Nebraska v. Ellis
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Defendant Roy Ellis was convicted of first-degree murder in connection with the killing of a 12-year old girl. For this, he was sentenced to death. Defendant appealed his conviction and sentence to the Supreme Court. Although many issues were presented on appeal, the primary issue for the Court to decide was whether the trial court erred by admitting certain evidence of Defendant's "prior bad acts," and whether that evidence prejudiced him. Defendant argued that the district court erred by allowing evidence of prior sexual assaults to his stepdaughters, and abused its discretion by denying two mistrial requests when that evidence was ultimately admitted. The Supreme Court reviewed the record and concluded that Defendant was not prejudiced by the admission of the evidence. The Court found no merit to his other claims, and affirmed Defendant's conviction and sentence.
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Nebraska Advance Sheets
state v. ellis
Cite as 281 Neb. 571
571
in violation of the Fifth Amendment to the U.S. Constitution
and Neb. Const. art. I, § 12.
In In re Interest of J.R.,34 we held that SOCA does not constitute ex post facto legislation because it is not punitive in
nature. We are not persuaded by the argument that we should
reconsider this holding. Indeed, we recently reaffirmed it in In
re Interest of A.M.,35 where we also held that because SOCA
is not punitive in nature, it cannot violate the coextensive protections afforded by the Double Jeopardy clauses of the state
and federal Constitutions. Accordingly, we conclude that the
district court did not err in overruling D.H.’s motion to dismiss
the petition on constitutional grounds.
V. CONCLUSION
For the reasons discussed above, we overrule D.H.’s motion
to dismiss the appeal and affirm the judgment of the district court.
Affirmed.
Wright, J., not participating.
34
35
Id.
In re Interest of A.M., ante p. 482, ___ N.W.2d ___ (2011).
State of Nebraska, appellee, v.
Roy L. Ellis, appellant.
___ N.W.2d ___
Filed May 27, 2011.
No. S-09-148.
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. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion.
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4. Rules of Evidence: Other Acts: Proof. Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 2008), prohibits the admissibility of relevant evidence
for the purpose of proving the character of a person in order to show that he or
she acted in conformity therewith; or, stated another way, the rule prohibits the
admission of other bad acts evidence for the purpose of demonstrating a person’s
propensity to act in a certain manner.
5. Evidence: Other Acts. Other acts evidence may have probative value as to
identity where there are overwhelming similarities between the other crime and
the charged offense or offenses, such that the crimes are so similar, unusual,
and distinctive that the trial judge could reasonably find that they bear the
same signature.
6. ____: ____. In evaluating other acts evidence in criminal prosecutions, the other
act must be so related in time, place, and circumstances to the offense or offenses
charged so as to have substantial probative value in determining the guilt of
the accused.
7. Trial: Evidence: Juries: Appeal and Error. Evidentiary error is harmless when
improper admission of evidence did not materially influence the jury to reach a
verdict adverse to substantial rights of the defendant.
8. Motions for Mistrial. The decision to grant a motion for mistrial is within the
trial court’s discretion.
9. Motions for Mistrial: Motions to Strike: Proof. A defendant faces a higher
threshold than merely showing a possibility of prejudice when attempting to
prove error predicated on the failure to grant a mistrial. Instead, the defendant
must prove the alleged error actually prejudiced him or her, rather than creating
only the possibility of prejudice.
10. Pretrial Procedure: Appeal and Error. Trial courts have broad discretion with
respect to sanctions involving discovery procedures, and their rulings thereon will
not be reversed in the absence of an abuse of discretion.
11. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.
12. Trial: Expert Witnesses. Under the Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), framework, once the reasoning or methodology of expert opinion testimony has been found to be reliable,
the court must determine whether the methodology was properly applied to the
facts in issue.
13. ____: ____. A general foundational objection is insufficient to preserve an issue
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop, 262 Neb. 215,
631 N.W.2d 862 (2001).
14. Trial: Expert Witnesses: Pretrial Procedure. To sufficiently call specialized
knowledge into question under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman v.
Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), is to object with enough
specificity so that the court understands what is being challenged and can accordingly determine the necessity and extent of any pretrial proceeding.
Nebraska Advance Sheets
state v. ellis
Cite as 281 Neb. 571
573
15. 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.
16. 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.
17. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, an appellate court is obligated to reach a
conclusion independent of the decision reached by the court below.
18. Constitutional Law: Statutes. A grant of administrative authority is not necessarily an unconstitutional delegation of legislative power.
19. Administrative Law: Statutes: Legislature. The Legislature may enact statutes to set forth the law, and it may authorize an administrative or executive
department to make rules and regulations to carry out an expressed legislative purpose.
20. Constitutional Law: Legislature. Although the limitations of the power granted
and the standards by which the granted powers are to be administered must be
clearly and definitely stated in the authorizing act, where the Legislature has provided reasonable limitations and standards for carrying out the delegated duties,
there is no unconstitutional delegation of legislative authority.
21. Legislature. Delegation of legislative power is most commonly indicated where
the relations to be regulated are highly technical or where regulation requires a
course of continuous decision.
22. Constitutional Law: Sentences: Death Penalty: Jurors. In death penalty cases,
an eligibility or selection factor is not unconstitutional if it has some commonsense core of meaning that a juror can understand.
23. Constitutional Law: Sentences: Death Penalty: Appeal and Error. Because
the proper degree of definition of eligibility and selection factors in death penalty
cases often is not susceptible of mathematical precision, a vagueness review is
quite deferential.
24. Homicide: Aggravating and Mitigating Circumstances. “Exceptional 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.
25. Sentences: Aggravating and Mitigating Circumstances: Juries. Mitigating
circumstances, and the “weight” to be assigned to the aggravating and mitigating
circumstances, are relevant only to the sentencing panel’s exercise of its discretion to decide which statutorily authorized sentence to impose and do not require
determination by a jury.
26. Federal Acts: Actions. Like substantive federal law itself, private rights of action
to enforce federal law must be created by Congress.
27. ____: ____. The judicial task is to interpret the statute Congress has passed to
determine whether it displays an intent to create not just a private right but also
a private remedy. Without it, a cause of action does not exist and courts may not
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28.
29.
30.
31.
32.
33.
34.
35.
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create one, no matter how desirable that might be as a policy matter or how compatible with the statute.
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.
Trial: Witnesses: Juries. The credibility of witnesses is for the jury, and a jury’s
findings may be based upon the uncorroborated testimony of a single witness.
Sentences: Aggravating and Mitigating Circumstances: Appeal and Error.
