered.” Apparently, the district court was concerned that holding a suppression hearing before the jury was empaneled and sequestered would result in undue pretrial publicity and would interfere with Joubert’s opportunity for a fair trial. Joubert’s lawyer was somewhat concerned about delaying the hearing and indicated that fact to the district judge. Apparently, his concern was that he felt he could not encourage Joubert to consider any plea agreement until he knew whether the statements would be admitted or suppressed. The district court advised Joubert’s attorney, on the record, that
if in fact there is ever a plea agreement that you may enter into where a plea of guilty to some charges or lesser charges is offered, at that point in time what I would do is not receive it, but consider your motion to suppress in conjunction with the hearing on the underlying facts to support the plea agreement.
The district court also advised Joubert’s attorney that if, at such a hearing, the court determined that the statements should be suppressed, Joubert would be permitted to withdraw his pleas. Though Joubert’s attorney appeared to be reluctant, he ultimately agreed with the district court that such procedure could be followed.
Joubert argues that this, in some way, was a promise relating to a plea bargain and was intended to induce Joubert to enter pleas of guilty. The record does not support that contention. The district court was not encouraging Joubert to do anything, but merely was advising his counsel that if Joubert stayed with the entry of pleas of not guilty and a jury trial was required, a hearing on the motion to suppress would be held after the jury had been selected and sequestered. If, however, Joubert waived the jury trial and tendered pleas of guilty pursuant to a plea bargain, before the pleas of guilty would be accepted by the district court a hearing on the suppression motion would be conducted. The district court’s explanation of the procedures to be followed was clearly in the alternative and was intended to explain what would be done, depending upon what Joubert elected to do. The choices were still clearly Joubert’s, and the explanation by the district court cannot be said to have been a promise conditioned upon pleas of guilty. Joubert was told he could have a hearing on the suppression motion before trial, regardless of what pleas he entered.
The record discloses that subsequently, on July 3, 1984, pursuant to a plea bargain whereby the State dismissed two kidnaping charges and two counts of using a knife to commit a felony, Joubert pleaded guilty to the first degree murder charges then pending. The decision to plead guilty was clearly Joubert’s, and nothing in the record suggests that Joubert’s decision had anything to do with earlier statements made by the district court regarding the suppression hearing.
In any event the record discloses that, before accepting the pleas of guilty, the district court examined Joubert at great length with regard to both the pleas and the pending motion to suppress. The record discloses that the district court asked Joubert a series of questions necessary to ascertain whether the pleas were being made freely, voluntarily, intelligently, and knowingly. The district court further advised Joubert that, by tendering the pleas of guilty, Joubert would waive any technical defects in the proceedings up to the time of the pleas and would further waive any pending motions that might have been of benefit to Joubert. Specifically, the court said:
THE COURT: All right. And now more specifically, Mr. Joubert, let me ask you, do you understand there is a motion pending to suppress statements or confessions that you had allegedly made at the time of your arrest? Do you understand that if I accept the pleas of guilty, that that motion likewise is gone and you can never raise that again as an issue?
MR. JOUBERT: I understand.
Neither Joubert nor his counsel in any way indicated to the court that he did not intend to waive the motion to suppress or desired at that point to have a hearing on the motion before the court accepted the pleas of guilty.
The record further reflects that the State established a factual basis for Joubert’s pleas. In particular, the State described in detail the facts from the time of Joubert’s apprehension up until the time of his confession. No objections were made by Joubert or his counsel to any of the facts recited by the State. When the State completed advising the court of the facts, the district judge again asked Joubert several questions. In particular, he asked:
THE COURT: Okay. I touched earlier, Mr. Joubert, upon the various motions that you would waive if I accept the plea of guilty, and then Mr. Wellman related fully and I have marked in evidence and received Exhibits 32 and 33, which as recited and then related in substance, that those are full confessions to police officers relating to the murders of these two boys. Are you satisfied in your own mind that you gave those statements to the officers voluntarily?
MR. JOUBERT: Yes, Your Honor.
THE COURT: Did they make any promises to you before you gave those statements?
MR. JOUBERT: No, Your Honor.
THE COURT: Did they indicate that you were under suspicion or under arrest for these crimes and that you had the right to have counsel present?
MR. JOUBERT: Yes, they did.
THE COURT: And did they indicate to you that if you could not afford counsel, the Court would appoint one for you before there would be any further questioning?
MR. JOUBERT: Yes, they did.
THE COURT: Did they indicate to you that you had a right to remain silent and not answer any of their questions?
MR. JOUBERT: Yes.
THE COURT: And prior to the time they even spoke with you did they identify themselves as law enforcement officers, be it police, sheriff’s officer or FBI?
MR. JOUBERT: Yes, they did.
Further, the district court asked Joubert’s counsel whether he was satisfied that the statements or confessions or admissions that had been made by Joubert were voluntarily made and that Joubert was accorded his constitutional rights prior to making those. Counsel answered, “Yes, Your Honor. I think they’re clearly admissible.” It was only then that the district court accepted each plea of guilty and found Joubert guilty of murder in the first degree on both counts.
Joubert’s argument that there was some promise of a hearing which induced him to enter pleas of guilty to murder or that the alleged promises made by the district court which induced him to enter his pleas were unfulfilled is without any basis in fact. Not only does the record make it clear that Joubert freely and voluntarily waived the right to a hearing on the motion to suppress, it is also clear that, though Joubert had an opportunity to present evidence to the district court regarding the confessions, he freely and voluntarily admitted that the confessions were constitutionally obtained and knowingly and voluntarily given. Had Joubert or his counsel wished to have a separate Jackson v. Denno-type hearing concerning the admissibility of the confessions, he was obligated to advise the court when the district court inquired as to Joubert’s understanding of the guilty pleas. It is inconsistent for Joubert, on the one hand, to admit the confessions were freely and voluntarily given while, on the other hand, maintaining that a hearing to suppress the confessions would have been successful.
It is difficult to imagine what evidence could have been presented to the district court which would have caused the district court to suppress the confessions in light of the statements and admissions made by both Joubert and his attorney regarding the confessions. There is no basis for this assignment, and it is overruled.
Joubert further argues that the district court promised him life sentences in return for his pleas of guilty, and failed to fulfill that promise. Again, the record does not support that contention. The record discloses that after Joubert tendered his pleas of guilty and before the district court accepted the pleas, the district court said:
THE COURT: You understand... that some consideration would be given by myself or the sentencing judges to the money-saving expense of trial... that comes with any pleas of guilty....
MR. JOUBERT: Yes.
(Emphasis supplied.) The words themselves do not appear to have been a promise or an inducement in any manner to the previous tender of guilty pleas; the plain meanings of the words provide nothing more than a statement that “some consideration” would be given. While it may have been better had the district court not attempted in any manner to advise as to the factors to be considered, in view of the fact that the hearing on sentencing had not yet been held, advising counsel and Joubert that “some consideration” would be given by reason of the pleas of guilty falls far short of any suggestion of a promise or inducement to enter the pleas of guilty. The record clearly establishes that Joubert’s pleas of guilty were made freely, voluntarily, intelligently, and understandingly and free of any promises or inducements.
Furthermore, the record discloses that the sentencing panel did consider that Joubert’s pleas of guilty were mitigating factors and did give “some consideration” to that fact. The sentencing panel, after giving some consideration to the pleas of guilty, found that the mitigating circumstances did not approach or outweigh the aggravating circumstances. Any purported agreement was kept. The pleas were properly accepted, and the motion to withdraw the pleas was properly denied.
That leaves us with the errors relating to the sentences of death. As we earlier indicated, Joubert has raised six alleged errors in connection with the sentences. We shall address them individually in the order in which they are raised.
Neb. Rev. Stat. § 29-2522 (Reissue 1985) requires the sentencing court to proceed as follows:
After hearing all of the evidence and arguments in the sentencing proceeding, the judge or judges shall fix the sentence at either death or life imprisonment, but such determination shall be based upon the following considerations:
(1) Whether sufficient aggravating circumstances exist to 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.
Neb. Rev. Stat. § 29-2525 (Reissue 1985) requires the Supreme Court to review all cases in which the death penalty has been imposed.
What are aggravating and mitigating circumstances is, to a large extent, prescribed by statute, although, as noted above, the courts are required to consider any evidence in mitigation. See State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). Furthermore, the aggravating circumstances must be proved beyond a reasonable doubt. See, State v. Palmer, ante p. 282, 399 N.W.2d 706 (1986); State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). 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. Neb. Rev. Stat. § 29-2523(l)(Reissue 1985) defines aggravating circumstances as follows:
(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 history of serious assaultive or terrorizing criminal activity;
(b) The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a 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 law enforcement officer or a public servant having custody of the offender or another; or
(h) The crime was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws.
The mitigating circumstances, as defined by § 29-2523(2), are as follows:
(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 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 conduct or to conform his conduct to the requirements of law was impaired as a result of mental illness, mental defect, or intoxication.
These guidelines exemplify the type of standards which must be followed in order to avoid the indiscriminate application of the death penalty. Absent such guidelines, the imposition of the death penalty in a particular case must be set aside as being in violation of the U.S. Constitution as declared by the U.S. Supreme Court. See, State v. Palmer, supra; Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
With that background we review the record to determine whether the aggravating circumstances were established by evidence beyond a reasonable doubt.
The sentencing panel found that with regard to the Eberle crime, count I, there existed aggravating circumstances (l)(b) and (l)(d) and mitigating circumstances (2)(a) and (2)(c). The sentencing panel further found that because Joubert entered a plea of guilty, there existed an additional mitigating circumstance. With regard to the crime involving the Walden youth, count II, the panel found existing aggravating circumstances (l)(a), (l)(b), and (l)(d) and mitigating circumstance (2)(c), plus, again, the fact that Joubert pleaded guilty.
Once the existence of one or more aggravating circumstances has been found to exist, § 29-2522 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. See, State v. Palmer, ante p. 282, 399 N.W.2d 706 (1986); State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). In reviewing and balancing the aggravating circumstances against the mitigating circumstances, the sentencing panel concluded that the aggravating circumstances outweighed the mitigating circumstances and that Joubert should be sentenced to death for both murders.
In that regard Joubert maintains first that the evidence was insufficient to establish beyond a reasonable doubt the existence of aggravating circumstance (l)(a) in connection with the Walden murder (the second of the two), in that Joubert had a substantial history of serious assaultive or terrorizing criminal activity. The record establishes beyond a reasonable doubt that, at the time of the Walden murder, Joubert had “a substantial history of serious assaultive or terrorizing criminal activity.”
The facts in this case with regard to this issue are nearly identical to the facts in State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). In that case Carey Dean Moore was charged with the murders of two Omaha cabdrivers, 5 days apart. We held that the fact that Moore had killed someone prior to the murder for which he was sentenced to death was sufficient to establish the existence of an aggravating circumstance found in § 29-2523(l)(a) and that the sentencing panel properly considered this earlier murder in accordance with our prior interpretation in both State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977), and State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977).
Joubert next maintains that the evidence was insufficient to establish beyond a reasonable doubt the existence of aggravating circumstance (l)(b) in either case. Section 29-2523(l)(b) provides: “The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime.” We believe that the record establishes beyond a reasonable doubt that, in addition to whatever other reasons Joubert may have had for murdering, Joubert murdered both Eberle and Walden to conceal his identity as the perpetrator of the crime of kidnaping. The evidence is overwhelming in that regard.
With regard to the Eberle boy, Joubert admitted that after he had first stabbed Eberle in the back, Eberle asked that he be taken to a hospital and that if Joubert would take him to the hospital, he, Eberle, would not say anything. Joubert said, “I didn’t believe him so I stabbed him again a couple of times.” Obviously, he did not believe that Eberle would not disclose Joubert’s identity; therefore, it is clear that, despite any other reasons which may have been involved, one of the reasons for committing the murder was to conceal his identity as the perpetrator of the crimes of kidnaping and assault.
To the same effect, when speaking of the Walden murder, Joubert stated:
As I started up the car and I started driving off he started crying. I was driving down Margo and I was thinking about letting him go. ... He was on the floor in the front passenger seat. I just figured that if I did let him go he would probably tell someone and then what would happen to me.
Again, this is clear evidence that Joubert concluded that he could not let Walden go for fear that he would be identified, and, therefore, the murder was to conceal his identity as a murderer and kidnaper. It is clear that the panel was correct when it found that aggravating circumstance (l)(b) existed in both murders.
Next, Joubert maintains that the sentencing panel erred in finding that both components of § 29-2523(l)(d) applied, in that these murders were neither “especially heinous, atrocious, cruel” nor “manifested exceptional depravity by ordinary standards of morality and intelligence.” In support of his position Joubert argues that this case is identical to State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985), wherein this court held that the murder was not “especially heinous, atrocious, cruel.” To argue that the murders in the present case were identical to the murder in Hunt is to ignore the facts. The facts in the present case are clearly otherwise.
The sentencing panel in this case found with regard to § 29-2523(l)(d):
The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence. (Section 29-2523(l)(d)).
This aggravating circumstance describes in the disjunctive two separate situations which may operate in conjunction with, or be independent of, one another. The first is where the murder is especially heinous, atrocious, or cruel. In short, the first situation must be looked upon through the eyes of the victim and should be applied to cases where torture, sadism, or the imposition of extreme suffering exists. State v. Stewart, 197 Neb. 497, 250 N.W. 2d 849; State v. Rust, 197 Neb. 528, 250 N.W. 2d 867; and State v. Moore, 210 Neb. 457, 316 N.W. 2d 33.
Upon his abduction, Danny Joe Eberle’s hands and feet were tightly bound, surgical tape was placed over his mouth and he was put in the trunk of defendant’s automobile. He was then transported to the actual scene of the homicide several miles away and removed from the trunk of the automobile to face his abductor. His hands and feet were untied, and then retied in sequence in order for him to follow the defendant’s instructions on removing his outer clothes. It was during this period of time that the surgical tape covering the victim’s mouth had worked loose, and he asked the defendant if he was going to die. When the defendant replied, “Yes”, Danny attempted to roll away, the only means left to resist or escape. Defendant then inflicted the first stab wound. The victim then asked the defendant to take him to a hospital, and he (Danny) would not tell anyone. Defendant did not believe this statement, and proceeded with his murderous plan.
Danny Joe Eberle’s death resulted from loss of blood caused by one or more of nine antemortem stab wounds. Two additional wounds, one a deep wound to the left thigh, and one a deep wound to the left shoulder, were inflicted postmortem by the defendant. Dr. Roffman expressed an opinion that Danny Joe’s death could have been directly caused by either the stab wounds in the left chest portion, or the slicing type wound to his neck. He further testified that death was not instantaneous, but the victim would have been aware and lived at least three to four minutes. Dr. Roffman was of the further opinion these wounds caused undue pain and suffering to Danny Joe Eberle.
Christopher Walden was abducted as he walked to school on the morning of December 2nd. He was forced into defendant’s car, and told to lie on the floorboard. He began to cry, and defendant thought of releasing him. Defendant realized if he released Christopher it would cause him, the defendant, trouble. He then determined to carry out his plan as quickly as possible and immediately drove several miles to the area where Christopher’s body was found three days later. Upon arriving, defendant made Christopher walk to the murder site, and disrobe to his undershorts.
He then had the boy lie down and he began to manually strangle him. When he was unable to complete his gruesome task in this manner, he drew his knife and commenced a most horrid final assault.
Christopher Walden died from loss of blood caused by one or more of seven stab wounds and a large cutting wound on his neck. There were six or seven additional cutting wounds inflicted upon Christopher Walden’s body postmortem, across the chest and stomach. Of the seven stab wounds inflicted antemortem, Dr. Jones, the pathologist conducting the autopsy, pointed out that five of these did not penetrate deeply, yet the body tissue was not thick at those areas. Dr. Jones’ opinion was that Christopher’s death was not instantaneous, but that because of these five shallow stab wounds, he could well have been tortured. Dr. Kentsmith testified in his opinion both of these young boys would have been quite humiliated by undressing in front of the defendant at his direction, and further testified upon their abduction they would have felt an intense sense of terror, overwhelming fear, helplessness, anxiety, and a sense of impending doom that they would not survive. He testified this would be an overwhelming and very painful psychological event in a person’s life.
With respect to the second clause of this aggravating circumstance, the crime must be viewed to determine the defendant’s state of mind as manifested by his conduct. The manifestation of “exceptional” depravity by ordinary standards of morality and intelligence indicates a state of mind “totally and senselessly bereft of any regard for human life”. State v. Holtan, 197 Neb. 544, 250 N.W. 2d 876; State v. Peery, 199 Neb. 656, 261 N.W. 2d 95; State v. Otey, 205 Neb. 90, 287 N.W. 2d [36]; State v. Harper, 208 Neb. 568, 304 N.W. 2d 663; and State v. Moore, 210 Neb. 457, 316 N.W. 2d 33.
