State v. Torres

283 Neb. 142

812 N.W.2d 213

STATE of Nebraska, appellee,

v.Marco Enrique TORRES, Jr., appellant.

No. S–10–111.

Supreme Court of Nebraska.

Feb. 3, 2012.

Syllabus by the Court

[283 Neb. 142]1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

2. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb.Rev.Stat. §§ 27–403 and 27–404(2) (Reissue 2008), and the trial court's decision will not be reversed absent an abuse of discretion.

3. Statutes. The interpretation of a statute presents a question of law.

4. Motions to Suppress: Confessions: Constitutional Law: Appeal and Error. In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, an appellate court applies a two-part standard of review. With regard to historical facts, an appellate court reviews the trial court's findings for clear error. Whether those facts suffice to meet the constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court's determination.

5. Judgments: Appeal and Error. When issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

6. Sentences: Aggravating and Mitigating Circumstances: Appeal and Error. When reviewing the sufficiency of the evidence to sustain the trier of fact's finding of an aggravating circumstance, the relevant question for the Nebraska Supreme Court is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the aggravating circumstance beyond a reasonable doubt.

7. Sentences: Aggravating and Mitigating Circumstances: Appeal and Error. A sentencing panel's determination of the existence or non-existence of a mitigating circumstance is subject to de novo review by an appellate court.

8. Rules of Evidence: Other Acts.Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner.

9. Rules of Evidence: Other Acts. Evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008).

10. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is often referred to as having a “special” or “independent” relevance, which means that its relevance does not depend upon its tendency to show propensity.

11. Rules of Evidence: Other Acts: Appeal and Error. An appellate court's analysis under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith; (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice; and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

12. Rules of Evidence. A proponent of evidence offered pursuant to Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered, and the trial court shall similarly state the purpose or purposes for which such evidence is received.

13. Rules of Evidence: Jury Instructions. Any limiting instruction given upon receipt of evidence offered pursuant to Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), shall likewise identify only those specific purposes for which the evidence was received.

14. Intent: Words and Phrases. Intent is generally defined as the state of mind accompanying an act.

15. Rules of Evidence: Other Acts. Under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), evidence of other crimes or wrongs, while not admissible to prove the character of a person in order to show that he or she acted in conformity therewith, is admissible for other purposes, including motive.

[283 Neb. 144]16. Words and Phrases. Though difficult to define, character has been describedas the generalized tendency to act in a particular way.

17. Criminal Law: Words and Phrases. Motive is defined as that which leads or tempts the mind to indulge in a criminal act.

18. Jury Instructions: Appeal and Error. In making a determination as to whether the giving of an overly broad jury instruction is harmless, an appellate court must decide whether the giving of the instruction materially influenced the jury to reach a verdict adverse to the substantial rights of the defendant.

19. Conspiracy: Hearsay: Rules of Evidence.Neb. Evid. R. 801(4)(b)(v), Neb.Rev.Stat. § 27–801(4)(b)(v) (Reissue 2008), is applicable regardless of whether the defendant is charged with conspiracy.

20. Conspiracy: Hearsay: Rules of Evidence. Before a trier of fact may consider testimony under Neb. Evid. R. 801(4)(b)(v), Neb.Rev.Stat. § 27–801(4)(b)(v) (Reissue 2008), a prima facie case establishing the existence of a conspiracy must be shown by independent evidence.

21. Sentences: Death Penalty. That a method of execution is cruel and unusual punishment bears solely on the legality of the execution of the sentence and not on the validity of the sentence itself.

22. Statutes: Constitutional Law: Sentences. A law which purports to apply to events that occurred before the law's enactment, and which disadvantages a defendant by creating or enhancing penalties that did not exist when the offense was committed, is an ex post facto law and will not be endorsed by the courts.

23. Constitutional Law: Appeal and Error. The Nebraska Supreme Court ordinarily construes Nebraska's ex post facto clause to provide no greater protections than those guaranteed by the federal Constitution.

24. Aggravating and Mitigating Circumstances: Mental Distress: Juries. A jury may not consider a victim's mental anguish in finding the existence of the aggravating circumstance set forth in Neb.Rev.Stat. § 29–2523(1)(d) (Reissue 2008).

25. Aggravating and Mitigating Circumstances: Proof: Words and Phrases. Exceptional depravity pertains to the state of mind of the actor and may be proved by or inferred from the defendant's conduct at or near the time of the offense.

26. Homicide: Aggravating and Mitigating Circumstances. The Nebraska Supreme Court has identified specific narrowing factors that support a finding of exceptional depravity: (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.

27. Homicide: Aggravating and Mitigating Circumstances: Other Acts: Words and Phrases. History as contemplated by Neb.Rev.Stat. § 29–2523(1)(a) (Reissue 2008) refers to the individual's past acts preceding the incident for which he or she is on trial, and substantial refers to an actual, material, and important history of acts of terror of a criminal nature, but does not refer to the particular incident involving the homicide for which he or she is subject to sentence.

28. Sentences: Aggravating and Mitigating Circumstances: Proof. There is no burden of proof with regard to mitigating circumstances, but because the capital sentencing statutes do not require the State to disprove the existence of mitigating circumstances, the risk of nonproduction and nonpersuasion is on the defendant.

[283 Neb. 145]29. Aggravating and Mitigating Circumstances: Words and Phrases. For purposes of Neb.Rev.Stat. § 29–2523(2)(c) (Reissue 2008), extreme means that the disturbance must be existing in the highest or the greatest possible degree, very great, intense, or most severe.

30. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. In reviewing a sentence of death, the Nebraska Supreme Court conducts a de novo review of the record to determine whether the aggravating and mitigating circumstances support the imposition of the death penalty.

31. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. In reviewing a sentence of death, the Nebraska Supreme Court considers whether the aggravating circumstances justify imposition of a sentence of death and whether any mitigating circumstances found to exist approach or exceed the weight given to the aggravating circumstances.

32. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. The Nebraska Supreme Court is required, upon appeal, to determine the propriety of a death sentence by conducting a proportionality review, comparing the aggravating and mitigating circumstances with those present in other cases in which a district court imposed the death penalty.

33. Sentences: Death Penalty: Aggravating and Mitigating Circumstances: Appeal and Error. The Nebraska Supreme Court's proportionality review, which is separate from the sentencing panel's, looks only to other cases in which the death penalty has been imposed and requires the court to compare the aggravating and mitigating circumstances of a case with those present in other cases in which the death penalty was imposed, and ensure that the sentence imposed in a case is no greater than those imposed in other cases with the same or similar circumstances.

Kirk E. Naylor, Jr., Lincoln, and Peter K. Blakeslee for appellant.

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