A capital sentencing panel’s determination of the existence or nonexistence of a
mitigating circumstance is subject to de novo review by the Nebraska Supreme
Court.
Sentences: Aggravating and Mitigating Circumstances: Proof. While there is
no burden of proof with regard to mitigating circumstances, 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.
Sentences: Death Penalty: Appeal and Error. In a capital sentencing proceeding, the Nebraska Supreme Court conducts an independent review of the record to
determine if the evidence is sufficient to support imposition of the death penalty.
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.
____: ____: ____: ____. 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. The purpose
of such review is to ensure that the sentence imposed in a case is no greater than
those imposed in other cases with the same or similar circumstances.
____: ____: ____: ____. 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.
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
W. Patrick Dunn, Jerry M. Hug, and Alan G. Stoler, P.C.,
L.L.O., for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown for
a
ppellee.
Nebraska Advance Sheets
state v. ellis
Cite as 281 Neb. 571
575
Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ., and Sievers, Judge.
Gerrard, J.
Roy L. Ellis was convicted of first degree murder in connection with the killing of 12-year-old Amber Harris and
sentenced to death. This is Ellis’ automatic direct appeal from
his conviction and sentence. Although many issues are presented on appeal, the primary issue we must decide is whether
the trial court erred in admitting evidence of prior bad acts
committed by Ellis and whether Ellis was prejudiced by that
evidence. We conclude that Ellis was not prejudiced by admission of the evidence and find no merit to his other assignments
of error.
I. background
Amber disappeared on November 29, 2005, after she was
dropped off by her school bus about five blocks from her North
Omaha, Nebraska, home. A few weeks later, Ellis was arrested
and incarcerated in the Douglas County Correctional Center on
unrelated charges. Several witnesses reported that while in jail,
before Amber’s body was found or Ellis was a suspect in her
killing, he made a number of remarks suggesting that he was
involved in Amber’s disappearance.
To begin with, Ellis made telephone calls from jail suggesting that he needed to get out of jail to take care of some things
and “find some stuff.” Ellis had lived in a boarding house on
Lake Street, although he moved to another residence nearby
before Amber disappeared. While in jail, Ellis called his former
neighbors, asking repeatedly about any activity at the boarding
house. But no more of those calls were made after February
14, 2006, when Amber’s bookbag was found in a large trash
storage container behind the boarding house. Although Ellis
continued to call his former neighbor after the bag was found,
he no longer asked about the boarding house.
While he was incarcerated during early 2006, Ellis also
repeatedly asked Terrelle Smith, a Douglas County corrections
officer, for information regarding Amber’s case. Because Smith
See Neb. Rev. Stat. § 29-2525 (Reissue 2008).
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was studying criminal justice, Ellis also asked him questions
about criminal investigation, regarding subjects such as finger
print identification and the decomposition of buried bodies.
Ellis asked Smith whether blood or semen left outside would
be contaminated by the elements and how long it would take
before contaminated semen would no longer be considered rele
vant evidence. And Ellis asked Smith for books on forensics
and DNA examination. Ellis also asked Brandon Clark, another
corrections officer, about how long semen would last inside a
dead body and in a forested, rural area and asked Clark to perform Internet research for him on the subject.
Ellis also asked Darryl Chambers, a fellow inmate, if he
knew how long semen would last inside a decomposed body.
And another inmate, Clarence Dennis, heard Ellis asking
other inmates questions about how long blood and semen
would last when exposed to the elements and what was necessary to keep dirt from subsiding above a buried body. Clenix
Martin, another inmate, said Ellis had asked him about the
persistence of DNA left outside, whether DNA could be traced
after a body had decomposed, and how long it took a body
to decompose.
Ellis also made more particular statements that foreshadowed what would be discovered about the circumstances of
Amber’s disappearance after her body was found. Dennis heard
Ellis say that he had previously taken women to Hummel Park,
in a rural area north of Omaha, and forced them to have sex
with him by threatening to leave them in the park alone at
night. Smith overheard Ellis saying that if a woman did not do
what he wanted, “[h]e would just hit them upside their heads.”
Ellis told Chambers that he liked underage girls. Ellis told his
cellmate, David Shaffer, that he had sexually molested underage girls, some of them at Hummel Park.
Shaffer said that Ellis expressed an unusual interest in
Amber’s disappearance and cut out newspaper articles about
the case. Ellis told Martin that he had sexually assaulted a
young girl and strangled her. When Shaffer mentioned to
Ellis that it was “crazy what happened to that Amber Harris
girl,” Ellis replied, “that’s why I got to get out and cover my
tracks.” And both Dennis and Chambers said Ellis had admitted to sexually assaulting Amber and striking her in the head.
Nebraska Advance Sheets
state v. ellis
Cite as 281 Neb. 571
577
According to Dennis, Ellis said he hit Amber in the head with
a hammer.
Finally, on May 11, 2006, Amber’s decomposed body was
discovered by passers-by, covered with a mound of soil, in
a secluded, wooded area of Hummel Park. Amber had been
killed by blunt force trauma to the skull, resulting from at least
two blows to the head with a blunt object. Because of decomposition, it was impossible to tell whether Amber had also been
choked or strangled. Although Amber’s sweater was still on,
her jeans and underwear had been removed. Amber’s jacket,
jeans, and bra had been found in her bookbag. Amber’s blood
was on the jacket and jeans, and DNA was found on the jeans,
in a shape resembling a handprint, in a mixture from which
Ellis could not be excluded as a contributor.
Ellis was charged with first degree murder on theories of
both premeditated murder and felony murder, for which the
predicate felony was sexual assault. Over Ellis’ objection, in
addition to the evidence described above, the State adduced
evidence that Ellis had sexually assaulted his former stepdaughters when they were between 12 and 15 years old. The
jury found Ellis guilty of first degree murder, and an aggravation hearing was held at which the jury found two aggravating
circumstances to exist. A three-judge sentencing panel sentenced Ellis to death.
More specific details will be set forth below as they relate to
some of Ellis’ separate arguments.
II. Analysis
Ellis’ assignments of error can be separated into two broad
categories: issues relating to evidence at trial and issues arising
out of the capital sentencing proceedings.
1. Evidentiary Issues
(a) Rule 404 Evidence
(i) Background
The State, over Ellis’ objection, presented testimony from
Ellis’ former stepdaughters that Ellis had sexually assaulted
them during a 3-year period from 1993 to 1995. Ellis’ first
assignment of error takes issue with that evidence.