The defendant herein planned these abductions and murders far in advance, with the only missing element the actual identity of the victims. The murders were to be repetitive, presumably continuing as long as the defendant felt a need to satisfy his intellectual or sexual curiosity or urges, and the victims selected by the defendant would, by his fantasized standards, be somewhat defenseless and consist of prepubescent boys or women fitting the pictorial description gleaned from detective magazine covers. ... In short, the evidence is overwhelming that each of these murders were [sic] “totally and senselessly bereft of any regard for human life”.
We recognize that all murders may be characterized as atrocious and cruel, and further recognize there must, of necessity, be some interval of time between even the most savage of knife attacks and a resulting death. We, nevertheless, conclude this aggravating circumstance is applicable with respect to both clauses, recognizing the evidence and factors on the second clause of the aggravating circumstance far outweigh those under the first clause.
We conclude and find beyond a reasonable doubt this aggravating circumstance exists in both crimes for which the defendant is to be sentenced.
We agree with each of the factual findings made by the three-judge panel as set out above. We also agree with the conclusions of law as to the construction of § 29-2523(l)(d).
As we stated in State v. Palmer, ante p. 282, 314, 399 N.W.2d 706, 728 (1986):
We note that the word or separates “especially heinous, atrocious, cruel” from “manifested exceptional depravity by ordinary standards of morality and intelligence.” Thus, aggravating circumstance (l)(d) of § 29-2523 describes in the disjunctive at least two distinct components of an aggravating circumstance which may relate to a murder and which “may operate in conjunction with or independent of one another.” State v. Moore, 210 Neb. 457, 470, 316 N.W.2d 33, 41 (1982). See, also, Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554 (1984). The presence of any of the components will sustain a finding that aggravating circumstance (l)(d) exists. See State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986). See, also, State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983), cert. denied 461 U.S. 971, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (regarding “heinous, cruel, or depraved,” such statutory expression is in the disjunctive, “ ‘so either all or one could constitute an aggravating circumstance’ ”).
The evidence establishes beyond a reasonable doubt that each of the murders in this case was a “conscienceless or pitiless crime which [was] unnecessarily torturous to the victim” and, thus, that each of the murders was “especially heinous, atrocious, cruel” as required by § 29-2523(l)(d). State v. Palmer, supra at 315, 399 N.W.2d at 729.
The evidence further establishes beyond a reasonable doubt that each of the murders in this case “manifested exceptional depravity by ordinary standards of morality and intelligence.”
As stated in State v. Palmer, supra at 320, 399 N.W.2d at 731-32:
“[E]xceptional depravity” in a murder 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.... Consequently, where one or more of those five factors are present, there may be a finding of “exceptional depravity” concerning a first degree murder.
In this case the evidence establishes beyond a reasonable doubt that the defendant committed each murder with relish, inflicted gratuitous violence on the victim beyond that necessary to inflict death, the crimes were utterly senseless, and the victims were completely helpless.
Additionally, the murders were coldly planned as part of a repetitive program of self-gratification, involving immature victims selected on the basis of their availability at a time when the likelihood of detection was slight. See State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
Defendant’s urge for self-gratification was described by the psychiatrists as his need to satisfy his intellectual or sexual curiosity. In an interview with Dr. Kentsmith, Joubert stated that he wanted to know “what it was like to see someone die.”
The intellectual approach defendant took to the two murders involved is typified by several facts. Joubert told each of the psychiatrists in the case that, as he expressed the facts to Dr. Kentsmith, he frequently “had set my alarm clock to get up in the morning and to go out and do it [commit a murder].” Joubert told Dr. Kentsmith that 9 out of 10 times, after his alarm clock went off, Joubert would turn the alarm off and go back to sleep. He indicated that on some occasions he would get up and go looking for possible victims.
Dr. Kentsmith concluded that the psychological testing of Joubert shows a personality type which operated in an “amoral style” with an “inability to postpone gratification.” Dr. Kentsmith concluded that Joubert killed for “intellectual curiosity,” not for “sexual pleasure.”
The circumstances in this case demonstrate beyond a reasonable doubt that the murders “manifested exceptional depravity by ordinary standards of morality and intelligence.” State v. Palmer, ante p. 282, 399 N.W.2d 706 (1986).
The remaining assigned errors may be considered together. They are, in effect, that the mitigating circumstances outweigh the aggravating circumstances.
The record establishes no mitigating circumstances in either murder other than those found by the sentencing panel. However, we examine in some further detail the finding by the panel that mitigating circumstance (2)(c) existed as to each murder.
As set out above, § 29-2523(2)(c) defines as a mitigating circumstance the fact that “[T]he crime was committed while the offender was under the influence of extreme mental or emotional disturbance.” While we agree that subsection (2)(c) may be considered as established for purposes of sentencing, the weight to be given it is sharply diminished by the testimony of Dr. Kentsmith. Dr. Kentsmith testified that Joubert was not acting under such an influence that he could not have changed his behavior at the last moment before he actually killed the two boys.
Dr. Kentsmith testified that if Joubert had such an uncontrollable impulse, his actions “would be something that he would not plan out, that it would be something that under the influence of such strong emotion that it would occur at such a random, bizarre fashion that he would do it without any planning, without any premeditation, without any thought; just do it.”
At another point Dr. Kentsmith testified:
Well, an irresistible impulse is something that has to do with a person who is acting at the moment and behaving in such a way that even if a policeman was standing beside him, that he would go ahead and do what he’s intending to do. I have not been able to see anything in the examination or any of the reports that have been given to me to indicate that he wasn’t able to carefully plan and orchestrate what he was doing to some degree. That doesn’t mean that he couldn’t do it, that he still didn’t want to do it then, but the point was that he was able to control that.
We find Dr. Kentsmith’s analysis to be convincing. We therefore determine that while some weight should be given to (2)(c), that weight must be considered in the light of Dr. Kentsmith’s finding that Joubert could control the mental stress he had.
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. As we observed in State v. Stewart, 197 Neb. 497, 518, 250 N.W.2d 849, 862 (1977), quoting from State v. Dixon, 283 So. 2d 1 (Fla. 1973):
“It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather 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. Review by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great. Thus, the discretion charged in Furman v. Georgia, supra, can be controlled and channeled until the sentencing process becomes a matter of reasoned judgment rather than an exercise in discretion at all.”
From our examination of the aggravating circumstances and the mitigating circumstances, we conclude that the aggravating circumstances which were proven to exist so far outweighed the mitigating circumstances that the imposition of the death penalty was appropriate and not arbitrary. Sufficient aggravating circumstances existed to justify the imposition of sentences of death, and the mitigating circumstances did not approach or exceed the aggravating circumstances.
The assignments of error raised by Joubert in regard to the sentences by the sentencing panel are, therefore, overruled.
That leaves us with but one final act to perform, the proportionality review required by the provisions of Neb. Rev. Stat. § 29-2521.03 (Reissue 1985). This statute requires the Supreme Court to determine the propriety of the death sentence in a case in which it has been imposed by comparing the sentence with previous cases involving the same or similar circumstances.
We have determined that the purpose of that statute is 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. State v. Palmer, ante p. 282, 399 N.W.2d 706 (1986).
We have compared the facts and circumstances of this case with those of all the applicable cases in which the death penalty was imposed, as required by State v. Palmer. We find that the sentences imposed in this case are no greater than nor disproportionate to the sentences imposed in any other case with the same or similar circumstances.
The judgments are affirmed.
Affirmed.
[OPINION BY Krivosha, C.J., type=concurrence]
Krivosha, C.J.,
concurring in the result.
I concur in the result reached by the majority in this case. I believe, beyond question, that the facts of this case satisfy the requirements of Nebraska law and justify the sentencing panel’s sentence of death. I am not, however, able to adopt in its entirety all of the language of the majority, and for that reason I concur separately.
As observed by the majority, Joubert maintains that the sentencing panel erred in finding that Neb. Rev. Stat. § 29-2523(l)(d) (Reissue 1985) applied, in that these murders were not “especially heinous, atrocious, cruel, and [sic] manifested exceptional depravity by ordinary standards of morality and intelligence.” In support of his position Joubert argues that this case is identical to State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985), wherein this court held that the murder was not especially heinous and that, therefore, the death penalty could not be imposed.
Joubert, like so many, misread our holding in State v. Hunt, supra, and fails to understand the distinction to be made between this case and Hunt. The language of the specific aggravating circumstance § 29-2523(l)(d) reads as follows: “The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.” (Emphasis supplied.) Why the Legislature chose to add the word “especially” to modify “heinous” is not clear. However, a number of other jurisdictions, including Alabama, Arizona, Florida, Louisiana, Mississippi, North Carolina, and Wyoming, have used virtually identical language in their death penalty statutes, and states such as Georgia have used similar language. The critical words, as noted by the U.S. Supreme Court and several state courts, as well as by this court, are “murder” and “especially.” As we noted in State v. Hunt, supra at 725, 371 N.W.2d at 721: “In order for aggravating circumstance (l)(d) to be present, the method of killing must entail something more than the ordinary circumstances which attend any death-dealing violence.” As limited by the Legislature, the murder must not only be heinous, which means horrible, but it must be “especially” heinous, which means horribly horrible. There is no requirement in the Constitution which requires this exact standard. Nevertheless, the Legislature has imposed such a standard upon the courts, and we are duty-bound to follow the limitation. The Legislature alone prescribes the conditions under which the death penalty may be imposed.
State v. Hunt, supra, was certainly not the first or only case to use this definition of “especially heinous,” and it, in fact, reflects the nearly unanimous position taken by courts which have considered the question. Its holding is consistent with our earlier holding in State v. Reeves, 216 Neb. 206, 227, 344 N.W.2d 433, 447 (1984), wherein we held that aggravating circumstance (l)(d) was not present where a murder was achieved “swiftly and suddenly.” Nor was it present in State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977), under similar, but even more gruesome, circumstances.
This view, moreover, is consistent with national precedent. In the case of Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), the U.S. Supreme Court reviewed the Georgia statute which required that before the penalty of death may be imposed the sentencing panel must find that the murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ga. Code Ann. § 17-10-30(b)(7) (1982).
The facts of Godfrey, supra at 425, as disclosed by the opinion, were that the defendant
got out his shotgun and walked with it down the hill from his home to the trailer where his mother-in-law lived. Peering through a window, he observed his wife, his mother-in-law, and his 11-year-old daughter playing a card game. He pointed the shotgun at his wife through the window and pulled the trigger. The charge from the gun struck his wife in the forehead and killed her instantly. He proceeded into the trailer, striking and injuring his fleeing daughter with the barrel of the gun. He then fired the gun at his mother-in-law, striking her in the head and killing her instantly.
The jury imposed sentences of death and found beyond a reasonable doubt that “ ‘the offense of murder was outrageously or wantonly vile, horrible and inhuman,’ ” as required by statute. Id. at 426. In reversing the death penalty the U.S. Supreme Court said at 428-29:
[I]f a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates “standardless [sentencing] discretion.” Gregg v. Georgia, supra, at 196, n. 47. ... ... A person of ordinary sensibility could fairly characterize almost every murder as “outrageously or wantonly vile, horrible and inhuman.”
In then concluding, however, that this ordinary sensibility was not sufficient to establish the aggravating circumstance required by the Georgia statute, the U.S. Supreme Court said at 446 U.S. at 433:
The petitioner’s crimes cannot be said to have reflected a consciousness materially more “depraved” than that of any person guilty of murder. His victims were killed instantaneously. They were members of his family who were causing him extreme emotional trauma. Shortly after the killings, he acknowledged his responsibility and the heinous nature of his crimes. These factors certainly did not remove the criminality from the petitioner’s acts. But, as was said in Gardner v. Florida, 430 U. S. 349, 358, it “is of vital importance to the defendant and to the community that any decision tó impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”
Similarly, a number of state courts have passed upon the meaning of this aggravating circumstance. Their examination provides great assistance in applying it in the instant case. In State v. Goodman, 298 N.C. 1, 24-25, 257 S.E.2d 569, 585 (1979), the North Carolina court said:
G.S. 15A-2000(e)(9) states that the jury may consider as an aggravating circumstance justifying the imposition of the death penalty the fact that the “capital felony was especially heinous, atrocious, or cruel.” While we recognize that every murder is, at least arguably, heinous, atrocious, and cruel, we do not believe that this subsection is intended to apply to every homicide. By using the word “especially” the legislature indicated that there must be evidence that the brutality involved in the murder in question must exceed that normally present in any killing before the jury would be instructed upon this subsection. State v. Stewart, supra; State v. Rust, supra; State v. Simants, 197 Neb. 549, 250 N.W. 2d 881, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed. 2d 158 (1977).
The Florida provision concerning this aggravating factor is identical to ours. Florida’s Supreme Court has said that this provision is directed at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So. 2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950 [sic], 40 L.Ed. 2d 295 (1974); see also, State v. Alford, 307 So. 2d 433 (Fla. 1975), cert. denied, 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed. 2d 1221 (1976). Nebraska has also adopted the Florida construction of this subsection. Both Florida and Nebraska have limited the application of this subsection to acts done to the victim during the commission of the capital felony itself. State v. Rust, supra; Riley v. State, 366 So. 2d 19 (Fla. 1979). We too believe that this is an appropriate construction of the language of this provision. Under this construction, subsection (e)(9) will not become a “catch all” provision which can always be employed in cases where there is no evidence of other aggravating circumstances.
And in State v. Monroe, 397 So. 2d 1258, 1274-75 (La. 1981), the Louisiana Supreme Court said:
Although the jury found the instant offense to have been committed in an “especially heinous, atrocious or cruel manner,” this finding cannot stand. It is true that the murder was brutal — the victim lost over two quarts of blood, her lungs were punctured and one of her ribs was severed. Her death was not instantaneous, and she lived long enough to call out for her daughter and reach for the telephone.
Nonetheless, in order for a murder to be “especially heinous,” there must exist evidence that there was “torture or the pitiless infliction of unnecessary pain on the victim.” State v. English, 367 So.2d 815, 823 (La. 1979). State v. Clark, 387 So.2d 1124 (La. 1980), provides an example of what is meant by “especially heinous.” In that case the defendant stabbed the victim thirty-five times before shooting him with a gun. In the instant case, the “wounds were inflicted to kill, not to maim or to inflict pain.” State v. Culberth, supra, at 851. While there is some evidence in this case that the offense was heinous and cruel, it was not proved beyond a reasonable doubt that the instant offense was especially heinous.
(Emphasis supplied.)
In Hopkinson v. State, 632 P.2d 79 (Wyo. 1981), the defendant, tried under a statute identical to the Nebraska statute, argued that a jury could find any murder to be especially heinous, atrocious, or cruel and therefore could conclude that this aggravating circumstance is present in all cases. He contended that it, therefore, gave the jury a free rein to decide to sentence a person to death in every case and, thus, in effect, abolished the requirements previously established by the U.S. Supreme Court for imposing the death penalty. In rejecting that argument the Wyoming court said at 153-54:
We disagree with appellant’s conclusion. The statute does not fail to properly channel the jury’s sentencing decision and does not grant it unfettered discretion to impose the death penalty for arbitrary and capricious reasons. First, the statute requires the jury to find the murder to have been “especially heinous, atrocious or cruel.” Webster’s Third New International Dictionary defines heinous as “hatefully or shockingly evil.” Thus the term “especially heinous” is more than just hatefully or shockingly evil. The murder, to be so classified, must demonstrate that the consciencelessness of the defendant is not only an outrage but also a dangerous and unrestrainable threat to society. Only when this is found can the murder properly be categorized as especially heinous. Since very few murders can be regarded in this manner, the term is not impermissible and vague.
The view of the Wyoming court is in accord with that of the U.S. Supreme Court. In Proffitt v. Florida, 428 U.S. 242, 255, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), reh’g denied 429 U.S. 875, 97 S. Ct. 198, 50 L. Ed. 2d 158, Justices Stewart, Powell, and Stevens, in the Court’s plurality opinion, said:
In particular, the petitioner attacks the eighth and third statutory aggravating circumstances, which authorize the death penalty to be imposed if the crime is “especially heinous, atrocious, or cruel,” or if “[t]he defendant knowingly created a great risk of death to many persons.” §§ 921.141(5)(h), (c) (Supp. 1976-1977). These provisions must be considered as they have been construed by the Supreme Court of Florida.
That court has recognized that while it is arguable “that all killings are atrocious... [s]till, we believe that the Legislature intended something ‘especially’ heinous, atrocious or cruel when it authorized the death penalty for first degree murder.” Tedder v. State, 322 So. 2d, at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.”
The necessary distinction to be made between what is simply heinous and what is especially heinous is pointed out by the Alabama court in Berard v. State, 402 So. 2d 1044 (Ala. Crim. App. 1981), in which the trial court found that the homicides were “brutal” and therefore ordered the imposition of the death penalty. In discussing that matter the Alabama court said at 1050: “That the homicides were ‘brutal’ fails to conform to § 13-11-6(8) which requires a finding that the crime was ‘especially heinous, atrocious or cruel.’ (Emphasis supplied.) The crime was in fact brutal, but the statute requires more.”
Later, in the case of McCray v. State, 416 So. 2d 804 (Fla. 1982), the Florida Supreme Court again reviewed its statute, nearly identical to Nebraska’s, and reversed a sentence of death because it found that the crime was not especially heinous, atrocious, or cruel, as previously defined by the Florida court. The facts of McCray indicated that a murder in which the victim died from three bullets to the stomach did not meet the statutory definition.
Similarly, in Clark v. State, 443 So. 2d 973, 977 (Fla. 1983), the Florida court again said:
Directing a pistol shot to the head of the victim does not establish a homicide as especially heinous, atrocious, or cruel. Kampff v. State, 371 So.2d 1007 (Fla.1979). Although Mr. Satey testified that he heard his wife moan after being shot, there was no evidence of whether she was conscious after being shot, not [sic] did the medical examiner indicate how long Mrs. Satey survived or what degree of pain, if any, she suffered. Although the helpless anticipation of impending death may serve as the basis for this aggravating factor, there is no evidence to prove that Mrs. Satey knew for more than an instant before she was shot what was about to happen to her. Similarly, as pitiable as were Mr. Satey’s vain efforts to dissuade his attackers from harming his wife, it is the effect upon the victim herself that must be considered in determining the existence of this aggravating factor.
The following year, Mississippi, in the case of Billiot v. State, 454 So. 2d 445 (Miss. 1984), considered the “especially heinous, atrocious or cruel” provision of its statute, saying at 464:
[W]hat is intended by the words “especially heinous, atrocious or cruel”, “are those capital crimes where the actual commission of the felony was accompanied by such additional facts as to set the crime apart from the norm of capital felonies — the consciencelessness [sic] or pitiless crime which is unnecessarily tortuous [sic] to the victim.”
During that same year Florida, in Gorham v. State, 454 So. 2d 556 (Fla. 1984), held that where one shot penetrated the victim’s heart, causing death within 10 seconds, and where the evidence disproved any possibility of prolonged and torturous captivity and there was no evidence whatsoever that the victim apprehended certain death more than moments before he died, the aggravating circumstance in support of the death penalty that the murder was especially heinous, atrocious, and cruel, being based as it was upon the victim’s having been thereafter shot twice in the back, could not be sustained.
In so holding, the Florida court said in Gorham, supra at 559: “While the murder was, of course, a cruel and unjustifiable deed, there is nothing about it to ‘set the crime apart from the norm of capital felonies.’ ” The evidence indicated that the victim was already dead when the next two shots were fired. The Florida court’s position was not based upon its notion that the murder was not terrible or even heinous but that, in order for the statute to be constitutional and not permit the imposition of the death penalty in every case, the aggravating circumstance “especially heinous” must be interpreted to be limited to those few cases in which the murder was committed in such a manner as to cause torture to the victim before death in a conscienceless and pitiless way. This distinction is made not because the courts are without sensitivity but, rather, because the death penalty may not be imposed unless clear, rigid standards are first met. See, Thompson v. State, 456 So. 2d 444 (Fla. 1984); Rembert v. State, 445 So. 2d 337 (Fla. 1984); State v. Wilson, 467 So. 2d 503 (La. 1985).
One may question why Supreme Courts are, in a sense, required to serve as “legal pathologists” who must, in a ghoulish fashion, dissect murders in order to separate the “especially heinous” from the merely “heinous,” with nothing more than a word gauge which measures when a murder ceases being merely horrible and brutal and becomes “conscienceless, pitiless, and unnecessarily torturous to- the victim.” That question must, however, more appropriately be directed to the legislatures which established the standards and not to the courts upon which the duty is imposed.
The lesson of all these cases is simply that before a court can find that the murder was “especially heinous,” evidence must be adduced by the prosecution that more than a murder occurred. For a murder to satisfy the aggravating circumstance created by § 29-2523(l)(d), the evidence which is relevant for purposes of determining whether the murder was “especially heinous” must establish beyond a reasonable doubt that the victim, while alive, was tortured. What occurs to the body after death may often be even more reprehensible. Yet it does not, under the law, fall within the standards established by our Legislature for determining the presence of an “especially heinous” murder.
The evidence in this case is overwhelming that both young men were horribly tortured while still alive. Their murders were clearly conscienceless and pitiless, and Joubert is most deserving of a penalty of death within the meaning of the law.
Because of reasons more detailed by me in my concurrence and dissent in State v. Palmer, ante p. 282, 399 N.W.2d 706 (1986), I need not here discuss my view of the phrase “exceptional depravity” as used in § 29-2523(l)(d). Unlike the majority, I do not believe that there are two separate prongs, but simply one, and that in the instant case this murder was especially heinous, atrocious, and cruel. That it “manifested exceptional depravity” is merely a further factor in establishing that it was especially heinous, atrocious, and cruel. My point of disagreement with the majority is not the result reached by the majority, but the path taken in arriving at that conclusion.
Further, for reasons more fully set out in my concurrence and dissent in State v. Palmer, supra, I do not agree with the majority that only cases in which the death penalty has been imposed are to be used when conducting the proportionality review required by Neb. Rev. Stat. §§ 29-2521.01 to 29-2521.03 (Reissue 1985). I do, however, believe that the facts and circumstances in this case are so unique that there are no other cases with which a comparison can be made and that regardless of which cases are used to conduct the review, one ultimately reaches the conclusion that the penalty of death in this case was properly imposed under the standards established by the Nebraska Legislature.
State of Nebraska, appellee, v. John J. Joubert, appellant.
455 N.W.2d 117
Filed May 4, 1990.
No. 89-224.
J. Joseph McQuillan, of Walentine, O’Toole, McQuillan & Gordon, for appellant.
Robert M. Spire, Attorney General, and Sharon M. Lindgren for appellee.
Hastings, C.J., Boslaugh, White, Caporale, Shanahan, Grant, and Fahrnbruch, J J.
[OPINION BY Caporale, J. type=majority]
Caporale, J.
I. INTRODUCTION
Defendant, John J. Joubert, appeals from the denial of the motion he filed pursuant to the Nebraska Postconviction Act, Neb. Rev. Stat. §§ 29-3001 et seq. (Reissue 1989), seeking an order “vacating or setting aside” each of the two convictions for first degree murder and the resulting sentences of death which were affirmed on direct appeal in State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986) (Joubert I). He asserts, in summary, that the postconviction judge erred in failing to (1) disqualify himself, (2) find that Joubert’s trial attorneys were ineffective by virtue of a conflict of interest and by virtue of advising him to plead guilty, and (3) find that the receipt of certain victim impact statements into evidence at the penalty phase of the trial did not prejudice Joubert. We affirm.
II. ANALYSIS
We begin our review of this matter by recalling that one seeking postconviction relief has the burden of establishing the basis for such relief and that the findings of the postconviction court will not be disturbed unless they are clearly wrong. State v. Williams, 234 Neb. 890, 453 N.W.2d 399 (1990); State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990); State v. Harton, 230 Neb. 167, 430 N.W.2d 313 (1988). Moreover, it is the postconviction judge who, as the trier of fact, resolves conflicts in the evidence and questions of fact, including the credibility and weight to be given the testimony of a witness. State v. Costanzo, ante p. 126, 454 N.W.2d 283 (1990); State v. Reeves, supra; State v. Domingus, 234 Neb. 267, 450 N.W.2d 668 (1990). With those cardinal principles in mind, we proceed to an analysis of each of Joubert’s claims for relief.
1. Nondisqualification
With respect to the first summarized assignment of error, Joubert argues that his postconviction action should at least be remanded for a new hearing because the postconviction judge, who was also the judge presiding over the guilt phase of the trial and, as such, accepted Joubert’s pleas of guilty, refused to disqualify himself from presiding over the postconviction proceedings.
Joubert based this disqualification motion upon the assertion that the judge would be called as a witness in the proceedings. This assertion, in turn, rested upon a portion of the argument relating to Joubert’s second assignment of error, i.e., that Joubert’s trial attorneys were ineffective in failing to litigate the issue of the admissibility of his confession, a matter which is analyzed later in part II(2)(b)(iii) of this opinion.
In attempting to support his disqualification motion, Joubert argued that his trial attorneys’ failure to litigate the motion to suppress his confession could have been the result of off-the-record in camera communications between the trial attorneys and the judge. Thus, Joubert reasoned that the judge should be available as a witness and therefore, to preserve his availability as such, should not preside over the postconviction hearing. See Neb. Rev. Stat. § 27-605 (Reissue 1989), which provides that a presiding judge at the trial may not testify in that trial as a witness.
At a hearing on this motion Joubert, through his postconviction attorney, argued:
So then you get in the situation you say, “Well, how do I know you’re going to use me as a witness... ? How do I know I have to disqualify myself?” So that I have to respond “I don’t know until I find out. I don’t know until I inquire whether, in fact, you have any information which may or may not be probative in this case.” I think I have a right and an obligation to so inquire.
After further argument and a rebuttal by the State, the judge stated the following:
At this point of time I’m going to deny the motion to recuse. That’s without prejudice to going ahead and file [sic] your notice to take depositions, but let me indicate in advance to you that a motion to quash... will be looked upon with favor until you develop some evidence somewhere, either by the testimony of [the prosecutor] or the testimony of Mr. Miller or testimony of somebody that, in fact, there were communications with me that were not on the record.
Now, I can indicate to you, and it may save you time, to my memory there aren’t any. I think I had [the court reporter] every single time when I had Mr. Miller and [the prosecutor] and certainly I know that when the defendant was present, and if they testify to the contrary, I’m not saying they’re right or wrong. Maybe my memory’s failing
... [I]f you develop some testimony or evidence that makes me a witness on the factual matters, you don’t need to file another motion to recuse. I’ll step down on my own motion ... if, in fact, it turns out that I become a witness to some factual matters.
Thus, Joubert’s disqualification motion was denied because there was no indication that there was any basis for his claim that the judge was a necessary witness in the postconviction proceeding.
Joubert’s brief cites The People v. Wilson, 37 Ill. 2d 617, 230 N.E.2d 194 (1967), for the proposition that in a death penalty postconviction proceeding, a judge who has knowledge of off-the-record statements from a prior proceeding at the district court level should recuse himself from the postconviction hearing, and states:
Indeed it is clear that petitioner herein was prevented from access to relevant evidence. There can be no doubt that there were many conversations that took place off the record in the judge’s chambers during the proceedings of the Joubert case on the District Court level. Wilson. As such, Joubert was denied access to this material in the form of a judge’s recollection of what transpired during the Joubert case. The judge from the prior proceeding was directly involved and has a version of the facts which are relevant and material and may at times offer information not available from other sources.
Brief for appellant at 37. However, the record before this court reveals no evidence of any relevant off-the-record conversations involving the judge, nor does the record support an assertion that the judge had any information not readily available from other sources. The judge said discovery could be pursued on the issue and that he would recuse himself on his own motion if evidence that he had been involved in relevant off-the-record conversations were discovered. The record presents no such evidence.
There is no rule of law which automatically disqualifies a judge who has presided at trial from subsequently considering a postconviction action. State v. Herren, 212 Neb. 706, 325 N.W.2d 151 (1982). Furthermore, the mere assertion by a convicted defendant that he may wish to call the trial judge as a witness in a postconviction hearing does not, by itself, provide grounds for disqualifying the trial judge from presiding over the postconviction proceeding. See, Sivak v. State, 112 Idaho 197, 731 P.2d 192 (1986); Logan v. State, 712 S.W.2d 9 (Mo. App. 1986); Welch v. State, 283 Ark. 281, 675 S.W.2d 641 (1984); People v. Neal, 123 Ill. App. 3d 148, 462 N.E.2d 814 (1984).
Joubert also argues that the postconviction judge exhibited bias when he examined witnesses during the postconviction proceeding and through the comments which he made during that proceeding.
As stated in State v. Ellefson, 231 Neb. 120, 122, 435 N.W.2d 653, 655-56(1989):
A motion to disqualify a judge on the ground of bias or prejudice is addressed to the judge’s discretion, and an order overruling such a motion will ordinarily be affirmed on appeal unless the record establishes bias or prejudice as a matter of law. [State v. Reddick, 230 Neb. 218, 430 N.W.2d 542 (1988).] A party seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987).
The comments and questions of the postconviction judge cited by Joubert as evidence of bias, including the judge’s inquiry as to whether Miller had not defended a particular case, were offered by the judge in an effort to clarify the record which was being created, and do not support an inference of prejudice or predisposition on his part. Consequently, Joubert’s first summarized assignment of error is without merit.
2. Effectiveness of Counsel
In the second summarized assignment of error Joubert urges that he was denied the effective assistance of counsel guaranteed him by the 6th amendment to the federal Constitution and made applicable to the State through that document’s 14th amendment. He assigns as grounds for this assertion the claims that his attorneys had a conflict of interest and performed defectively in advising him to plead guilty.
The analysis of the claim that Joubert’s attorneys were ineffective begins with the rule that in a postconviction action seeking relief on the basis of ineffective counsel, a defendant must show that (1) counsel’s performance was deficient and (2) such deficient performance prejudiced the defense. State v. Sanders, ante p. 183, 455 N.W.2d 108 (1990); State v. Williams, 234 Neb. 890, 453 N.W.2d 399 (1990); State v. Domingas, 234 Neb. 267, 450 N.W.2d 668 (1990); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The standard for determining the adequacy of a criminal defense attorney’s performance is whether the attorney performed at least as well as an attorney with ordinary training and skill in the criminal law in the area. State v. Williams, supra; State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990); State v. Domingus, supra. In this connection Strickland v. Washington admonishes at 466 U.S. at 689-90:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, [350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
In order to satisfy the prejudice requirement in the context of a plea, the defendant must show that there is a reasonable probability that but for counsel’s errors, the defendant would not have pled and would have insisted upon going to trial. State v. Domingus, supra, citing State v. Wakeman, 231 Neb. 66, 434 N.W.2d 549 (1989).
With that background we move on to a review of the claims on which is based Joubert’s assertion that his trial attorneys were ineffective.
(a) Conflict of Interest
Joubert’s first claim is that his trial attorneys had a conflict of interest arising from the professional relationship between George Burr, one of his attorneys, and J.E. and L.E., the parents of the late Danny Joe Eberle, one of Joubert’s victims.
After Joubert’s arrest and through his appeal in JoubertI, he was represented by the Sarpy County Public Defender’s office. When that office began to represent Joubert, it was comprised of the elected Sarpy County Public Defender, James Miller, and his two assistants, Owen Giles and Burr. Such remained the composition of the office until approximately September 21, 1984, when Burr was discharged.
Sometime between Joubert’s July 3, 1984, guilty pleas and the date Burr was discharged, Burr was directed by Miller to contact the Eberles and see if they would be willing to write a letter requesting that the judge sentence Joubert to imprisonment for life rather than to death. Burr was selected for this task because he, like the Eberles, was a Bellevue resident. When Burr called J.E., she reminded him that he had previously handled the Eberles’ adoption of a daughter. Burr testified that prior to this conversation with J.E., he had forgotten his previous representation of the Eberles but later confirmed, through his “old files,” that he had in fact done so. The adoption had occurred 8 to 10 years earlier, apparentlyin 1975 or 1976. Burr then informed Miller and Giles of this past representation, a matter previously unknown to them.
On December 7, 1984, Burr filed a federal bankruptcy petition on behalf of the Eberles. The evidence as to when the Eberles and Burr first discussed the matters resulting in this representation is in conflict, but the postconviction judge found as fact that such occurred after the “sentencing hearings and order of sentence.” The postconviction judge then concluded that Joubert’s attorneys had a conflict of interest only with respect to their “actions subsequent to the sentencing and prior to” Burr’s departure from the public defender’s office, a conclusion which is difficult to understand in light of the fact that Burr was discharged from the public defender’s office on approximately September 21, 1984, while Joubert’s sentencing did not occur until October 9,1984. Thus, it appears that the postconviction judge may have erred in finding that a conflict of interest existed at all. However, even if it were assumed that a conflict of interest existed because of any relationship between Burr and the Eberles, the record still fails to support a claim that Joubert’s convictions should be set aside or vacated.
In State v. Williams, 224 Neb. 114, 396 N.W.2d 114 (1986), Williams was convicted of first degree murder and sentenced to death. At trial and during his first postconviction action, Williams was represented by the Lancaster County Public Defender’s office. In his second motion for postconviction relief, Williams alleged that a member of the public defender’s office had represented Williams’ wife in an action to dissolve her marriage with Williams and that this constituted a conflict of interest that deprived him of effective assistance of counsel. Williams claimed that the conflict had prevented his trial counsel from calling his wife as a witness during his trial in support of his insanity defense.
In concluding that because Williams failed to show he was adversely affected by his counsel’s possible conflict of interest, the Williams court noted:
In Strickland v. Washington, [466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the Court discussed a “per se rule of prejudice” and a “rule of presumed prejudice”:
“In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance. See United States v. Cronic, ante, at 659, and n. 25. Prejudice in these circumstances is so likely that case by case inquiry into prejudice is not worth the cost. Ante, at 658. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.