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The State argued that the evidence was relevant to the issues
of motive, identity, intent, and opportunity. The district court
agreed in part, finding that the crimes were sufficiently similar
to help establish the identity of Amber’s killer. The court reasoned that Amber was of a similar age to Ellis’ stepdaughters
and also noted that when Ellis had first assaulted one of the
girls, he removed her pants but left her shirt on, similar to the
condition in which Amber’s body had been discovered. And
one of the girls testified that Ellis struck her in the head with
his fist. The court also found that the prior assaults were rele
vant to prove that Ellis acted intentionally for the purpose of
forced sexual penetration.
However, the court rejected the State’s contention that the
prior bad acts were relevant to motive, reasoning that the
State’s argument on motive actually went to Ellis’ propensity
to commit such acts. And the court found that the assaults did
nothing to show Ellis’ opportunity to attack Amber.
Nonetheless, the court found that the probative value of
the evidence outweighed its potential for unfair prejudice,
and admitted it subject to an instruction to the jury to consider the evidence only as relevant to identity and intent. And
in opening and closing arguments, the State argued that the
prior assaults tended to prove that Ellis was the killer and that
he acted intentionally. Ellis moved for a mistrial during the
State’s closing argument, asserting that the State was using
the evidence to prove Ellis’ propensity to act. But that motion
was overruled.
(ii) Assignments of Error
Ellis assigns that the district court committed reversible
error in admitting evidence of the prior sexual assaults on Ellis’
stepdaughters, because intent and identity were not proper purposes for receipt of said evidence, and abused its discretion in
denying two mistrial requests due to prosecutorial misconduct
where the State argued propensity in context of the evidence
admitted pursuant to Neb. Evid. R. 404.
(iii) Standard of Review
[1-3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Advance Sheets
state v. ellis
Cite as 281 Neb. 571
579
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admissibility. 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), and the trial court’s decision will not be reversed absent an abuse of discretion. The
decision whether to grant a motion for mistrial is also within
the discretion of the trial court and will not be disturbed on
appeal in the absence of an abuse of discretion.
(iv) Analysis
Ellis argues that the district court’s rulings were erroneous.
The State continues to argue that the evidence was relevant to
prove Ellis’ identity and intent.
Rule 404(2) provides that evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in
order to show that he or she acted in conformity therewith.
Such evidence may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. We note
that rule 404 has been amended to permit the admission, in a
criminal case in which the defendant is accused of a sexual
assault, of evidence of another offense of sexual assault. Those
amendments were not in effect at the time of trial in this case
and do not affect our analysis in this appeal.
[4] Rule 404(2) prohibits the admissibility of relevant evidence for the purpose of proving the character of a person in
order to show that he or she acted in conformity therewith; or,
stated another way, the rule prohibits the admission of other
bad acts evidence for the purpose of demonstrating a person’s
propensity to act in a certain manner. The difficulty with the
State’s argument that Ellis’ assaults on his stepdaughters were
State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
Neb. Rev. Stat. §§ 27-403 and 27-404(2) (Reissue 2008).
State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
See Neb. Rev. Stat. §§ 27-404(4) and 27-414 (Cum. Supp. 2010).
See State v. Trotter, 262 Neb. 443, 632 N.W.2d 325 (2001).
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relevant to intent is that to the extent that the argument has
any logical basis, it is in the propensity-based reasoning that
rule 404(2) precludes. The district court concluded, and the
State also contends, that the factual similarities between the
prior assaults and Amber’s killing prove intent as well as identity. But, as explained below, we find those similarities to be
superficial and unpersuasive. And, to the extent that the prior
assaults do show intent, it is only because they support the
inference that Ellis is the type of person who assaults young
women. This is classic propensity reasoning that should be
excluded under rule 404(2).
The alleged similarities between the offenses are not compelling. We addressed a comparable situation in State v. Trotter, in
which prior acts of spousal abuse were offered as evidence that
the defendant had committed child abuse. But we explained
that we could not
say that the crimes charged and the evidence of [the
defendant’s] previous acts in this case are so similar,
unusual, and distinctive that the trial judge in this case
could reasonably find that they bear the same signature.
The evidence of the manner in which [the defendant] may
have abused his ex-spouses is similar to the extent it constituted abuse. While the acts of child abuse and spousal
abuse are concededly similar in nature in that they both
involve the abuse of a person, the facts described by the
district court and the State could be present in most any
situation where there is any type of abuse. The similarities the State points to in the case at bar are, in essence,
the similarities in the statutory definition of the crimes
themselves, not the manner in which [the defendant] may
have carried them out.
[5,6] The same is true here. Other acts evidence may have
probative value as to identity where there are overwhelming
similarities between the other crime and the charged offense
or offenses, such that the crimes are so similar, unusual, and
distinctive that the trial judge could reasonably find that they
See id.
Id. at 461, 632 N.W.2d at 340.
Nebraska Advance Sheets
state v. ellis
Cite as 281 Neb. 571
581
bear the same signature.10 In evaluating other acts evidence in
criminal prosecutions, the other act must be so related in time,
place, and circumstances to the offense or offenses charged so
as to have substantial probative value in determining the guilt
of the accused.11
But in this case, the prior acts were separated by more than
a decade from Amber’s disappearance. And the purported “signature” of the crime is that the victims were approximately
the same age, they were isolated and alone when they were
assaulted, one of Ellis’ stepdaughters was subjected to blows
to the head, and Ellis’ other stepdaughter was, on at least
one instance, assaulted while nude only from the waist down.
These facts are not so distinctive as to separate these prior acts
from nearly any other forcible sexual assault.
[7] Therefore, we conclude that the trial court abused its
discretion in admitting evidence, during the guilt phase of the
trial, of Ellis’ assaults on his stepdaughters. But the State also
argues that any error was harmless. Evidentiary error is harmless when improper admission of evidence did not materially
influence the jury to reach a verdict adverse to substantial
rights of the defendant.12 And here, given the strength of the
State’s other evidence, we conclude that the erroneously admitted evidence was harmless.
We recognize that the admission of other acts evidence, by
its nature, is usually prejudicial to the defendant. But this is the
rare instance in which it was not. For one thing, Shaffer testified, without objection, that Ellis admitted molesting young
girls and impregnating his stepdaughter. And more fundamentally, Ellis was inescapably tied to Amber’s killing through
DNA evidence that, as we will explain below, was admissible
and persuasive, and physical evidence that proved to be consistent with Ellis’ careless statements that had already been
reported to investigators. There was no innocent explanation
10
11
12
Trotter, supra note 7.
Id.
State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), abrogated in
part on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749
(2010).