“One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, 446 U.S., at 345-350, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e. g., Fed. Rule Crim. Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ Cuyler v. Sullivan, supra, at 350, 348 (footnote omitted).” Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
As indicated in Strickland v. Washington, supra, a conflict of interest, per se, does not annihilate or frustrate a defendant’s constitutional right to effective assistance of counsel, necessitating reversal of a judgment in a criminal case. However, there is a presumption of prejudice involving a defendant’s constitutional right to effective assistance of counsel when a defendant demonstrates (1) counsel actively represented conflicting interests and (2) an actual conflict of interest adversely affected performance by the defendant’s lawyer. Such conflicts of interest must be shown to have resulted in counsel’s conduct detrimental to the defense.
Regarding prejudice on account of ineffective assistance of counsel, Strickland contains the following observation by the Court:
“Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” Id. at 697.
Putting aside the question whether an actual conflict of interest exists in the case before us, and following the suggestion in Strickland, we dispose of Williams’ appeal on the basis of presence or absence of prejudice.
State v. Williams, 224 Neb. 114, 121-22, 396 N.W.2d 114, 119-20(1986).
As in Williams, it is appropriate in this case to put aside the question whether an actual conflict of interest existed, to follow the suggestion in Strickland, and to dispose of the issue on the basis of the presence or absence of prejudice.
While Joubert speculates in his brief that Burr’s professional relationship with the Eberles “might motivate a less than zealous defense” of him, brief for appellant at 16, the reality is that neither the record nor Joubert’s brief illustrates that Burr’s relationship with the Eberles had any effect whatsoever on Joubert’s defense. That being so, Joubert’s claim that his attorneys were ineffective by virtue of a conflict of interest is without merit.
(b) Plea Advice
As the result of a plea bargain, Joubert pled guilty to the two charges of first degree murder, in exchange for which the State dismissed two kidnapping and two using a knife to commit a felony charges; refrained from arguing for the death penalty; refrained from offering in evidence a presentence investigation; refrained from making “any effort in regard to the Maine case” (emphasis supplied) (investigating Joubert’s involvement in the murder of still another young boy); and agreed Joubert could remain silent notwithstanding his pleas.
The significance of the reference to the “Maine case” is illustrated by the fact the prosecutor informed Giles that the State had been working with authorities from Maine regarding another murder which had occurred in that state. Based upon his communications with the prosecutor, Giles testified that if Joubert had been convicted at a trial on his Nebraska charges, the State would have attempted to prove that Joubert had committed the murder being investigated in Maine. Giles noted that if the State had been successful in presenting such proof, this prior uncharged murder would have represented an aggravating circumstance which would have increased Joubert’s chances of receiving a death sentence. Because Joubert had informed his attorneys that he in fact had been involved in a Maine homicide, Miller and Giles concluded that it was important to prevent the State from presenting evidence with respect to that additional murder, and took that into consideration in advising Joubert to plead guilty.
Joubert now claims his trial attorneys were ineffective in advising him to so plead as a combined result of the dynamics arising from his attorneys’ lack of experience and inability to get along with each other, their failure to develop evidence in support of a change of venue, their failure to obtain a ruling on their motion to suppress his confession, their failure to somehow extract a guarantee that the death penalty would not be invoked, and their failure to file and litigate every possible motion. We review each of these claims in turn.
(i) A ttorney Dynamics
Joubert’s claim that his attorneys were deficient in part by advising him to plead guilty because they were inexperienced and did not get along with each other leads to no meaningful analysis. As the U.S. Supreme Court observed in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), while a particular lawyer’s level of experience may shed light on his or her performance, it is the lawyer’s performance that must be evaluated. The same is true with respect to the nature of the relationship between lawyers who worked together; the question is not how well they got along, but how well they performed their function.
We note that as to the matter of performance, a number of attorneys testified at the postconviction hearing to a variety of opinions concerning what Joubert’s trial attorneys should or should not have done. Expert testimony must be such as to assist the trier of fact to understand the evidence or to determine a fact in issue. Neb. Rev. Stat. § 27-702 (Reissue 1989). The question of whether counsel performed in accordance with the test set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is a legal matter concerning which judges are required to be their own experts; judging the law is one of the more important judicial functions. Thus, expert evidence is generally not admissible as proof that the assistance of counsel in a criminal case was ineffective. State v. Gagliano, 231 Neb. 911, 438 N.W.2d 783 (1989); State v. Ohler, 219 Neb. 840, 366 N.W.2d 771 (1985). It is true that in a postconviction action decided after Ohler and before Gagliano, State v. Meis, 223 Neb. 935, 395 N.W.2d 509 (1986), we, without comment, noted the testimony of an attorney concerning what he would have done with respect to the State’s closing argument at trial. A close reading of the opinion reveals, however, that the analysis would have been the same had we ignored the attorney’s testimony. The fact is that the expert evidence in this case adds nothing of probative value to the record.
Having determined that no useful purpose would be served by a detailed review of the level of experience attained by Joubert’s attorneys or of their interpersonal relationships, we move onto Joubert’s other concerns.
(ii) Venue Motion
Joubert asserts that he was denied effective assistance of counsel in part by virtue of his attorneys’ advice to plead guilty before the trial court had ruled on his motion for a change of venue and in part by his attorneys’ failure to present more evidence, including a public opinion poll, in support of that motion. In denying Joubert relief on this issue, the postconviction judge found that the venue motion would have been “held under advisement, or denied without prejudice to renewing it, until an attempt was made to impanel a jury in Sarpy County... even if defense counsel had submitted a public opinion poll in support of the motion.”
In accordance with the reasoning adopted in earlier cases, this court, in State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990), recently held that compared to a public opinion poll, voir dire examination is the better, more probative forum for ascertaining the existence of community and individual prejudice or hostility toward an accused and that it was not error for the trial court in that case to refuse to grant a motion for a public opinion poll. Similarly, Joubert’s attorneys did not perform deficiently in electing not to conduct a public opinion poll.
Furthermore, as found by the postconviction court, Joubert has failed to show how a ruling on his venue motion would have affected his pleas. Before Joubert pled, the trial court stated that if an impartial jury could not be impaneled in Sarpy County, the motion would have then been considered. Joubert, like all defendants, was assured of an impartial jury wherever his trial was held. Thus, it cannot be said that his decision to plead guilty, or the outcome of a trial, had one been held, would have been affected by a ruling on the change of venue motion.
(Hi) Motion to Suppress Confession
Joubert places great emphasis on his trial attorneys’ failure to insist upon a ruling, before he pled, on his then pending motion to suppress the confession he gave to the police.
The circumstances surrounding this aspect of Joubert’s pleas are detailed in Joubert I dead will not be reiterated in detail here. It is sufficient to note that the trial court, in an effort to avoid pretrial publicity which would adversely affect its ability to impanel an impartial jury, refused to conduct a hearing on the suppression motion until after a jury had been selected. In determining to so handle the matter, the trial court stated that Joubert could enter his guilty pleas and still have the option of having the court hear his motion to suppress. The trial court further stated that if Joubert succeeded in suppressing his confession, he would then be allowed to withdraw his pleas of guilty. Nonetheless, when it actually accepted the pleas, the trial court asked Joubert:
[D]o you understand there is a motion pending to suppress statements or confessions that you had allegedly made at the time of your arrest? Do you understand that if I accept the pleas of guilty, that that motion likewise is gone and you can never raise that again as an issue?
Joubert replied, “I understand.”
In this postconviction proceeding Joubert testified that when he pled guilty, he was not aware of the option to be heard on the motion to suppress after he entered his guilty pleas. Giles also testified he was unaware of that option. However, Miller testified that he had informed Joubert of the option, and the postconviction court accepted Miller’s version of the facts on this question.
Whatever might be said of the manner in which the suppression motion was handled becomes unimportant if the confession was not suppressible. In that connection, we bring to mind this court’s observation in Joubert I that “it was difficult to imagine” what evidence could have been presented which would have convinced the trial court to suppress the confession. In now recycling this issue, Joubert presents nothing which supports a determination that his confession was made other than freely, voluntarily, intelligently, and understandingly and free of any promises or inducements.
Not only did the trial court’s colloquy with Joubert, as reported in Joubert I, establish that he was fully aware of the rights afforded him by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), but the confession itself establishes that Joubert was aware of those rights. The confession reveals that Joubert knew he was talking with police authorities, that he had the right to remain silent, that anything he said would be used against him in a court of law, that he had the right to have an attorney present during questioning, and that if he could not afford an attorney, the court would appoint one for him. The confession also reveals that with full knowledge of those rights, Joubert elected to expressly waive the presence of an attorney. He further expressly acknowledged his willingness to make statements to the police. The confession also discloses that Joubert had not, in the 24 hours preceding the confession, ingested either alcohol or other drugs and that he had eaten within the preceding 2 or 3 hours. At the commencement of the confession Joubert acknowledged that he had been neither coerced nor threatened, nor had he received any promises.
The confession was obtained constitutionally and therefore, as the postconviction judge determined, was not suppressible. Consequently, the failure of Joubert’s attorneys to insist that the suppression motion be ruled upon before permitting him to plead, if professionally deficient, a matter we do not decide, resulted in no prejudice.
(iv) Motion to Suppress Identification
Joubert further claims that his trial attorneys performed deficiently in failing to call unnamed witnesses to testify about the “line up wherein [Joubert] was identified.” Brief for appellant at 6.
The record reveals that Joubert’s attorneys filed a motion to suppress, on a variety of grounds, any pretrial and courtroom identification of Joubert by sundry persons endorsed as witnesses by the State. After an evidential hearing, the trial judge overruled the motion with the proviso that if the State were to call a particular witness who had been hypnotized, the State would have to show that such witness’ recollection was on a basis independent of the hypnosis.
Joubert does not tell us what the unnamed witness would have said. He only argues that the step was necessary to determine if any evidence of police misconduct with respect to the lineup procedures could be discovered. The rule, however, is that a claim of prejudice based upon counsel’s failure to call witnesses is not sustained in the absence of evidence as to what the witnesses’ expected testimony would be. State v. Hill, 214 Neb. 865, 336 N.W.2d 325 (1983). Furthermore, no claim is made, nor does the record show, that there were any witnesses to the crimes. Given that circumstance and the completeness of Joubert’s confession, we are unable to discern how any identification of him could materially affect the certainty of his conviction had he gone to trial, nor his decision to plead guilty.
(v) Life Guaranty
Next, Joubert contends, in effect, that it is a per se violation of a defendant’s right to effective assistance of counsel if he is advised to plead guilty when the imposition of the death penalty is possible. He urges the view that a defendant in a first degree murder case should be advised to plead guilty only if the criminal justice system has been so manipulated as to make imposition of the death penalty impossible, such as would be the case, for example, if the prosecutor were to agree, properly or improperly, to refrain from adducing at the penalty phase of the trial any evidence of aggravating circumstances.
While those personally opposed to the death penalty may espouse this approach, it is apparent that such is not the law. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a case in which the defendant was sentenced to death after pleading guilty to three counts of murder. See, also, Post v. Ohio, 484 U.S. 1079, 108 S. Ct. 1061, 98 L. Ed. 2d 1023 (1988) (Marshall, J., dissenting) (certiorari denied in case wherein defendant was sentenced to death by a three-judge panel after entering plea of no contest to charges of aggravated murder and aggravated robbery).
It is interesting to note that the late Clarence Darrow, an attorney whose advocacy was generally considered to be quite effective, found it appropriate to advise his clients to plead guilty in the case of the State of Illinois v. Nathan Leopold, Jr., and Richard Loeb before the criminal court of Cook County, notwithstanding that imposition of the death penalty was possible. See, Clark v. United States, 259 F.2d 184 (D.C. Cir. 1958) (Burger, J., dissenting); United States v. Perez-Casillas, 593 F. Supp. 794 (D. Puerto Rico 1984).
(vi) Other Possible Motions
Joubert’s final complaint with respect to this summarized assignment of error is that his trial attorneys were ineffective because they failed to file and litigate “every motion of even questionable merit.” Brief for appellant at 25. He, however, does not identify what motions his attorneys should have filed. Neither does the record reveal any basis for unfiled motions of arguable merit. What the record does reveal is that his trial attorneys filed 27 motions on Joubert’s behalf. Contrary to Joubert’s suggestion that his attorneys were duty-bound to engage in defense efforts predestined to fail, we have held that “[n]o incompetence or prejudice can be implied by trial counsel’s failure to do that which ought not be done.” State v. Hunt, 212 Neb. 304, 307,322 N.W.2d 624, 628 (1982).
(c) Resolution of Assignment
Since each of Joubert’s claims of his trial attorneys’ ineffectiveness is without legal merit, those claims neither individually nor in combination with each other support the assertion that his trial attorneys were ineffective.
The reality is that Joubert’s trial attorneys were faced with what could only appear to any reasonable attorney as the certain conviction of their client, and thus opted to limit, as best they could, the evidence of aggravating circumstances which the State could present and thereby lessen the possibility that Joubert would be sentenced to death. While hindsight has proven that strategy to be unsuccessful, it was nevertheless the product of reasonable professional judgment.
3. Victim Impact Statements
In the third and last summarized assignment of error, Joubert argues that his sentence is constitutionally infirm because the panel of judges who sentenced him received in evidence victim impact statements in the form of letters from the parents of Joubert’s victims. Regarding these letters, the sentencing panel stated the following: “To the extent these letters have provided a catharsis for those writing them, we acknowledge receiving and reading them. Nevertheless, these letters have no probative value or weight in our determinations... .” Joubert nonetheless argues that receipt of the documents in evidence requires that his sentence be reversed, citing Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987). Joubert’s reliance on Booth is clearly misplaced.
Booth involved a Maryland statute which required the Maryland State Division of Parole and Probation to compile a presentence report which, in all felony cases, included a victim impact statement describing the effect of the crime on the victim and the victim’s family. The U.S. Supreme Court determined that it was improper for a jury to consider such victim impact statements in a capital sentencing decision.
Even if we ignore the differences between the nature of an impact statement prepared by a professional under statutory mandate and letters from the parents of the victims, Booth is nonetheless distinguishable from this case in that the sentence in Booth was imposed by a jury of laypersons and, here, the sentences were imposed by a panel of jurists. Indeed, the U.S. Supreme Court had an opportunity to extend the Booth holding to a situation involving judge sentencing in Post v. Ohio, 484 U.S. 1079, 108 S. Ct. 1061, 98 L. Ed. 2d 1023 (1988), and refused to do so by denying certiorari. The situation is no different than that presented in a bench trial where the judge suppresses a confession, presides over the trial, and then imposes sentence. The fact that a judge reviews a confession does not disqualify him from continuing to preside over the remaining phases of the trial. This is so because it is presumed that judges disregard evidence which should not have been admitted. State v. Sheridan, 230 Neb. 979, 434 N.W.2d 338 (1989); Wells v. State, 152 Neb. 668, 42 N.W.2d 363 (1950). The panel in this case specifically declared that it was acting in accordance with the presumption.
We are not unmindful that recently in State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), we reasoned that Booth did not control the result therein because it was not to be applied retroactively. Reeves employs a correct alternative analysis which appropriately disposed of the issue under the facts of that case. However, the broader analysis required by the facts of this case provides an alternative which would have led to the same result as the narrower analysis employed in Reeves.
There is no merit to the third summarized assignment of error.
III. DECISION
The record failing to support any of the summarized assignments of error, the judgment of the postconviction judge is affirmed.
Affirmed.
John J. JOUBERT, IV, v. John R. McKERNAN, Jr., Governor of the State of Maine, and Donald Allen, Commissioner of the Department of Corrections.
Supreme Judicial Court of Maine.
Argued March 22, 1991.
Decided April 4, 1991.
Stuart W. Tisdale, Jr. (orally), Poulos, Campbell & Zendzian, Portland, for plaintiff.
Michael E. Carpenter, Atty. Gen. William R. Stokes (orally), Lisa Pelkey Márchese, Asst. Attys. Gen., Augusta, for defendant.
Before McKUSICK, C.J., and ROBERTS, WATHEN, CLIFFORD, COLLINS and BRODY, JJ.
For convenience we refer to the defendants in this opinion as the State of Maine.
[OPINION BY ROBERTS, Justice. type=majority]
ROBERTS, Justice.
John J. Joubert, IV, appeals from a judgment of the Superior Court (Knox County, Kravchuk, J.) denying the multiple requests contained in his pro se “Petition for a Writ of Habeas Corpus” that, in addition to a writ of habeas corpus, sought both a declaration that his anticipated return to Nebraska within ten days of sentencing was contrary to law and an injunction against returning him to Nebraska. Because we find no substantive merit in Joubert’s contentions, we affirm the judgment.
On January 8, 1986, Joubert was indicted by a Cumberland County grand jury for the murder of Richard Stetson. At the time of the indictment, Joubert was incarcerated on death row at the Nebraska State Penitentiary for the killing of two boys in 1983. Following extended discussions between the executive branches of the States of Maine and Nebraska and a request by Joubert that the charge pending in Maine be set for final disposition pursuant to the Interstate Compact on Detainers, an Executive Agreement for Temporary Custody was signed by the Governors of Nebraska and Maine. This executive agreement authorized, among other things, that Nebraska would grant Maine “temporary' custody” of Joubert.
In accordance with the Uniform Criminal Extradition Act as adopted in both states, the agreement first mandated that Joubert be taken before a court in Nebraska to be informed of Maine’s demand for his surrender, the crime with which he was charged, and his rights to counsel, to contest the extradition and to a reasonable time to apply for a writ of habeas corpus. The agreement further guaranteed:
7. That at all times hereinafter and so long as said Joubert is in the custody of Maine authorities, Maine shall at their cost appear for the State of Nebraska and resist any action which would interfere with or delay the prompt return of Joubert to Nebraska upon completion of the trial and sentencing herein contemplated.
8. That at all times hereinafter and so long as said Joubert is in custody of Maine authorities, Maine shall return Joubert to the State of Nebraska promptly upon completion, with no further extradition proceedings necessary, and no later than ten days after completion of the anticipated trial and sentencing or upon termination of the pending proceedings in any manner other than by imposition of sentence.
12. That at all times hereinafter Nebraska has a prevailing right to the custody of Joubert subject only to the trial and sentencing of Joubert concerning Cumberland County Docket Number 86-105.
Joubert was brought before a court in Lancaster County, Nebraska on January 9, 1990, and informed of his rights. Joubert informed the court that he would not file for a writ of habeas corpus and that he was “freely, voluntarily and intelligently” waiving extradition. Joubert’s attorney, however, objected to the attempt by the attorney representing the State of Nebraska to offer in evidence documents supporting lawful custody of Joubert in the State of Nebraska and a photocopy of the Executive Agreement on the ground that the exhibits were irrelevant to the issues that related to whether he was going to waive extradition on the governor’s warrant. The court overruled the objection and admitted the exhibits. Joubert’s attorney also took exception to a statement by the State of Nebraska’s counsel that the hearing was set on the motion to transfer custody pursuant to the executive agreement between the governors and a request for extradition and not under the Interstate Compact on Detainers. According to Joubert’s attorney, this statement threatened to prejudice Joubert’s rights in Maine. The court dismissed this concern with the reply that “I don’t think anything that the Court does here this afternoon can affect Mr. Joubert’s rights in the State of Maine.”
Joubert was subsequently transferred to Maine where he was arraigned on the murder charge and entered a plea of not guilty. He was tried by a jury and found guilty of Richard Stetson’s murder. Joubert was sentenced to life without parole on January 9, 1991. During the pendency of his trial, Joubert filed the present petition in the Superior Court seeking to prevent his return to Nebraska. The court ultimately treated Joubert’s petition, which contained several prayers for relief, as a petition contesting extradition pursuant to 15 M.R. S.A. §§ 210 & 210-A (1980 and Supp.1990) and M.R.Crim.P. 85-90. In a decision and order dated December 26, 1990, the court denied Joubert’s petition. Joubert then filed a timely notice of appeal that, in accordance with section 210-A, was treated as a request for a certificate of probable cause. Pursuant to M.R.Crim.P. 88(d) the docketing of that appeal constituted an automatic stay of extradition. We granted the certificate of probable cause permitting Joubert to proceed on the appeal that is now before us.
On appeal, Joubert contends that if he is returned to Nebraska under present circumstances “he will be wronged because he will be executed by a state that has lost jurisdiction over him.” Moreover, according to Joubert, returning him to Nebraska in accordance with the executive agreement will deprive him of “the full process which he became entitled to when he pleaded not guilty” to the murder charge against him in Maine. Joubert also challenges Maine’s right to return him on the grounds that his due process rights would be violated by such an extradition and on the grounds that such removal will violate the prohibition against cruel and unusual punishment in the Maine Constitution.
I.
We do not agree with the State that this case arises pursuant to sections 210 and 210-A of the Extradition Act. Both of those sections clearly speak to the rights of a person who is facing extradition to a receiving state, not of a person awaiting return to the sending state. Characterizing Joubert’s petition as one falling under sections 210 and 210-A not only runs contrary to the language of the statute but puts the State in the contradictory position of proclaiming the present inviolability of the executive agreement while at the same time proclaiming the prisoner’s statutory ability to challenge the agreement in the receiving state. Because we find these sections of the Extradition Act applicable only to persons awaiting extradition from a sending state, we hold that the court erred in characterizing Joubert’s petition as falling under sections 210 and 210-A.
For like reasons, Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1977), is not applicable to the case at bar. Like sections 210 and 210-A, Doran addressed only those cases where the prisoner challenged his impending custody in the state requesting extradition. Indeed, the Court’s language in Doran emphasized the concern that “plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art IV, § 2.” Doran, 439 U.S. at 290, 99 S.Ct. at 536.
As stated below, the relief Joubert seeks is from actions of Maine authorities not Nebraska authorities. Undoubtedly, these issues can be better litigated in Maine than in Nebraska. Because it is clear that Joubert is seeking relief from the actions of Maine authorities, we must treat Joubert’s petition as requesting civil relief from impending actions of Maine authorities. Based on our review of Joubert's claims, however, we conclude that he has stated no cognizable claim for relief.
II.
Joubert argues that the Uniform Criminal Extradition Act and the Interstate Compact on Detainers guarantee him the right to stay in Maine until the “termination of prosecution,” which he contends means the end of the appeals process. As a result, he argues, Maine would violate his rights by carrying out the mandate of the executive agreement and returning him within ten days of sentencing. Joubert also appears to argue that, even if he waived his rights under the executive agreement, all of his rights under the Interstate Compact on Detainers were preserved at his pre-extradition hearing in Nebraska.
For purposes of this appeal, we have no need to decide the statutory vehicle by which Joubert was extradited to Maine. Both statutes contain language indicating a preference for quick return of prisoners at the termination of prosecution. The relevant language of the Criminal Extradition Act, 15 M.R.S.A. § 205 (1980), states that the extradited person may be returned “to such other state at the expense of this State as soon as the prosecution or imprisonment following conviction in this State is terminated.” The language of the Interstate Compact on Detainers, 34-A M.R.S.A. § 9605 (1988), states that its purpose is to “permit prosecution on the charge or charges contained in one or more untried indictments ... which form the basis of the detainer or detainers” and mandates that a prisoner will be returned “[a]t the earliest practicable time consonant with the purposes of this agreement.”
Other than the statutory language, the only indications as to the proper meaning of these requirements are cases that indirectly address the issue. Joubert cites Watson v. Enslow, 183 Colo. 435, 517 P.2d 1346 (1974), in support of his argument that prosecution terminates at the end of the appellate process. Although Watson did speak of the end of prosecution as the end of the appellate process, it is clear the Colorado court was asked only to decide whether the governors violated Watson’s right under the Uniform Criminal Extradition Act to be returned as soon as the prosecution is terminated. Because California’s request for Watson’s return came eight years after the termination of the appellate process, the Supreme Court of Colorado appears to have used termination of the appellate process as a benchmark emphasizing the tardiness of California’s extradition request. Watson may thus help to define the outer time limit of a state’s right to demand a prisoner’s return. It is not relevant, however, for purposes of Joubert’s appeal.
A prisoner’s right to stay in the receiving state until “prosecution is terminated,” however, remains largely undefined in the cases. Construction of the statute, therefore, must best effectuate the constitutional goals of protecting a prisoner’s right to pursue his defense while at the same time respecting the concepts of comity and full faith and credit between the states. See Michigan v. Doran, 439 U.S. 282, 288, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1977). We find these goals are better served by construing the “termination of prosecution” as the entry of judgment after sentencing at the trial court level.
III.
Moreover, both Watson and cases decided under the Interstate Compact on Detainers indicate that if the action of the executive interfered with Joubert’s substantial rights as to the Maine charges, the remedy, if any, would lie in a challenge to the Maine conviction. See, e.g., Walker v. King, 448 F.Supp. 580 (S.D.N.Y.1978). Joubert cites no authority for his argument that he has a right to stay in Maine throughout the entire appellate process. The essence of the declaratory judgment he seeks is a judgment that the agreement between the governors to return him in ten days is illegal. Under the Nebraska and Maine statutes, Joubert could have challenged this agreement only before extradition. The Uniform Criminal Extradition Act specifies that an accused may contest his extradition at the time he is brought before a magistrate in the sending state. The Interstate Compact on Detainers actually states that a prisoner waives his right to contest return if he initiates the petition for extradition as Joubert did in 1989. Neither statute provides any other method for contesting the executive agreement. Joubert thus waived his right to contest the executive agreement when he was taken before a judge in Nebraska and waived his right to contest his extradition.
Joubert also argues that he should have the right to challenge a future incarceration before it happens if, once it has occurred, he will have no opportunity to make a meaningful challenge. This argument essentially seeks relief similar to the pre-extradition right of habeas corpus permitted a prisoner under the Uniform Criminal Extradition Act. See 15 M.R.S.A. § 210 & 210-A. The logic Joubert uses in this regard is rendered unconvincing by the substantive failure of his two challenges. As noted below, Joubert has absolutely no ground to challenge either Nebraska’s current jurisdiction over him or Maine’s right to return him before he has completed his appeal.
IV.
Joubert’s contention that Nebraska has waived jurisdiction is inconsistent with modern case law as well as the language of the Uniform Criminal Extradition Act as enacted in both Maine and Nebraska. Both 15 M.R.S.A. § 227 (1980) and Neb.Rev.Stat. § 29-755 (Reissue 1989) provide that:
Nothing in this chapter shall be deemed to constitute a waiver by this State of its right, power or privilege to try such demanded person for crime committed within this State, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial sentence or punishment for any crime committed within this State, nor shall any proceedings had under this chapter which result in or fail to result in extradition be deemed a waiver by this State of any of its rights, privileges or jurisdiction in any way whatsoever.
Moreover, numerous cases have held that a State does not lose jurisdiction over a prisoner when it permits extradition to another state pursuant to statutes based on the Uniform Criminal Extradition Act. See, e.g., State v. White, 131 Ariz. 228, 639 P.2d 1053 (App.1981); Dodson v. State, 497 S.W.2d 767 (Tenn.Cr.App.1973); Walsh v. State ex rel. Eyman, 104 Ariz. 202, 450 P.2d 392 (1969).
Joubert cites State v. Liakas, 165 Neb. 503, 86 N.W.2d 373 (1957), in support of his argument that, under Nebraska law, Nebraska waived jurisdiction over him when it extradited him to Maine. Joubert’s proposition that a court of this state is the proper place to litigate Nebraska law is dubious at best. In the instant situation, we find no reason to entertain a request for relief based on Nebraska law.
V.
Joubert also argues that his return to Nebraska would violate his substantive and procedural due process rights. According to Joubert, there are no Maine or Atlantic reporters in the Nebraska prison libraries and he would therefore be severely prejudiced in his ability to participate in the preparation of his appeal if returned there. The United States Supreme Court has guaranteed appellants only meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 824, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977), not absolute access to legal materials. According to the Supreme Court, “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id. at 828, 97 S.Ct. at 1498 (emphasis added). Because Joubert has been provided with Maine appellate counsel, his constitutional right of access is fully protected.
YI.
Finally, we cannot consider Joubert’s claim that returning him to Nebraska will violate his rights to be free from cruel and unusual punishment under the Maine Constitution. As the United States Supreme Court has emphasized on numerous occasions, the extradition clause, as well as the notions of full faith and credit and comity do not allow an asylum state to pass upon actions taken by the courts of a sister state. See, e.g., Michigan v. Doran, 439 U.S. at 287-288, 99 S.Ct. at 534-535. Review of the actions of Nebraska authorities under the Maine Constitution would clearly violate these constitutional norms.
VII.
Joubert has requested time to secure a stay of his return to Nebraska from the United States Supreme Court. Until our mandate is entered in the Superior Court, the automatic stay of Rule 88(d) remains in effect. Nevertheless, M.R. Civ.P. 76A(a) will govern the issuance of our mandate because we decide that Joubert’s petition is civil in nature. The fourteen day delay in issuance of our mandate is sufficient for Joubert to apply to the Supreme Court for a stay. Accordingly, we decline to grant Joubert an order staying his return beyond the fourteen day delay prescribed in Rule 76A(a).
The entry is:
Remanded with direction to enter the judgment of December 26,1990 on the civil docket; as so entered the judgment is affirmed.
All concurring.
For like reasons, Joubert cannot claim that an impending capital sentence in Nebraska requires this court to allow him to stay in Maine until he has completed his appeal. Joubert’s conviction is void ab initio and the indictment against him dismissed if he dies before his appeal is resolved. State v. Carter, 299 A.2d 891 (Me.1973). If Joubert is executed in Nebraska, there will no longer be a charge against him in Maine, and no cognizable interest to be protected.
We note, however, that although Liakas does have explicit language to the effect that the state loses jurisdiction over a prisoner when it extradites him, it was decided six years before the enactment of the non-waiver clause currently codified in Nebraska Laws at section 29-755. Thus, Liakas has been superceded by the language of this non-waiver clause.
STATE of Maine v. John J. JOUBERT, IV.
Supreme Judicial Court of Maine.
Argued Jan. 10, 1992.
Decided Feb. 21, 1992.
Michael E. Carpenter, Atty. Gen., Wayne S. Moss (orally), Asst. Atty. Gen., Augusta, for State.
Jens-Peter W. Bergen (orally), Hodsdon & Associates, Kennebunk, for defendant.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.
[OPINION BY McKUSICK, Chief Justice. type=majority]
McKUSICK, Chief Justice.
Defendant John J. Joubert, IV, appeals his conviction for murder entered in the Superior Court (Lincoln County, Bradford, J.) after a jury.trial. We affirm.
During the evening of August 22, 1982, 11-year-old Ricky Stetson was murdered while jogging around Back Cove in Portland. He was killed by a combination of a stab wound to the chest and strangulation. In addition, he suffered a distinctive wound of a human bite mark on the back of his right leg, on top of which were a stab wound and crisscross slashes, an apparent attempt to cover up the bite mark. The next morning, August 23, Ricky Stetson’s body was discovered by a passerby on the grass near Tukey’s Bridge.
As a result of information supplied by several people who had been in the Back Cove area at the time of the murder, the police investigation eventually came to focus on defendant Joubert. Nineteen years old at the time of the murder, he grew up in Portland, graduated from a local high school, and worked at various jobs. In December of 1982, just over three months after the Stetson murder, Joubert left Portland to join the Air Force and later was stationed in Nebraska. In 1984, Airman Joubert was arrested in Nebraska and charged with the separate murders of two young Nebraska boys, both of whom had been stabbed to death. He pleaded guilty to both crimes and on October 9, 1984, was sentenced to death on both charges. An automatic appeal to the Nebraska Supreme Court ensued.
On January 8, 1986, a Cumberland County grand jury indicted Joubert for Ricky Stetson’s murder. In January 1990, Joubert, then still sitting on death row in Nebraska while pursuing postconviction relief, was transferred to Maine for trial on the Stetson indictment. The Superior Court moved the venue of Joubert’s trial to Lincoln County, where jury selection began on October 2, 1990. After nine days of trial the jury on October 15 found Joubert guilty, and the court sentenced him to life imprisonment. Joubert filed a timely appeal.
I.
Alleged Speedy Trial Violation
Joubert first contends that the 57-month delay between January 8, 1986, when he was indicted for the Stetson murder, and October 2, 1990, when his trial began, violated his constitutional right to a speedy trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 6, of the Maine Constitution. We do not agree.
The analysis of a speedy trial claim is identical under both the Federal and the State Constitutions. See State v. Beauchene, 541 A.2d 914, 918 (Me.1988). That fact specific analysis, set forth by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), requires us to apply a “delicate balancing test that takes into account all of the circumstances of the case at hand.” State v. Murphy, 496 A.2d 623, 627 (Me. 1985). While there is no exhaustive list of factors to be considered, the Supreme Court identified four: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker, 407 U.S. at 530, 92 S.Ct. at 2192. The first Barker factor can be dispositive in that if the delay between indictment and trial in the particular case is not sufficiently long to raise an inference of prejudice to defendant, “there is no necessity for inquiry into the other factors that go into the balance.” Id.; see also Beauchene, 541 A.2d at 918. In the circumstances of the case at bar, where Joubert while imprisoned in Nebraska was indicted in Maine for a murder that had occurred 3V2 years before, a delay of nearly five years in bringing Joubert to trial is plainly long enough to raise an inference of prejudice and thereby to necessitate further analysis using the other three Barker factors. Mindful of the fact that “these factors have no talismanic qualities,” Barker, 407 U.S. at 533, 92 S.Ct. at 2193; see also Beauchene, 541 A.2d at 915, but rather are part of a sensitive and delicate ad hoc balancing, we conclude from a full Barker analysis that Joubert’s right to a speedy trial was not violated.