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for how Ellis’ DNA came to be on Amber’s bloody clothing.
Nor is there any innocent explanation for how several witnesses came forward with information before Amber’s body or
Ellis’ DNA on her clothing had been discovered linking Ellis to
the killing—some of whom even accurately described Amber’s
cause of death and the possible location of her body. This evidence can only be explained by the conclusion that Ellis was
the killer.
Given Ellis’ statements, the physical evidence, and the other
circumstantial evidence, we have no doubt that any reasonable
trier of fact would have found Ellis guilty of the charge against
him. In particular, no reasonable trier of fact could overlook the
testimony of Dennis, Smith, and Shaffer, each of whom was
interviewed several weeks before Ellis’ DNA was identified on
Amber’s clothing and at least a month before Amber’s body
was found in Hummel Park. Each witness found Ellis’ interest in the case suspicious, and they all described details of the
case that they had no way of knowing unless they heard them
from the person who killed Amber. Therefore, although we find
merit to Ellis’ first assignment of error, we find that the error
was not prejudicial to Ellis.
[8,9] For similar reasons, we find no merit to Ellis’ second
assignment of error. Ellis argues that the district court should
have ordered a mistrial after the State made arguments during
opening and closing statements that referred to the other acts
evidence discussed above and, according to Ellis, referred to
his propensity to commit such acts. Because the evidence was
itself inadmissible, the court also erred in permitting argument
based upon it. But the decision to grant a motion for mistrial
is within the trial court’s discretion,13 and a defendant faces a
higher threshold than merely showing a possibility of prejudice
when attempting to prove error predicated on the failure to
grant a mistrial.14 Instead, the defendant must prove the alleged
error actually prejudiced him or her, rather than creating only
13
14
State v. Goynes, 278 Neb. 230, 768 N.W.2d 458 (2009).
See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
Nebraska Advance Sheets
state v. ellis
Cite as 281 Neb. 571
583
the possibility of prejudice.15 Because we have concluded that
the actual admission of the evidence was not prejudicial, we
similarly conclude that the State’s argument based upon that
evidence was not prejudicial, because of the strength of the
State’s remaining evidence.
(b) Jailhouse Informer Statute
(i) Background
Before trial, Ellis moved to exclude testimony from Martin
and Dennis, claiming the State had failed to make certain disclosures required by the statutes in effect at the time concerning
“jailhouse informers.”16 Specifically, Ellis argued, the State was
required to disclose the witnesses’ known criminal history, any
agreement made in exchange for the testimony, the statements
allegedly made by the defendant, any other cases in which the
witness had testified, and whether the witness had recanted at
any time.17 The State argued that the witnesses were not “jailhouse informers” because although they were in jail when they
initially spoke to the State, they were no longer in jail at the
time of trial. The district court agreed. And, the court noted,
the State had in any event provided Ellis with the witnesses’
criminal history records and informed Ellis that the witnesses
had been promised no benefit for their testimony. And Martin
and Dennis testified to that effect at trial.
(ii) Assignment of Error
Ellis assigns that the district court erred in denying his
motion to exclude testimony pursuant to § 29-1929 and that as
a result, his constitutional due process rights were violated.
(iii) Standard of Review
[10] Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion.18
15
16
17
18
Id.
See Neb. Rev. Stat. §§ 29-1928 and 29-1929 (Cum. Supp. 2006).
See id.
State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).
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(iv) Analysis
It should be noted that since Ellis’ trial, the statutes upon
which he relies have been repealed. However, the provisions
have been substantially reenacted as part of Neb. Rev. Stat.
§ 29-1912 (Cum. Supp. 2010), and now specifically define
“jailhouse witness” as a person who was in jail at the time the
statements to which the person will testify were first disclosed.
So, the question of statutory interpretation Ellis presents is a
case of last impression. And, on the record before us, it is not
a question we need to answer.
We explained in State v. Gutierrez19 that the jailhouse
informer statutes were discovery provisions, intended to ensure
that criminal defendants have the opportunity to meaningfully
confront the testimony of a jailhouse informer at trial. And the
district court found that, even if Martin and Dennis were considered to be jailhouse informers, the State had complied with
the statutory requirements. Nor is it apparent how Ellis was
prejudiced by any deficiency in the State’s disclosure.
The only point Ellis makes on appeal that appears to relate
to prejudice is that after his testimony at trial, Dennis entered
into a plea agreement for some charges that had been pending
against him. But there is no evidence that the plea agreement
had been reached, or contemplated, at the time Dennis testified. In other words, nothing in the record is contrary to the
district court’s express finding, in ruling on Ellis’ motion to
exclude testimony, that the relevant statutes were substantially
complied with. The court did not abuse its discretion in rejecting Ellis’ motion, and we find no merit to Ellis’ assignment
of error.
(c) DNA Evidence
(i) Background
As noted above, the State presented DNA evidence relating
to a sample found on Amber’s jeans that tended to implicate
Ellis in the killing. Before trial, Ellis moved to exclude the
19
Gutierrez, supra note 12.
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DNA evidence, but his motion was overruled, as was his foundational objection at trial.
The State’s witness, Dr. James Wisecarver, explained generally that the testing process used in this case involved looking
at 16 different genetic markers scattered throughout the genome
at different loci. One of those is a sex marker that identifies the
gender of the contributor; the other 15 are used to compare to
known reference samples (in this case, for Amber and Ellis) to
see if they are the same or different.
The DNA found on Amber’s jeans was a mixture of DNA
from at least two people, one of whom was male. Wisecarver
explained that it was not possible to separate the mixture into
a major and minor contributor at each locus. Instead, he said,
the presence of the mixture was taken into account when calculating the likelihood that any other person would have any
combination of the genetic markers that had been identified.
Wisecarver explained that the purpose of the statistical calculations was to determine the likelihood that “we’re going to find
somebody, anybody, that could have any of these markers in
any combination.” In other words, Wisecarver said, when testing a mixture, “[w]e make no inferences as to who matches up
with whom in there. We just want to say in all the populations
how many people would we have to screen in order to find
somebody, anybody, that would fit in here in any combination
of those.”
Given that Amber’s genetic profile was known, Wisecarver
testified that only 1 in 2.3 billion people would be expected to
“plug in” as the other contributor to the mixture. And despite
those odds, Ellis could not be excluded as a contributor to
the mixture.