Following his 1984 convictions in Nebraska on his guilty pleas to the two Nebraska murders, Joubert challenged his two death sentences by a succession of direct appeals and of petitions for postconviction relief. The Nebraska Supreme Court affirmed his convictions on December 29, 1986, and the denial of his petitions for postconviction relief on May 5, 1990. During this time, starting in January 1986 when Joubert was indicted in Maine and concluding four years later, the Attorneys General of Maine and Nebraska tried in good faith to work out an agreement between the Governors of those states by which Nebraska would transfer Joubert to Maine to stand trial and Maine would after trial return him promptly to Nebraska for the carrying out of his Nebraska death sentences. In those negotiations Nebraska officials expressed reluctance to release Joubert from their custody because of concern that he might not be promptly returned to Nebraska after his Maine trial.
It was not until September 1989 that Joubert, while still in Nebraska awaiting the Nebraska Supreme Court’s decision on his petitions for postconviction relief, first asked to be transferred to Maine, and on November 7, 1989, he filed a motion for a speedy trial in the Maine Superior Court and formally requested the disposition of the Maine charges against him. Finally, in January 1990 the two States worked out an executive agreement and Joubert was transferred to Maine later that month.
The second Barker factor, the reasons for the delay in bringing Joubert to trial, provides no basis for finding a speedy trial violation here. During the time between the indictment and Joubert’s request to be returned to Maine for trial, he was incarcerated in Nebraska for the two murders he had pleaded guilty to having committed in that state. From the time Joubert’s Maine indictment was returned until late 1989, the Maine Attorney General’s Office actively pursued an agreement with the State of Nebraska in order to have Joubert transferred here. During that time Nebraska authorities informed Maine authorities that Joubert intended to fight extradition. Thus, the delay until at least his September 1989 request to be returned to Maine weighs heavily against Joubert. See Beauchene, 541 A.2d at 919 (fighting extradition and time spent handling defendant’s motions attributable to defendant). Even after Joubert’s September 1989 request for trial in Maine, he could not be returned until the State of Nebraska was willing to release him, and that agreement did not come until January 1990. A later 5-month delay in the trial originally scheduled for July 1990 resulted from a continuance granted on Joubert’s own motion. That delay is also attributable to him. See id. Thus, at most the 10 months between Joubert’s first request to return to Maine (September 1989) and the originally scheduled trial date (July 1990) can be charged in any way to the State. Even in that period, trial was delayed by a succession of pretrial motions filed by Joubert.
In our analysis of the reasons for the 57-month delay, it is also significant that in this record we can find no sign of “any bad faith or improper motive on the State’s part” to delay Joubert's trial. State v. Goodall, 407 A.2d 268, 281 (Me.1979). Defendant’s argument that the State is responsible for the delay because it did not inform him of the charge and so did not afford him an opportunity to apply pressure to be returned to Maine to face a speedy trial, misapprehends the process involved. The State of Maine did not have it within its power to bring Joubert back to Maine. His return depended entirely on whether, and when, the State of Nebraska decided to release Joubert to the Maine authorities.
Consideration of the other two Barker factors confirms that the Superior Court correctly denied Joubert’s speedy trial motion. The third Barker factor, defendant’s assertion of his right to a speedy trial, does not help Joubert. He made no request to come back for trial in Maine until September 1989, 44 months after his indictment. Although that fact does not count heavily against Joubert because until May 1989 he did not have Maine counsel and was not given formal notice of the nature and extent of the Maine charge until still later, see State v. Steeves, 383 A.2d 1379, 1383 (Me.1978), Joubert at the same time draws no benefit from the third Barker factor. Finally, on the fourth Barker factor of prejudice, Joubert makes only a speculative contention that the 57-month delay may have prejudiced him by resulting in the unavailability of defense witnesses who could have testified for him had the trial been held soon after the 1986 indictment. Joubert, however, comes forward with no specification of any witness who would have provided him an alibi or have contradicted the State’s case against him. In light of the overwhelming evidence linking Joubert to the Stetson murder and the entirely speculative nature of the alleged lost testimony, the degree of prejudice from the delay, if any existed, weighs little in Joubert’s favor in the Barker analysis.
In sum, on a full analysis of the circumstances of this case under the four Barker factors, Joubert falls far short of showing any violation of his constitutional right to a speedy trial.
II.
Nebraska Journalist’s Interview of Joubert
During Joubert’s Maine trial, the court admitted the testimony of Nebraska journalist Mark Pettit who, in the course of gathering material for a book, had interviewed Joubert several times in prison in Nebraska. By Pettit’s testimony, Joubert, in response to a question whether he had killed Ricky Stetson, said, “I can’t lie to you. I can’t say I didn’t do it.” Joubert now argues that his statement should have been excluded because Pettit acted as an agent for the State and thus admission of his statements in the interviews violated his Fifth and Sixth Amendment rights. We do not agree.
The protections of those Amendments do not extend to a defendant’s incriminating statement made to a private individual unless that individual is acting on behalf of the government or the statement results from police subterfuge or intimidation. See, e.g., Arizona v. Mauro, 481 U.S. 520, 526-30, 107 S.Ct. 1931, 1934-37, 95 L.Ed.2d 458 (1987); Maine v. Moulton, 474 U.S. 159, 177 n. 14, 106 S.Ct. 477, 488 n. 14, 88 L.Ed.2d 481 (1983). Contrary to Joubert’s contention, Pettit was not motivated by an interest in advancing the police investigation; he did not exchange information with the police and did not provide them with any statements by Joubert. Pettit had no working relationship with the police, nor did the police ask him to discuss certain topics with or ask certain questions of Joubert. Rather, his purpose was entirely self-directed toward his goal of writing a book. Joubert, although he knew of Pettit’s plan for a book, did not impose any restrictions on Pettit’s use of his interview statements. Rather, he signed a release giving Pettit permission to talk with him and to use information from the interviews for any “legitimate purpose.”
Joubert’s reliance on Tarnef v. State, 512 P.2d 923 (Alaska 1973), is misplaced. In that case the putative agent worked closely with the police and had promised to turn over to them any statements he obtained from the prisoner. In contrast, Pettit was not working to further the case of the police against Joubert; he owed no obligation to the police. A private investigation into a crime, although facilitated by the police by giving the investigator access to a defendant held in custody or access to police files on the case, does not, without more, become state action. Pettit’s prison interview of Joubert did not violate his Fifth or Sixth Amendment rights.
III.
Evidence of Similar Bite Marks on Another Joubert Victim
Danny Joe Eberle was one of the Nebraska boys whom Joubert pleaded guilty to murdering in 1984. In Maine, over Joubert’s objection, Pettit, the Nebraska journalist, testified that Joubert told him that during an encounter with Eberle, he had bitten Eberle in several places and that over the bite mark on Eberle’s left thigh he had “used a knife to try to hide the mark by cutting it or carving it.” At trial the State carefully avoided eliciting any testimony showing that Eberle had been killed or that Joubert had been convicted in Nebraska for his murder. The trial court admitted the evidence on the ground that it was “signature” evidence tending to identify Joubert as Ricky Stetson’s killer. Joubert contends that the admission of this evidence was error. We do not agree.
The evidence of the Eberle bite wound is evidence of a prior bad act. M.R.Evid. 404(b) bars the admission of evidence of a prior bad act for one specific purpose; namely, to prove the character of a person in order to show that he acted in conformity therewith. Rule 404(b) in no way, however, prohibits the use of such evidence for other purposes, including proving the identity of a perpetrator, provided of course that the proffered evidence is relevant under M.R.Evid. 402 and provided that it is not excluded under M.R.Evid. 403 on the ground its probative value is substantially outweighed by the danger of unfair prejudice caused the defendant. See State v. Leone, 581 A.2d 394, 400 (Me.1990) (citing advisor’s note to M.R.Evid. 404(b) for proposition that prior bad acts are admissible when offered for another purpose, such as proof of motive or intent). See also Field & Murray, Maine Evidence § 404.3, at 109 (1987).
We review only for clear abuse of discretion the trial court’s determination that the Eberle bite wound evidence is admissible under Rules 402 and 403. See State v. Whitmore, 591 A.2d 244, 245 (Me.1991) (clear abuse-of-discretion standard used to review M.R.Evid. 403 ruling); State v. Wallace, 431 A.2d 613, 616 (Me.1981) (trial court has broad discretion in ruling on admissibility of relevant evidence challenged as unfairly prejudicial under M.R.Evid. 403).
The trial court made its determination of the admissibility of the Eberle wound evidence in the course of ruling on Joubert’s motion in limine that all evidence concerning Joubert’s murder of Eberle be excluded. The court had before it a stipulation by the parties detailing the similarity of the Maine and Nebraska crimes. That stipulation amply supports the trial court’s initial determination that the circumstances of the Eberle murder, particularly Eberle's bite wounds, are relevant to proving the identity of the Stetson killer. Ricky Stetson and Danny Joe Eberle were both white males of about the same age and height. Both boys were killed by knife stabs and both were bitten on the leg and had crisscross slash wounds that attempted to disguise the bite marks. Before being attacked, both victims were on foot and had been stalked by their assailant. While neither was sexually assaulted, both had been bound, and the bodies of both had been left at the murder sites. The court was properly persuaded that the particularly distinctive bite wounds of both Eberle and Stetson made the Eberle wound evidence relevant. The Eberle bite wound was relevant evidence as defined by M.R.Evid. 401 because it tends to make it more probable that Joubert was the person who killed Ricky Stetson. The unusual bite marks with concomitant slashes, together with the similar physical characteristics and manner of death of both victims, “are sufficiently idiosyncratic” to support the reasonableness of the trial court’s inference that they were killed by the same person. See United States v. Pisan, 636 F.2d 855, 859 (1st Cir.1981).
Even though relevant as identity evidence, the Eberle bite wound evidence must nonetheless be excluded pursuant to M.R.Evid. 403 “if its probative value is substantially outweighed by the danger of unfair prejudice.” See Wallace, 431 A.2d at 616. The mere harmfulness of the evidence to the defendant’s case is not what is meant by unfair prejudice. See State v. Heald, 393 A.2d 537, 542 (Me.1978). Here the trial court did not abuse its discretion in concluding that the Eberle bite wound evidence, introduced without any reference to Eberle’s death and Joubert’s conviction, was not so unfairly prejudicial as to outweigh substantially its probative value in establishing the identity of Ricky Stetson’s killer. Evidence of the Eberle bite wound, in isolation, had a high probative value bearing directly on the issue of the Stetson killer’s identity. Following the court’s dictate, the State limited its presentation to only the evidence of Eberle’s bite mark and slash wounds and Joubert’s responsibility for them. Moreover, the court gave the jury a limiting instruction explaining that it could consider the Eberle bite wound evidence only on the identity issue. Given the narrow scope of Pettit’s testimony and the jury instruction, the trial court did not abuse its discretion in determining that any unfair prejudice that Joubert might suffer did not substantially outweigh the high probative value of that evidence.
IV.
Sketch Drawn from Hypnotically Refreshed Description
Joubert next contends that the trial court erred in admitting a police sketch that was drawn on the basis of a witness’s hypnotically refreshed description of a bicyclist seen following Ricky Stetson on the evening of his murder. We do not agree.
The law on the global issue of the admissibility of hypnotically refreshed testimony is in a state of flux. We, however, need not address the global issue. Even assuming for purposes of analysis that hypnosis “is dangerously able to plant a fixed and perhaps erroneous image in the person’s mind,” see State v. Commeau, 438 A.2d 454, 458 (Me.1981), the particular concerns about the reliability of post-hypnotic testimony are not presented in the case at bar.
On the evening that Ricky Stetson was murdered, P.V., who knew Stetson as a former neighbor, saw him jogging along Back Cove with an unknown bicyclist following him. A few weeks later and before Joubert had become a suspect in the investigation, V. agreed to be hypnotized at the request of the police. At the time of the hypnosis neither V. nor Dr. Burnham, the medical doctor doing the hypnosis, nor the police conducting the Stetson murder investigation knew Joubert or had any reason to suspect Joubert’s involvement in the crime. Before the hypnosis session, neither the police nor anyone else showed V. a photograph or sketch of anyone, let alone Joubert. Dr. Burnham was a private practitioner in Gorham and not a police department employee, and he knew no more about the case than that a young boy had been killed while jogging in the vicinity of Back Cove and that witnesses had seen another person in the area at about the time of the murder.
The only evidence at trial that involved V.’s hypnosis in any way was the police sketch of the unknown bicyclist he had seen following Ricky Stetson on the evening of the murder. At trial V. testified to the events of that evening just as he had told the police prior to the hypnosis session; and he could not identify Joubert either from photographs in the media or in person in the courtroom. The narrow issue presented here in whether the trial court erred by admitting the police sketch solely because it was drawn from V.’s hypnotically enhanced memory of the appearance of the unknown bicyclist.
In Commeau we pointed out that even assuming the unreliability of hypnotically refreshed testimony, “there could [on the Commeau facts] have been no suggestion as to the defendant since he was not considered a suspect until a day after the hypnosis procedure.” Id. The reasoning of Commeau is controlling in the case at bar. As was the situation in that case, even if the police or Dr. Burnham had wanted to suggest Joubert to the hypnotized witness, they could not have done so since they themselves did not know for whom they were looking. See, e.g., Zani v. State, 767 S.W.2d 825, 836 (Tex.Ct.App.1989), on remand from 758 S.W.2d 233 (Tex.Cr.App.1988) (applying a totality-of-the-circumstances test: “To the extent the hypnotist lacks information, he is not in a position to bias, unduly influence, or contaminate the hypnotized person’s recollections”); Daniels v. State, 528 N.E.2d 775, 778 (Ind.1988), vacated on other grounds, 491 U.S. 902, 109 S.Ct. 3182, 105 L.Ed.2d 691 (1989) (acknowledging a rule of per se inadmissibility, but allowing the admission of hypnotically refreshed testimony in a case where the police had no suspects at the time of the hypnosis and were unaware of the defendant’s involvement). In these circumstances then, the admission of V.’s hypnotically refreshed testimony and the resulting sketch was not error.
V.
Joubert’s Challenge to the New Sentence Review by the Law Court
Acting pursuant to a 1989 statute providing for sentence appeals to the Law Court, Joubert filed a petition for appellate review of his life sentence. After a preliminary review of his petition, the three-justice Sentence Review Panel denied the appeal on the ground that it did not have enough merit to justify a review by the full Law Court. Joubert now contends that the 1989 statute changed the law of appellate sentence review in a way to violate the ex post facto clauses of both the United States and Maine Constitutions, U.S. Const. art. I, § 10; Me. Const. art. I, § 11. We do not agree.
In 1982, when Ricky Stetson was murdered, a defendant sentenced to imprisonment for one year or more could appeal the sentence only to the Appellate Division of the Supreme Judicial Court, a panel consisting of three justices of the court. See 15 M.R.S.A. §§ 2141, 2142 (1980). In 1989 the legislature repealed sentence review by the Appellate Division and substituted appeals to the full Law Court, subject to the discretionary allowance of a petition for appellate review by a three-justice Sentence Review Panel. See P.L.1989, ch. 218, §§ 1-2, 5 (effective September 30, 1989), codified at 15 M.R.S.A. §§ 2151-2157 (Supp.1991).
As an initial proposition, it is immediately apparent that the 1989 statute does not present any ex post facto problem; the post-1989 sentence appeals process on its face is no “more onerous than [that provided by] the prior law.” Miller v. Florida, 482 U.S. 423, 431, 107 S.Ct. 2446, 2452, 96 L.Ed.2d 351 (1987). Under both the earlier statute and the present one, a defendant’s sentence is reviewed by a panel of three justices of the Supreme Judicial Court. The present statute adds an additional level of sentence review by the full Law Court if any one of the three justices finds enough merit in the appeal to grant the defendant’s petition. The present review of petitions for appellate review of sentences by the first three justices, even if it ends in denial, involves the same review as was accorded such appeals by the former three-justice Appellate Division. It is obvious that a sentence appeal such as Joubert’s that lacks enough merit to get a full substantive review under the post-1989 statute would have been denied also by the Appellate Division under the prior statute. The 1989 sentence appeal statute in no way increases the burdens upon a defendant and in no way decreases his opportunity for appellate review of his sentence.
A full ex post facto analysis brings us to the same conclusion. The United States Supreme Court has recently reaffirmed its holding in Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925), restricting the circumstances in which a change in a criminal statute will violate the constitutional prohibition of ex post facto legislation. See Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). By the Collins analysis, an ex post facto violation exists only i) if the new statute punishes as a crime an act that was innocent when done, or ii) if it makes more burdensome the punishment for a crime after its commission, or iii) if it deprives one charged with crime of a defense available according to law at the time the act was committed. See id., at -, 110 S.Ct. at 2719, 111 L.Ed.2d at 39. The 1989 sentence review statute made none of these unconstitutional changes in the law applicable to the case at bar.
VI.