On cross-examination, Wisecarver was asked about what
happened when two samples had common alleles—in other
words, when the two possible contributors to the mixture were
genetically identical at a tested locus. Wisecarver conceded
that when such a common genetic marker was found at a
locus, in this case, it was not possible to tell who had contributed the allele. But, Wisecarver said, it was still scientifically
appropriate to consider such a locus when making statistical
c
alculations.
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(ii) Assignment of Error
Ellis assigns that the district court erred in denying his
motion in limine regarding the State’s use of DNA evidence.
(iii) Standard of Review
[11] The standard for reviewing the admissibility of expert
testimony is abuse of discretion.20
(iv) Analysis
[12] Ellis does not contend that the State’s witnesses were
not qualified to testify, or that their basic reasoning and methodology was not reliable. Rather, Ellis contends that under
our Daubert/Schafersman framework,21 that methodology was
not properly applied in this case. We have said that under that
framework, once the reasoning or methodology of expert opinion testimony has been found to be reliable, the court must
determine whether the methodology was properly applied to
the facts in issue.22
Ellis’ appellate argument is focused on the use of common
alleles in the State’s statistical analysis. Ellis contends that
the “overriding issue” with that method is that “where there is
uncertainty as to the contributor, as long as the suspect is ‘fully
represented’ . . . then that location counts against the suspect
in calculating the possibility of exclusion.”23 This, according to
Ellis, “is fundamentally unduly prejudicial and should not have
been allowed.”24
[13,14] Ellis cites no authority that is specifically relevant
to the issue he raises, nor is it clear that he raised that issue
in the trial court. It was not addressed in his pretrial motion,
which was addressed generally at the theory of PCR-STR
20
Casillas, supra note 2; Daly, supra note 14.
See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001).
22
See State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009).
23
Brief for appellant at 55.
24
Id. at 56.
21
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DNA testing that was applied in this case.25 Nor did he raise
it at trial beyond a general foundational objection, which is
insufficient to preserve a Daubert/Schafersman issue.26 We
have explained that to sufficiently call specialized knowledge
into question under Daubert/Schafersman is to object with
enough specificity so that the court understands what is being
challenged and can accordingly determine the necessity and
extent of any pretrial proceeding.27 To meet this burden, Ellis’
pretrial motion should have identified what is believed to be
lacking with respect to the validity and reliability of the evidence and any challenge to the relevance of the evidence to the
issues of the case.28 But the issue now raised by Ellis was not
identified then.
Furthermore, Ellis’ argument rests upon a misunderstanding of the way in which the DNA statistics were calculated.
As Wisecarver explained, the purpose of examining each locus
is to determine two things: (1) whether the contributor of the
reference sample can be excluded as a contributor and (2) how
commonly one might expect the profile that is generated to
occur randomly in the population.29 In other words, the initial question was not whether the alleles that were found at
each locus identified Ellis as the contributor; instead, it was
whether the testing excluded Ellis as a possible contributor.
And obviously, an allele that could be found in both Ellis’
and Amber’s genetic profile would not exclude Ellis as a possible contributor.
On the second step, the fact that the DNA sample was a mixture clearly affected the calculation of how many people might
be expected to have genetic profiles consistent with the sample,
which is presumably why the probabilities found in this case
are relatively modest compared to others. While 1 in 2.3 billion
25
See, generally, State v. Fernando-Granados, 268 Neb. 290, 682 N.W.2d
266 (2004).
26
See State v. King, 269 Neb. 326, 693 N.W.2d 250 (2005).
27
Casillas, supra note 2.
28
See id.
29
See, generally, Fernando-Granados, supra note 25.
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people might seem like a daunting figure, other cases involving
single-contributor or major-contributor samples have produced
probabilities of 1 in several quintillion.30 But that goes to the
weight of the evidence, not its admissibility—in fact, Ellis
explored that issue on cross-examination of one of the State’s
experts. The district court did not abuse its discretion in concluding that the DNA evidence was admissible, and we find no
merit to Ellis’ assignment of error.
2. Capital Sentencing Issues
(a) Repeal of Electrocution
as Method of Execution
(i) Background
As noted above, Amber disappeared on November 29, 2005,
and was presumably killed shortly thereafter. Ellis was charged
with first degree murder on February 6, 2007. At the time,
the Nebraska death penalty statutes provided that the mode of
inflicting the punishment of death was electrocution.31 But on
February 8, 2008, this court decided State v. Mata,32 in which
we held that death by electrocution violated the cruel and
unusual punishment provision of the Nebraska Constitution.33
Ellis was sentenced to death on February 9, 2009. On May
28, the Governor approved 2009 Neb. Laws, L.B. 36, which
amended the death penalty statutes to provide that a sentence
of death shall be enforced by intravenous injection of a lethal
substance.34 The Legislature adjourned sine die on May 29, and
L.B. 36 took effect 3 months later.35
30
Compare, e.g., Edwards, supra note 22; State v. Archie, 273 Neb. 612,
733 N.W.2d 513 (2007); State v. Tolliver, 268 Neb. 920, 689 N.W.2d 567
(2004); Fernando-Granados, supra note 25.
31
See Neb. Rev. Stat. § 29-2532 (Reissue 2008).
32
State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
33
See, id.; Neb. Const. art. I, § 9.
34
See § 29-2532 (Cum. Supp. 2010).
35
See, L.B. 36; Neb. Const. art. III, § 27.
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(ii) Assignment of Error
Ellis contends that the repeal of electrocution as the method
of carrying out a sentence of death by L.B. 36 requires a sentence of life in prison.
(iii) Standard of Review
[15] 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.36
(iv) Analysis
Ellis argues that he is not subject to the death penalty
because at the time of the offense, electrocution was the sole
method of carrying out a death sentence. Ellis concludes that
he must be sentenced to life imprisonment because at the time
of his sentencing, there was no valid method of punishment.
Ellis’ argument is without merit for two reasons. First, in
L.B. 36, the Legislature expressly stated that “[n]o death sentence shall be voided or reduced as a result of a determination
that a method of execution was declared unconstitutional under
the Constitution of Nebraska or the Constitution of the United
States.”37 Instead, “[i]n any case in which an execution method
is declared unconstitutional, the death sentence shall remain in
force until the sentence can be lawfully executed by any valid
method of execution.”38 Thus, to the extent that Ellis’ argument
relies on the purported effect of L.B. 36, it is evident that the
Legislature did not intend L.B. 36 to affect any sentence of
death that had already been imposed.
[16] But Ellis’ argument does not hinge upon L.B. 36; rather,
it hinges upon our decision in Mata. Ellis’ argument is really
that because we struck down electrocution in Mata, he could
not have been sentenced to death until another means of enforcing a death sentence was enacted. Ellis’ argument, however, is
inconsistent with Mata, in which we affirmed the defendant’s
36
Sellers, supra note 5.