Conclusion
On his appeal Joubert makes several other contentions, but after full examination we find none of them merits discussion. Joubert fails to demonstrate any reversible error in his conviction for the 1982 murder of Ricky Stetson.
The entry is:
Judgment affirmed.
All concurring.
While Joubert's present appeal from his conviction was pending, he filed a habeas corpus petition in the Superior Court seeking to prevent his being promptly returned by Maine to Nebraska as required by a prior agreement between the Governors of those States. We affirmed the Superior Court’s denial of his petition. See Joubert v. McKeman, 588 A.2d 748 (Me.1991).
The Supreme Court’s most recent pronouncement on the issue in Rock v. Arkansas, 483 U.S. 44, 59-60, 107 S.Ct. 2704, 2713-14, 97 L.Ed.2d 37 (1987) (perse exclusion of defendant’s own hypnotically refreshed testimony violated the due process right to conduct one’s own defense), identifies three generally accepted shortcomings of hypnotically refreshed testimony: [T]he subject becomes “suggestible" and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to “confabulate,” that is, to fill in details from the imagination, in order to make an answer more coherent and complete; and, the subject experiences "memory hardening," which gives him great confidence in both true and false memories, making effective cross-examination more difficult. Other courts have recognized three additional problems associated with hypnosis: i) pseudo-memory, ii) source amnesia, and iii) loss of critical judgment. See, e.g., State v. Adams, 418 N.W.2d 618, 623 n. 5 (S.D.1988). Other jurisdictions have developed at least four different approaches: i) per se admissibility, the fact of hypnosis going to weight and credibility, see, e.g., State v. Peoples, 311 N.C. 515, 319 S.E.2d 177 (1984), ii) per se inadmissibility, see, e.g., People v. Zayas, 131 Ill.2d 284, 137 Ill.Dec. 568, 546 N.E.2d 513 (1989), iii) adherence to procedural guidelines, see, e.g., State v. Hurd, 86 N.J. 525, 432 A.2d 86 (1981) (seminal case), or iv) the totality of the circumstances, see, e.g., People v. Romero, 745 P.2d 1003 (Colo.1987), cert. denied, 485 U.S. 990, 108 S.Ct. 1296, 99 L.Ed.2d 506 (1988).
State of Nebraska, appellee, v. John J. Joubert, appellant.
518 N.W.2d 887
Filed July 8, 1994.
No. S-84-842.
Mark A. Weber, of Walentine, O’Toole, McQuillan & Gordon, for appellant.
Don Stenberg, Attorney General, and J. Kirk Brown for appellee.
Hastings, C.J., Boslaugh, White, Caporale, Fahrnbruch, Lanphier, and Wright, J J.
[OPINION BY Per Curiam. type=majority]
Per Curiam.
Notwithstanding the existence of a stay issued by the U.S. District Court for the District of Nebraska, the plaintiff State, through its Attorney General, has moved this court to set still another date for executing the convicted prisoner, John J. Joubert. The prisoner has responded by filing a special appearance objecting to this court’s jurisdiction over the matter and by filing a motion for sanctions, claiming that given the pendency of the federal stay, the Attorney General’s motion is frivolous and vexatious. For the reasons hereinafter stated, the prisoner’s special appearance is overruled, the Attorney General’s motion is overruled without prejudice, and the prisoner’s motion for sanctions is overruled without prejudice.
PARTI
Upon pleading guilty, the prisoner was convicted in the district court of two counts of first degree murder and sentenced to death on each count. This court affirmed those sentences in State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986), and thereupon issued its mandate to the district court with the direction to “enter judgment in conformity with the judgment and opinion of this court.” This court subsequently issued a warrant ordering that Joubert be put to death by passing an electric current through his body. That order of execution was stayed by the U.S. Supreme Court on Joubert’s petition for a writ of certiorari. Upon the termination of that stay, this court issued a second death warrant. Upon Joubert’s motion, this court itself later stayed that order of execution so that he might pursue his legislatively created proceeding for postconviction relief. When that quest proved unsuccessful, State v. Joubert, 235 Neb. 230, 455 N.W.2d 117 (1990), this court issued a third death warrant. That order of execution was again stayed by the U.S. Supreme Court on another petition by Joubert for a writ of certiorari. Upon the termination of that stay, this court issued the fourth death warrant, yet again ordering that Joubert be put to death. On July3,1991,theU.S. District Court for the District of Nebraska, upon Joubert’s petition for federal habeas corpus relief, entered an order staying “execution of [the] sentence” pending resolution of the petition. Joubert v. Hopkins, case No. 8:CV 91-00350.
PART II
This opinion concerns itself with the two issues presented by the Attorney General’s motion and the prisoner’s special appearance: whether this court has jurisdiction to entertain the Attorney General’s motion and, if so, whether this court may set an execution date notwithstanding the federal stay of the “sentence.”
1. Jurisdiction
There are two aspects to the prisoner’s claim that this court lacks jurisdiction to entertain the Attorney General’s motion: the contention that no court possesses jurisdiction to set successive execution dates and the position that even if such jurisdiction exists, this court has surrendered its jurisdiction to the district court.
Whether jurisdiction exists to entertain the Attorney General’s motion in turn breaks down into two questions: whether there is a statutory basis for such jurisdiction and whether there is any other basis for such jurisdiction.
Because the Legislature has addressed the setting of execution dates in several statutes, we initially turn to those enactments for guidance in determining whether, upon appeal to this court, an execution date is properly set by this or the original sentencing court.
Neb. Rev. Stat. § 29-2543 (Supp. 1993) provides:
Whenever any person has been tried and convicted before any district court in this state of a crime punishable by death and under the conviction has been sentenced by the court to suffer death, it shall be the duty of the clerk of the court before which the conviction was had to issue a warrant, under the seal of the court, reciting therein the conviction and sentence directed to the warden of the Nebraska Penal and Correctional Complex, commanding him or her to proceed at the time named in the sentence to carry the same into execution____
However, Neb. Rev. Stat. § 29-2525 (Reissue 1989) grants a prisoner convicted and sentenced to death an automatic appeal to this court, during which time Neb. Const, art. I, § 23, stays execution of the sentence until further order of this court. See State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977), cert. denied 434 U.S. 878, 98 S. Ct. 231, 54 L. Ed. 2d 158, reh’g denied 434 U.S. 961, 98 S. Ct. 496, 54 L. Ed. 2d 322.
Neb. Rev. Stat. § 29-2528 (Reissue 1989) further provides that after consideration of the appeal, this court shall “order the prisoner to be discharged, a new trial to be had, or appoint a day certain for the execution of the sentence.”
Accordingly, there is no question that this court has the statutory jurisdiction to set an execution date once it has considered the prisoner’s automatic appeal and determined that death is the legally appropriate sentence.
Neither is there any basis for an argument that no state court has the jurisdiction to reset an execution date once the initial date set has passed. Without regard to who has the duty of fixing the date, the failure to execute a death warrant on the original date fixed does not result in the discharge of a prisoner sentenced to die, but requires the court to fix a new date for the execution. In Iron Bear v. Jones, 149 Neb. 651, 658, 32 N.W.2d 125, 129 (1948), we said, “ ‘Where a defendant in a criminal action has been legally sentenced to death and has not been executed at the time fixed in the death warrant, he is not entitled to be discharged... but a new date for the execution may be fixed by the proper court.’ ” See, Simmons v. Fenton, 113 Neb. 768, 205 N.W. 296 (1925); State v. Miller, 169 Kan. 1, 217 P.2d 287 (1950).
The question, then, is whether this court has the statutory jurisdiction to set a new execution date upon the expiration of an earlier date it had set and to issue a warrant thereon. In these regards, the statutes are not entirely clear.
Neb. Rev. Stat. § 29-2544 (Reissue 1989), without giving direction as to who is to issue the document, provides that upon receipt of a death warrant fixing the execution date, the warden of the Nebraska Penal and Correctional Complex shall proceed at the time named in the warrant to carry out the sentence. In addition, Neb. Rev. Stat. § 29-2545 (Reissue 1989) provides that if a writ of error is granted and execution of the proceedings is suspended, this court may thereafter issue a warrant commanding the warden to carry the sentence into execution at the time stated therein. However, with the exception of coram nobis, the 1972 amendment of Neb. Const, art. I, § 23, abolished writs of error and instead provided for review by appeal to this court. In re Contempt of Liles, 217 Neb. 414, 349 N.W.2d 377 (1984); State v. Longmore, 178 Neb. 509, 134 N.W.2d 66 (1965) (Legislature abolished writ of error in 1961).
It is true that where the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language. State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983), cert. denied 484 U.S. 872, 108 S. Ct. 206, 98 L. Ed. 2d 157 (1987). But when the language used in a statute requires interpretation or may reasonably be considered ambiguous, the statute is open to construction. Coleman v. Chadron State College, 237 Neb. 491, 466 N.W.2d 526 (1991).
Although a penal statute must be strictly construed, it is to be given a sensible construction, and general terms are to be limited in their construction and application so as to avoid injustice, oppression, or an absurd consequence. See, State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993); State v. Pierson, 239 Neb. 350, 476 N.W.2d 544 (1991). Further, in construing a statute, an appellate court must look at the statutory objective to be accomplished, problem to be remedied, or purpose to be served, and then place on the statute a reasonable construction which best achieves its purpose, rather than a construction which will defeat the purpose. Saulsbury, supra; State v. Seaman, 237 Neb. 916, 468 N.W.2d 121 (1991). In construing a statute, the court must attempt to give effect to all of its parts, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless; it is not within the province of the court to read anything plain, direct, and unambiguous out of the statute. State ex rel. Grams v. Beach, 243 Neb. 126, 498 N.W.2d 83 (1993). The language of a statute is to be considered in its plain, ordinary, and popular sense. Arizona Motor Speedway v. Hoppe, 244 Neb. 316, 506 N.W.2d 699 (1993); State ex rel. Grams, supra.
Moreover, a series or collection of statutes pertaining to a certain subject matter, statutory components of acts which are in pari materia, may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of an act are consistent, harmonious, and sensible. AMISUB v. Board of Cty. Comrs. of Douglas Cty., 244 Neb. 657, 508 N.W.2d 827 (1993); Arizona Motor Speedway, supra; State v. Escamilla, 237 Neb. 647, 467 N.W.2d 59 (1991). Furthermore, in construing a statute, the legislative intention is to be determined from a general consideration of the whole act with reference to the subject matter to which it applies and the particular topic under which the language in question is found, and the intent as deduced from the whole will prevail over that of a particular part considered separately. Neumeyer v. Omaha Public Power Dist., 188 Neb. 516, 198 N.W.2d 80 (1972).
By the time of the enactment of § 29-2545, the Legislature had already abolished most writs of error and provided that appeals under the criminal code would be the same as for civil cases. See Longmore, supra. We must therefore conclude that when read with the legislative purpose in mind, § 29-2545 grants this court jurisdiction to set an execution date and issue a warrant upon completion of an appeal.
Thus, when the foregoing statutes are read conjunctively, they provide that after appeal, this court sets an execution date. Further, under the provisions of §§ 29-2543 and 29-2545, this court has jurisdiction to set successive execution dates and issue warrants as may be needed to carry out the sentence.
In point of fact, this court has in the past set execution dates and issued death warrants in at least 14 appeals. Some of these cases involved setting execution dates numerous times during the appeal and postconviction process. E.g., State v. Anderson, S-42301; State v. Harper, S-43070; State v. Hochstein, S-42302; State v. Holtan, S-40638; State v. Joubert, S-84-842; State v. Moore, S-43557; State v. Otey, S-42204; State v. Palmer, S-84-733; State v. Peery, S-40967; State v. Reeves, S-81-706; State v. Rust, S-40451; State v. Ryan, S-86-946; State v. Victor, S-88-982; State v. Williams, S-42235. And in Otey v. State, 240 Neb. 813, 485 N.W.2d 153 (1992), we instructed that as this court had issued the death warrant which had been stayed, further application for a death warrant should be filed with this court.
Generally, where a statute has been judicially construed and that construction has not evoked amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of its intent. Erspamer Advertising Co. v. Dept. of Labor, 214 Neb. 68, 333 N.W.2d 646 (1983). See, also, State, ex rel. Case Threshing Machine Co., v. Marsh, 117 Neb. 832, 223 N.W. 126 (1929); State, ex rel. Village of Dakota City, v. Bryan, 112 Neb. 692, 200 N.W. 870 (1924); State, ex rel. Western Bridge & Construction Co., v. Marsh, 111 Neb. 185, 196 N.W. 130 (1923); Douglas County v. Vinsonhaler, 82 Neb. 810, 118 N.W. 1058 (1908) (it is one of principles governing interpretation and construction of statutes that where meaning of statute is dubious, long usage is just medium by which to expound it).
The contention that this court needs separate statutory or other authority to issue a death warrant in addition to the authority to set an execution date overlooks that the death warrant in this context is nothing more than an extension of the setting of a date. Thus, no separate authority to issue a warrant is required. See, State v. Armstrong, 45 Or. 25, 74 P. 1025 (1904) (once death warrant issued, subsequent death warrant not needed); Commonwealth v. Hill, 185 Pa. 385, 39 A. 1055 (1898); Hopkinson v. State, 704 P.2d 1323 (Wyo. 1985), cert. denied 474 U. S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564.
It should also be noted that even in the absence of such statutory jurisdiction, this court possesses the inherent judicial power to set successive execution dates and issue death warrants. The inherent judicial power of a court is that power which is essential to the court’s existence, dignity, and functions. See In re Integration of Nebraska State Bar Ass’n, 133 Neb. 283, 275 N.W. 265 (1937). Such power is not derived from legislative grant or specific constitutional provision, but from the very fact that this court has been created and charged by the Constitution with certain duties and responsibilities. See id. See, also, Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979). Accordingly, the Legislature cannot limit the exercise of inherent judicial power, such being essential to the existence of the court and the orderly and efficient exercise of the administration of justice. Inherent judicial power exists in addition to the express grants of judicial power to each court and originates in the mandate of the Nebraska Constitution of the separation of powers between three coequal branches, or departments, of government. State, ex rel. Ralston, v. Turner, 141 Neb. 556, 4 N.W.2d 302 (1942). See, Neb. Const. art. II, § 1; Beard v. N.C. State Bar, 320 N.C. 126, 357 S.E.2d 694 (1987).
In addressing the nature of inherent power of the courts in In re Integration of Nebraska State Bar Ass’n, we wrote:
The Constitution does not, by any express grant, vest the power to define and regulate the practice of law in any of the three departments of government. In the absence of an express grant of this power to any one of the three departments, it must be exercised by the department to which it naturally belongs because “It is a fundamental principle of constitutional law that each department of government, whether federal or state, ‘has, without any express grant, the inherent right to accomplish all objects naturally within the orbit of that department, not expressly limited by the fact of the existence of a similar power elsewhere or the express limitations in the Constitution.’...”
(Emphasis in original.) 133 Neb. at 285, 275 N.W. at 266.
The power arises from necessity where, in the absence of any previously established procedural rule, rights would be lost or the court would be unable to function. Cottle v. Superior Court (Oxnard Shores Co.), 3 Cal. App. 4th 1367, 5 Cal. Rptr. 2d 882 (1992).
This court has recognized the inherent power of courts in many cases and circumstances, e.g., Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501 N.W.2d 281 (1993) (inherent power to dismiss action for disobedience of court order); Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500 N.W.2d 529 (1993) (courts inherently possess power to stay civil proceedings when required by interests of justice); In re Interest of D.A., 239 Neb. 264, 475 N.W.2d 511 (1991) (within inherent power of court to appoint guardian ad litem in absence of statutory requirements); State Farm Mut. Auto. Ins. Co. v. Royal Ins. Co., 222 Neb. 13, 382 N.W.2d 2 (1986) (allowance of attorney fees made pursuant to inherent power of court); Creager v. Creager, 219 Neb. 760, 366 N.W.2d 414 (1985) (inherent power to continue court’s jurisdiction over alimony judgment to avoid inequitable results); Kirby v. Liska, 214 Neb. 356, 334 N.W.2d 179 (1983) (courts have authority to monitor and determine reasonableness of contingent fee contract under inherent power to regulate the bar); State ex rel. Partin v. Jensen, 203 Neb. 441, 279 N.W.2d 120 (1979) (inherent power of court may be exercised as to bail, although not specifically vested by statute); Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975) (inherent power to appoint counsel to represent indigent misdemeanant); Roach v. Roach, 192 Neb. 268, 220 N.W.2d 27 (1974) (court has inherent power to retain jurisdiction to determine amounts due and enforce its judgment); State, ex rel. Ralston, supra (inherent power to regulate conduct and qualifications of attorneys); and In re Integration of Nebraska State Bar Ass’n, supra (inherent power to promulgate rules providing for integration of bar of state).