Neb. Rev. Stat. § 83-968 (Cum. Supp. 2010).
38
See id.
37
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death sentence despite striking down the only method available
under state law to enforce that sentence.39 We explained:
Having concluded that electrocution is cruel and
unusual punishment, we face the question of how to
dispose of this appeal. The fact remains that although
the Nebraska statutes currently provide no constitutionally acceptable means of executing [the defendant], he
was properly convicted of first degree murder and sentenced to death in accord with Nebraska law. We have
already affirmed his conviction. His sentence of death,
although it cannot be implemented under current law,
also remains valid.
Under Nebraska law, the sentencing panel can fix
the sentence either at death or at life imprisonment.
Because a panel’s sentencing authority does not extend
beyond that, the method of imposing a death sentence
is not an essential part of the sentence. And Nebraska’s
statutes specifying electrocution as the mode of inflicting the death penalty are separate, and severable, from
the procedures by which the trial court sentences the
defendant. In short, 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.”’” Because we find no error
in imposing a sentence of death, we affirm the district
court’s judgment.40
Although Ellis was sentenced after Mata was decided, his
situation is not meaningfully distinguishable. The sentence was
lawfully imposed, and although the sentence could not have
been executed at that very time, the sentence itself remains
39
See Mata, supra note 32. See, also, State v. Sandoval, 280 Neb. 309,
788 N.W.2d 172 (2010), cert. denied, Nos. 10-9897, 10A819, 2011 WL
1325226 (U.S. Neb. May 23, 2011); State v. Vela, 279 Neb. 94, 777
N.W.2d 266 (2010), cert. denied ___ U.S. ___, 130 S. Ct. 3364, 176 L.
Ed. 2d 1256; State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009), cert.
denied ___ U.S. ___, 130 S. Ct. 1887, 176 L. Ed. 2d 372 (2010).
40
Mata, supra note 32, 275 Neb. at 67-68, 745 N.W.2d at 278-79 (emphasis
supplied). See, also, Galindo, supra note 39.
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valid. The sentencing panel did not err in imposing a sentence
of death because of Mata.
(b) Constitutionality of Death Penalty Statutes
[17] Ellis raises a number of arguments that challenge the
constitutionality of various aspects of Nebraska’s death penalty
statutes.41 The district court found no merit to any of Ellis’
claims. Whether a statute is constitutional is a question of law;
accordingly, on each of these arguments, we are obligated to
reach a conclusion independent of the decision reached by the
court below.42
(i) Separation of Powers
Ellis argues that the statutes establishing the procedure for
enforcing a sentence of death, Neb. Rev. Stat. § 83-964 et seq.
(Cum. Supp. 2010), delegate a legislative function to the executive branch in violation of the Nebraska Constitution. Ellis
asserts, therefore, that his death sentence should be voided and
that he should be sentenced to life imprisonment.
As noted above, Nebraska law now provides that “[a] sentence of death shall be enforced by the intravenous injection
of a substance or substances in a quantity sufficient to cause
death. The lethal substance or substances shall be administered in compliance with an execution protocol created and
maintained by the Department of Correctional Services.”43 The
Director of Correctional Services
shall create, modify, and maintain a written execution protocol describing the process and procedures by which an
execution will be carried out consistent with this section.
The director shall (a) select the substance or substances
to be employed in an execution by lethal injection, (b)
create a documented process for obtaining the necessary
substances, (c) designate an execution team composed of
one or more executioners and any other personnel deemed
41
42
43
See Neb. Rev. Stat. § 29-2519 et seq. (Reissue 2008 & Cum. Supp.
2010).
Yant v. City of Grand Island, 279 Neb. 935, 784 N.W.2d 101 (2010).
§ 83-964.
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necessary to effectively and securely conduct an execution, (d) describe the respective responsibilities of each
member of the execution team, (e) describe the training
required of each member of the execution team, and (f)
perform or authorize any other details deemed necessary
and appropriate by the director.44
The only substantive direction provided by the Legislature
regarding the execution protocol is that the protocol “shall
require that the first or only substance injected be capable of
rendering the convicted person unconscious and that a determination sufficient to reasonably verify that the convicted person
is unconscious be made before the administration of any additional substances, if any.”45
[18-20] Ellis argues that the Legislature has unconstitutionally delegated its legislative responsibility to establish an execution protocol, in violation of the Nebraska Constitution.46 But
a grant of administrative authority is not necessarily an unconstitutional delegation of legislative power.47 The Legislature
may enact statutes to set forth the law, and it may authorize an
administrative or executive department to make rules and regulations to carry out an expressed legislative purpose.48 Although
the limitations of the power granted and the standards by which
the granted powers are to be administered must be clearly and
definitely stated in the authorizing act, where the Legislature
has provided reasonable limitations and standards for carrying
out the delegated duties, there is no unconstitutional delegation
of legislative authority.49
[21] We have said that delegation of legislative power is
most commonly indicated where the relations to be regulated
are highly technical or where regulation requires a course of
44
§ 83-965(2).
§ 83-965(3).
46
See Neb. Const. art. II, § 1.
47
Yant, supra note 42.
48
See Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263,
786 N.W.2d 655 (2010).
49
See, id.; Yant, supra note 42.
45
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continuous decision.50 The subject at issue here clearly fits
that description, which is why similar arguments based on
comparable statutes have been uniformly rejected in other
jurisdictions.51 Those courts have reasoned that by specifying
the purpose of the statute, the punishment to be imposed, and
generally identifying the means, a legislature has declared a
policy and fixed a primary standard, permitting delegation of
details that the legislature cannot practically or efficiently perform itself.52
We agree, and likewise conclude that Nebraska’s Legislature
has provided reasonable limitations and standards for carrying
out the duties of establishing a protocol for lethal injection.
The tasks assigned to the director are highly technical and
require a course of continuous decision, making it appropriate to delegate them. We also note, as an aside, that even if
Ellis’ separation of powers argument had merit, his sentence
would not be void. Rather, as explained above, our holding in
Mata dictates that his sentence would remain valid, even if
the State lacked a constitutional means of enforcing it.53 But
we resolve Ellis’ argument here on a more fundamental basis:
Ellis is incorrect when he asserts that Neb. Const. art. II, § 1,
has been violated. So, we find no merit to his assignment
of error.
(ii) Constitutionality of Aggravating Circumstances
Generally, Ellis argues that the Nebraska death penalty statutes are unconstitutional on their face. Specifically, he contends
that the third part of § 29-2523(1)(a) and the first and second
parts of § 29-2523(1)(d) are unconstitutional on their face and
as interpreted by the courts of the State of Nebraska and as
applied in this case. But we have previously rejected each of
Ellis’ arguments.
50
51
52
53
Yant, supra note 42.
See, Sims v. State, 754 So. 2d 657 (Fla. 2000); State v. Osborn, 102 Idaho
405, 631 P.2d 187 (1981); Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim.
App. 1978).
See, e.g., Sims, supra note 51; Ex parte Granviel, supra note 51.
See Mata, supra note 32.
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a. § 29-2523(1)(a)
[22,23] To begin with, Ellis contends that § 29-2523(1)(a),
which provides as an aggravating circumstance that the defend
ant “has a substantial prior history of serious assaultive or
terrorizing criminal activity,” is unconstitutional because it
fails to define those terms clearly. But we have concluded
otherwise on a number of occasions.54 In death penalty cases,
an eligibility or selection factor is not unconstitutional if it has
some commonsense core of meaning that a juror can understand.55 Because the proper degree of definition of eligibility and selection factors in death penalty cases often is not
susceptible of mathematical precision, a vagueness review is
quite deferential.56
We have explained that “serious,” “assaultive,” and “terrorizing” are words in common usage with meanings well fixed
and generally clearly understood and that the term “substantial history” is likewise reasonably clear.57 “History” refers
to the individual’s past acts preceding the incident for which
he is on trial, and “substantial” refers to an actual, material,
and important history of acts of terror of a criminal nature.
And we have concluded that our interpretation and application
of § 29-2523(1)(a) are neither unconstitutionally vague nor
o
verbroad.58
Ellis acknowledges this authority, but contends that we should
reconsider it in light of the fact that juries, and not judges, are
now responsible for factfinding with respect to aggravating
54
See, State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007); State v.
Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on other
grounds, Mata, supra note 32; State v. Ryan, 233 Neb. 74, 444 N.W.2d
610 (1989); State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977), disapproved on other grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706
(1986); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).
55
Mata, supra note 32.
56
Id.
57
See Holtan, supra note 54. Accord Bjorklund, supra note 54.
58
See, Hessler, supra note 54; Bjorklund, supra note 54; Ryan, supra note
54.
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circumstances.59 Ellis cites no authority for the proposition that
these constitutional determinations are predicated on the identity of the fact finder. Instead, the relevant question is whether
or not the instructions given to the jury, based upon appellate
courts’ narrowing constructions, are unconstitutionally vague.60
And Ellis does not contend that the instructions given in this
case were inconsistent with the narrowing constructions that
we have given this aggravating circumstance.61 In short, Ellis
has not offered any compelling reason to overrule our authority
holding that § 29-2523(1)(a) is constitutionally sufficient. We
decline to do so.
b. § 29-2523(1)(d)
Similarly, Ellis takes issue with § 29-2523(1)(d), which provides as an aggravating circumstance that “[t]he murder was
especially heinous, atrocious, cruel, or manifested exceptional
depravity by ordinary standards of morality and intelligence.”
This aggravating circumstance contains two separate disjunctive components which may operate together or independently
of one another.62 Few provisions of Nebraska law have been
more challenged, and as they are currently construed, they are
constitutional.63 Ellis again acknowledges this, and again contends that we should reevaluate those holdings in light of jury
factfinding. We again decline to do so.
[24] Ellis specifically takes issue with the use of the term
“helpless” in our construction of (and the jury instruction for)
the “exceptional depravity” prong of § 29-2523(1)(d). We have
59
See, generally, Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.
2d 556 (2002); State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
60
See, State v. Cromwell, 211 Ariz. 181, 119 P.3d 448 (2005); State v.
Anderson, 210 Ariz. 327, 111 P.3d 369 (2005) (en banc).
61
Compare Sandoval, supra note 39.
62
State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996), disapproved on
other grounds, State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
63
See, Mata, supra note 32; Hessler, supra note 54; State v. Gales, 269 Neb.
443, 694 N.W.2d 124 (2005); Bjorklund, supra note 54; State v. Palmer,
257 Neb. 702, 600 N.W.2d 756 (1999); Ryan, supra note 54. See, also,
Joubert v. Hopkins, 75 F.3d 1232 (8th Cir. 1996); Williams v. Clarke, 40
F.3d 1529 (8th Cir. 1994).
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held that “exceptional 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.64 Ellis argues
that the district court erred in including “helpless” in the jury
instruction because it does not have a constitutionally acceptable definition.
Ellis points out that our construction of the “exceptional
depravity” prong is broader than that of the Arizona law upon
which it was based, because in Arizona, unlike Nebraska, a
mere finding that the victim was helpless would not be sufficient to establish the aggravator.65 But the fact that our
construction may be broader than Arizona’s does not make it
unconstitutional. Our definition of “exceptional depravity” has
been repeatedly upheld.66 We note, in particular, that the same
argument Ellis makes was squarely presented to the Eighth
Circuit in Palmer v. Clarke,67 which reversed the district court’s
conclusion that helplessness, standing alone, would not compel
a finding of heinousness or depravity68; instead, the Eighth
Circuit held that our construction of the exceptional depravity
aggravator was “‘clearly constitutional.’”69
And the basic question is whether the aggravating circumstance has been construed to permit a principled distinction between those who deserve the death penalty and those
who do not.70 The helplessness of the victim makes such a
64
Moore, supra note 62; Palmer, supra note 54.
See State v. Hampton, 213 Ariz. 167, 140 P.3d 950 (2006).
66
See, Joubert, supra note 63; Mata, supra note 32; Hessler, supra note 54;
Palmer, supra note 63.
67
See Palmer v. Clarke, 408 F.3d 423 (8th Cir. 2005).
68
See Palmer v. Clarke, 293 F. Supp. 2d 1011 (D. Neb. 2003), affirmed in
part and reversed in part, Palmer, supra note 67.
69
Palmer, supra note 67, 408 F.3d at 439, quoting Joubert, supra note 63.
70
Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990).
See, also, Sandoval, supra note 39.