Through its inherent judicial power, this court has authority to do all things that are reasonably necessary for the proper administration of justice, whether any previous form of remedy has been granted or not. In re Integration of Nebraska State Bar Ass’n, supra. See, Kovarik, supra; Beard, supra. A court that has jurisdiction to make a decision also has the power to enforce it by making such orders as are necessary to carry its judgment or decree into effect. State ex rel. Brubaker v. Pritchard, Judge, etc., 236 Ind. 222, 138 N.E.2d 233 (1956); State ex rel. Watkins v. Land and Timber Company, Limited, 106 La. 621, 31 So. 172 (1902); State ex rel. Martin v. Superior Court, 101 Wash. 81, 172 P. 257 (1918). Contra Dexter & Carpenter v. Kunglig Jarnvagsstyrelsen, 43 F.2d 705 (2d Cir. 1930), cert. denied 282 U.S. 896, 51 S. Ct. 181, 75 L. Ed. 789 (1931).
Neb. Const. art. V, § 2, vests this court with, among other things, “such appellate jurisdiction as may be provided by law” and requires that the judges of this court hear and determine all appeals “involving capital cases.” As noted earlier, § 29-2525 grants a prisoner sentenced to death an automatic appeal to this court, during which period the sentence is constitutionally stayed. Thus, the only question is whether the setting of successive execution dates is necessary to the administration of justice so as to fall within the scope of inherent powers.
Courts in other jurisdictions have answered affirmatively, holding that setting an execution date is within the courts’ inherent powers necessary to allow them to enforce their own judgments. State v. Miller, 169 Kan. 1, 217 P.2d 287 (1950) (once state supreme court affirmed death sentence on appeal and entered order setting execution date, was within court’s inherent authority to enforce judgment and order); Williams v. Moore, 262 F.2d 335 (5th Cir. 1959), cert. denied 360 U.S. 911, 79 S. Ct. 1297, 3 L. Ed. 2d 1261. In Williams, much like the situation presented here, no statutory authority existed for the court to set a new date after the expiration of the stay. See, Upshaw v. State, 350 So. 2d 1358 (Miss. 1977) (inherent power of court to prescribe rules of procedure for cases involving death penalty); Beck v. State, 396 So. 2d 645 (Ala. 1980).
The primary duty of the courts is the proper and efficient administration of justice. In re Integration of Nebraska State Bar Ass’n, 133 Neb. 283, 275 N.W. 265 (1937). See, also, In Matter of Richards, 333 Mo. 907, 63 S.W.2d 672 (1933). Likewise, it is the duty of a court to see that justice is administered speedily, without delay, and legally, and in conformity to constitutional mandates. Knox County Council v. State ex rel. McCormick, 217 Ind. 493, 29 N.E.2d 405 (1940). See, People v. Felella, 131 Ill. 2d 525, 546 N.E.2d 492 (1989) (judicial power includes adjudication and application of law, administration of courts, and imposition of criminal sentences); State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976) (trial court has inherent power to enforce its own orders).
Accordingly, this court has the inherent power, as well as the statutory power, to set successive execution dates and issue death warrants as the circumstances may dictate.
It is urged, however, that once the mandate of this court issued, the court no longer retained jurisdiction; rather, jurisdiction was returned to the district court in order that it might enter judgment in accordance with the mandate. See, State v. Horr, 232 Neb. 380, 441 N.W.2d 139 (1989); Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673 (1950); State Bank of Beaver Crossing v. Mackley, 118 Neb. 734, 226 N. W. 318 (1929) (when some action was taken by district court upon mandate, that court acquired exclusive jurisdiction of cause).
But Rehn notes that a ministerial act may be completed by this court even after its mandate is issued because such act “in no way involves a reconsideration of the judicial determinations made.” 152 Neb. at 177, 40 N.W.2d at 677 (award of costs which is part of judgment awarded could be corrected after issuance of mandate and without its recall and even after district court has taken action on mandate). See State v. Blankenfeld, 228 Neb. 611, 423 N.W.2d 479 (1988) (where county court’s judgment and sentence appealed to district court and to this court, which remanded upon affirmance to district court, district court was not required to remand to county court for performance of ministerial task of enforcing order of this court). Because the setting of an execution date has been uniformly held to be a ministerial and not a judicial act, this court retains the authority to set an execution date. See, Pate v. State, 393 P.2d 247 (Okla. Crim. 1964); Ex parte Grayson, 86 Okla. Crim. 86, 187 P.2d 232 (1948); Rose v. Commonwealth, 189 Va. 771, 55 S.E.2d 33 (1949). See, also, Iron Bear v. Jones, 149 Neb. 651, 32 N.W.2d 125 (1948) (time designated by court for executing sentence of death is not part of sentence; it is simply order prescribing time when sentence shall take effect); In re Cross, 146 U.S. 271, 13 S. Ct. 109, 36 L. Ed. 969 (1892); Schwab v. Berggren, 143 U.S. 442, 12 S. Ct. 525, 36 L. Ed. 218 (1892).
It has “long been settled that, ‘The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied.’ ” Williams, 262 F.2d at 338 n.4. See Anderson v. State, 267 So. 2d 8 (Fla. 1972) (where supreme court originally obtained jurisdiction of certain criminal cases because each was capital case, court would retain jurisdiction for all purposes until final disposition of case). Contra State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex. Crim. App. 1974) (once criminal court of appeals has acquired jurisdiction, it is only by judgment of that court that jurisdiction over case is restored to lower court, which acquires jurisdiction of case only to see that judgment of criminal court of appeals is carried out). Thus, this court retains jurisdiction to set an execution date and issue a death warrant notwithstanding the issuance of a mandate to the inferior court.
Moreover, in order for the inferior court to reacquire jurisdiction, it must take action on this court’s mandate. Here, Neb. Rev. Stat. § 29-2522 (Reissue 1989) prevented the district court from setting an execution date “until after the conclusion of the appeal provided for by section 29-2525.” This court’s mandate did not direct the district court to set an execution date, and we find nothing in the record which demonstrates that the district court undertook to do so. Consequently, the issuance of this court’s mandate did not surrender its jurisdiction to the district court.
2. Exercise of Jurisdiction
The Attorney General contends in the brief for appellee that notwithstanding the pendency of the federal court stay, this court may and should set an execution date in the future so as to provide the federal court with a deadline within which to adjudicate the matter before it. He concedes, however, that if the federal court fails to meet such a deadline, the State would be powerless to prepare for and to carry out the sentence.
A prisoner who has been sentenced to death has two separate avenues of review by the federal courts. If a federal question is involved, a prisoner sentenced to death may seek review by the U.S. Supreme Court by petitioning that court for a writ of certiorari. Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), reh’g denied 464 U.S. 874, 104 S. Ct. 209, 78 L. Ed. 2d 185. In addition, Congress has provided for federal review via habeas corpus. Not only is a stay permitted in the event of a direct appeal, 28 U.S.C. § 2101(f) (1988), but 28 U.S.C. § 2251 (1988) provides that once a federal stay has been granted in a habeas corpus action, any proceeding in any state court or by or under any state authority shall be void. See, also, U.S. Sup. Ct. R. 23; Fed. R. Crim. P. 38; 8th Cir. R. 8A.
In Rogers v. Peck, 199 U.S. 425, 436, 26 S. Ct. 87, 50 L. Ed. 256 (1905), the U.S. Supreme Court, in speaking of U.S. Comp. Stat. § 766 (1901), the predecessor to § 2251 (see In re Strauss, 126 F. 327 (1903)), said:
Statutes should be given a reasonable construction with a view to make effectual the legislative intent in their enactment. The object of this statute is apparent. It requires the state courts and authorities to make no order and entertain no proceeding which shall interfere with the full examination and final judgment in a habeas corpus proceeding in the Federal courts ....
See, Louie Yung v. Coleman, 5 F. Supp. 702 (D. Idaho 1934) (state authorities and courts are prevented by this statute from making any order or entering any proceedings which shall interfere with full determination and final judgment in habeas corpus proceeding pending in federal court); Rogers, supra (statute aims to entirely prevent action which shall interfere with perfect freedom of federal courts to inquire into case and make such orders and render such judgment as they shall see fit).
In like vein, in In re Shibuya Jugiro, 140 U.S. 291, 295, 11 S. Ct. 770, 35 L. Ed. 510 (1891), the U.S. Supreme Court had written:
Of the object of the statute there can be no doubt. It was — in cases where the applicant was held in custody under the authority of a state court or by the authority of a State — to stay the hands of such court or State, while the question as to whether his detention was in violation of the Constitution, laws or treaties of the United States was being examined by the courts of the Union having jurisdiction in the premises. But the jurisdiction of the state court in the cases specified is restrained only pending the proceedings in the courts of the United States, and until final judgment therein.
In accord are the decisions of United States v. Shipp, 203 U.S. 563, 27 S. Ct. 165, 51 L. Ed. 319 (1906), and United States v. Brown, 281 F. 657 (8th Cir. 1922). In Shipp, the prisoner, who had been sentenced to death for a rape, presented a petition for a writ of habeas corpus. After denial of the writ, he appealed to the U.S. Supreme Court. The Court allowed the appeal and ordered that all proceedings against the prisoner be stayed and custody of the prisoner be retained pending the appeal. The sheriff and his deputies were informed of the Court’s stay but conspired to break into the jail for the purpose of lynching and murdering the defendant. The U.S. Supreme Court declared:
[T]he order suspended further proceedings by the State against the prisoner and required that he should be forthcoming to abide the further order of this court. It may be found that what created the mob and led to the crime was the unwillingness of its members to submit to the delay required for the trial of the appeal. From that to the intent to prevent that delay and the hearing of the appeal is a short step. If that step is taken the contempt is proved.
203 U.S. at 575.
Similarly, in Brown, after the prisoner had appealed to the U.S. Court of Appeals for the Eighth Circuit and while the appeal was pending, the county attorney, sheriff, and clerk of the district court were proceeding to “try, convict, and imprison the petitioner under the indictment in the case.” 281 F. at 661. The Eighth Circuit Court stated that if the actions of the state proceeded to imprisonment pending the appeal, the power of the court to grant relief to the petitioner would have been impaired, if not destroyed. Thus, it had the power to protect and preserve its jurisdiction and to give effect to its jurisdiction unimpaired.
The Attorney General advises this court he “perceivefs] no tension between a stay of execution issued by a federal court and the establishment of a viable date of execution for a death-sentenced prisoner should that prisoner’s last established execution date have passed as a result of a federal stay of execution.” Brief for appellee at 13. In part, the Attorney General argues that the stay precludes only the execution of the prisoner, not the ministerial act of setting a date on which the execution is to be carried out. See Pate v. Smith, 393 P.2d 247 (Okla. Crim. 1964).
However, in In re Ebanks, 84 F. 311 (N.D. Cal. 1897), aff’d sub nom., Ebanks v. Hale, 168 U.S. 707, 18 S. Ct. 942, 42 L. Ed. 1214, when, during the pendency of an appeal and stay, the state court made an order directing the warden to carry into execution the judgment convicting the prisoner of murder by inflicting upon him on a stated date the penalty of death, the federal court held that it necessarily followed from its grant of an appeal and the stay imposed upon all proceedings in the state court that the state’s order was given without jurisdiction and was absolutely void. Moreover, if carried into effect, the federal court stated, the state’s actions would deprive the prisoner of the right to have the judgment of that court in the matter of his petition for a writ of habeas corpus reviewed by the U.S. Supreme Court, a right guaranteed to him by the laws of the United States. See Ex parte Martin, 180 E 209 (D. Or. 1910) (after issuance of writ, state court is wholly without authority to proceed further as against prisoner).
It has also been held that preparations by a state consisting of moving the prisoner from his cell on death row to a special holding area with the intent to carry out the death sentence promptly if the state’s motion to vacate was granted are improper. Smith v. Armontrout, 825 E2d 182 (8th Cir. 1987). The court in Smith held that the prisoner should not be subject to these “ ‘preparations’ ” until the habeas corpus petition was dismissed and the stay of execution finally dissolved. Id. at 184. See Levine v. Torvik, 986 F.2d 1506 (6th Cir. 1993), cert. denied _U.S___ 113 S. Ct. 3001, 125 L. Ed. 2d 694 (pursuant to § 2251 district court has authority to grant stay of all state court proceedings that have effect of defeating or impairing federal court’s jurisdiction; stay is necessary to preserve status quo); Jackson v. Justices of Superior Court of Mass., 423 F. Supp. 50 (D. Mass. 1976), judgment vacated 549 F.2d 215 (1st Cir. 1977), cert. denied 430 U.S. 975, 97 S. Ct. 1666, 52 L. Ed. 2d 370 (court has jurisdiction under § 2251 to stay state court proceedings where it is necessary to do so to prevent state from acting in manner which will render relief by federal court meaningless).
In Bates v. Estelle, 483 F. Supp. 224 (S.D. Tex. 1980), the court disposed of a similar argument that a stay did not reach purely ministerial or administrative acts of the court. Therein, the respondents, the director of the Texas Department of Corrections and the sheriff, argued that the execution of a state court mandate is not a proceeding within the terms of § 2251 and could not be stayed pending a ruling on the petition. The court defined the respondents’ argument as being, in effect, that Congress considered habeas corpus rights important enough to authorize federal courts to halt or even void state court proceedings but not to authorize federal courts to interfere with administrative and ministerial actions related to these proceedings. Characterizing the argument as untenable, the court held that the execution of a state court sentence was a proceeding in the sense that the federal district court had the power to stay the execution of its mandate calling for the habeas corpus petitioner’s incarceration pending review of a habeas corpus petition.
To determine what constitutes a “proceeding ... in any State court” for the purposes of § 2251, the Bates court turned to the construction given to similar language in the federal Anti-Injunction Act. See 28 U.S.C. § 2283 (1988). According to the U.S. Supreme Court, the term “ ‘proceedings in a State court’ ” in the Anti-Injunction Act “ ‘includes all steps taken or which may be taken in the state court or by its officers from the institution to the close of the final process.’ ” Bates, 483 F. Supp. at 227. See, Hill v. Martin, 296 U.S. 393, 56 S. Ct. 278, 80 L. Ed. 293 (1935) (stay of proceedings in any court of state applies alike to action by court and its ministerial officers; applies not only to execution issued on judgment, but to any proceeding supplemental or ancillary taken with view to making suit or judgment effective); Leathe v. Thomas, 97 F. 136 (7th Cir. 1899) (prohibition of statute extends not only to proceedings up to and including final judgments, but to entire proceedings from commencement of suit until execution); American Ass’n v. Hurst, 59 F. 1 (6th Cir. 1893) (act of executive officer of court done under color of its process is to be regarded as proceeding of that court); Black’s Law Dictionary 1204 (6th ed. 1990) (term “proceeding” refers to “[r]egular and orderly progress in form of law, including all possible steps in an action from its commencement to execution of judgment... an act necessary to be done in order to obtain a given end”).
While we agree that the purpose of a stay is to prevent a state from doing an act which is challenged and may be declared unlawful in a pending proceeding, In re Strauss, 126 F. 327 (1903), we must reject the Attorney General’s position that the setting of an execution date is exempted from the stay.
The setting of execution dates in anticipation of the termination of a stay clearly constitutes preparation for the carrying out of an execution, in violation of federal law. See Clair v. Vasquez, 827 F. Supp. 1465 (C.D. Cal. 1993) (seven jurisdictional challenges by state to stays of execution close to line between advocacy and frivolousness); Smith v. State, 145 So. 2d 688 (Miss. 1962) (affirmative action by state court on state’s motion to have new date set for execution of death sentence precluded where justice of U.S. Supreme Court stayed execution of death sentence of defendant pending action of Court on defendant’s petition for certiorari).
Thus, the Attorney General asks us not only to perform a useless act, he asks us to perform a lawless one. It appears he has overlooked that U.S. Const, art. VI subjects the State of Nebraska to the “Constitution, and the Laws of the United States” and that he has sworn not only to support the Constitution of this state, but that of the United States as well. Neb. Const, art. XV, § 1; Neb. Rev. Stat. § 7-104 (Reissue 1991).
It must be borne in mind that the “legal barriers that exist to preserve the individual’s constitutional rights and protect against the unlawful execution of a death sentence” separate the unlawful killing by a person and the lawful killing by the state. Mercer v. Armontrout, 864 F.2d 1429, 1431 (8th Cir. 1988). “If the law is not given strict adherence, then we as a society are just as guilty of a heinous crime as the condemned felon.” Id.
Concerns for finality to a state’s judgments do not outweigh the absolute need to protect against the deprivation of an individual’s constitutional rights which might invalidate his capital sentence. Mercer, supra.
PART III
We therefore hold that this court may not set an execution date anticipating the termination of a federal stay. The prisoner’s special appearance is overruled, and the Attorney General’s motion is overruled without prejudice.
Although it is clear from the foregoing analysis that the Attorney General could have had no legitimate legal reason for moving for the setting of an execution date while a federal stay was pending, because this is the first time we have directly so held, we overrule, without prejudice, the prisoner’s motion for sanctions.
Special appearance overruled. Motion for setting of execution date overruled without prejudice.
Motion for sanctions overruled without prejudice.