65
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d
istinction. We reject Ellis’ argument that “[a]ny victim of a
homicide could be said to be ‘helpless.’”71 Many courts have
found the helplessness of a victim to be a determinative factor
in evaluating the depravity of a defendant’s conduct.72 A “helpless” victim is readily understood to be one who is unable to
defend oneself, or to act without help.73 It is not difficult, for
instance, to see the difference between a shooting that occurs
in the context of a fight between two adult men74 and the killing of an abducted 12-year-old girl. One circumstance clearly
merits the death penalty more than the other, which is the
distinction that the Constitution requires.75 The killing of a
victim who has already been rendered helpless exhibits a callous disregard for the sanctity of human life that sufficiently
distinguishes cases in which consideration of the death penalty
is warranted.76
As an aside, we note that the jury was instructed, with
respect to the first prong of § 29-2523(1)(d), that it should find
that the murder was especially heinous, atrocious, or cruel if
Ellis inflicted serious mental anguish or serious physical abuse
and that mental anguish “includes a victim’s uncertainty as
to his or her ultimate fate.” We have since disapproved this
instruction in State v. Sandoval.77 But in this appeal, Ellis has
not taken issue with the inclusion of mental anguish. So, we
need not consider the effect of the “mental anguish” instruction
71
Brief for appellant at 76.
See, Fetterly v. Paskett, 747 F. Supp. 594 (D. Idaho 1990); Strouth v.
State, 999 S.W.2d 759 (Tenn. 1999); State v. Chaney, 967 S.W.2d 47 (Mo.
1998) (en banc); Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d
643 (1982). Cf. Hargrave v. Wainwright, 804 F.2d 1182 (11th Cir. 1986),
vacated on other grounds on rehearing en banc 832 F.2d 1528 (1987).
73
Concise Oxford American Dictionary 417 (2006).
74
See, e.g., State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on other grounds, Thorpe, supra note 12.
75
See Lewis, supra note 70.
76
See, Tokar v. Bowersox, 198 F.3d 1039 (8th Cir. 1999); Hargrave, supra
note 72; Strouth, supra note 72; Chaney, supra note 72; Quintana, supra
note 72.
77
Sandoval, supra note 39.
72
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here. We note, however, that in this case, unlike Sandoval,
there is considerable evidence that sexual abuse was inflicted
on Amber before her death, and we have consistently held that
murders involving torture, sadism, sexual abuse, or the imposition of extreme suffering are “especially heinous, atrocious,
[or] cruel.”78
In sum, we find no merit to Ellis’ argument that either
§ 29-2523(1)(a) or § 29-2523(1)(d) is unconstitutional, on its
face or as applied in this case. We note that Ellis’ brief also
asserts a number of other facial challenges to the Nebraska
death penalty statutes: for instance, he asserts due process,
equal protection, uniformity, and cruel and unusual punishment claims under the state and federal Constitutions. But his
“laundry list” of constitutional claims contains no argument
other than his assertions that these provisions were violated;
he neither assigned them specifically as error nor argued them
sufficiently to preserve them for appellate review.79
(iii) Jury Consideration of
Mitigating Evidence
Ellis contends that the Nebraska death penalty statutes’ prohibition on presenting mitigating evidence to a jury violates
the 6th, 8th, and 14th Amendments to the U.S. Constitution.
In a related argument, Ellis contends that the Nebraska death
penalty statutes’ prohibition against the jury’s assigning any
relative “weight” to an aggravating circumstance in comparison
to any mitigating circumstance violates the 6th, 8th, and 14th
Amendments to the U.S. Constitution.
We have previously rejected both of these arguments.80
We have explained that the U.S. Supreme Court’s holding in
Ring v. Arizona81 does not require that a jury make findings
78
See, id.; Gales, supra note 63. See, also, Hedgpeth v. Pulido, 555 U.S. 57,
129 S. Ct. 530, 172 L. Ed. 2d 388 (2008).
79
See, Mata, supra note 32; State v. Rodriguez, 272 Neb. 930, 726 N.W.2d
157 (2007).
80
See, Sandoval, supra note 39; Mata, supra note 32; Hessler, supra note 54;
Gales, supra note 63; Gales, supra note 59.
81
Ring, supra note 59.
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other than the existence of the aggravating circumstances upon
which a capital sentence is based and that neither Ring nor any
other authority “‘require[s] that the determination of mitigating circumstances, the balancing function, or proportionality
review be undertaken by a jury.’”82
It is the finding of an aggravating circumstance increasing the defendant’s authorized punishment which implicates
the right to trial by jury, so “when a trial judge exercises his
discretion to select a specific sentence within a defined range,
the defendant has no right to a jury determination of the facts
that the judge deems relevant.”83 As the Court explained in
Apprendi v. New Jersey,84 facts in aggravation of punishment
and facts in mitigation are fundamentally distinct.
If facts found by a jury support a guilty verdict of murder, the judge is authorized by that jury verdict to sentence the defendant to the maximum sentence provided
by the murder statute. If the defendant can escape the
statutory maximum by showing, for example, that he is
a war veteran, then a judge that finds the fact of veteran
status is neither exposing the defendant to a deprivation of liberty greater than that authorized by the verdict
according to statute, nor is the judge imposing upon the
defendant a greater stigma than that accompanying the
jury verdict alone.85
[25] In other words, mitigating circumstances, and the
“weight” to be assigned to the aggravating and mitigating circumstances, are relevant only to the sentencing panel’s exercise
of its discretion to decide which statutorily authorized sentence
to impose and do not require determination by a jury. We find
no merit to Ellis’ assignments of error.
82
Hessler, supra note 54, 274 Neb. at 501, 741 N.W.2d at 424, quoting
Gales, supra note 59. See, also, Sandoval, supra note 39; Mata, supra
note 32.
83
United States v. Booker, 543 U.S. 220, 233, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005).
84
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).
85
Id., 530 U.S. at 491 n.16.
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(iv) Bifurcation of Factfinding
and Sentencing
Ellis contends that the Nebraska death penalty statutes’ separation of an aggravating circumstance fact finder (jury) and a
mitigating circumstance fact finder (three-judge panel) where
the sentence is ultimately to be determined by “weighing”
the various factors is irrational, incoherent, and incapable of
reasoned application, resulting in the sentencing panel’s making specific factual findings in violation of Ring86 and the 5th,
6th, 8th, and 14th Amendments to the U.S. Constitution. As
we understand Ellis’ argument, it is that the sentencing panel’s
imposition of sentence is unconstitutional because the sentencing panel cannot know, with certainty, the grounds upon which
the jury based its findings of aggravating circumstances.
But we effectively rejected that argument in State v. Hessler.87
In that case, the defendant had argued that the capital sentencing statutes are
“irrational, unworkable, incoherent, and incapable of rendering a fair and just determination of life and death”
. . . because the sentencing panel, which was not the fact
finder during the aggravation phase, is not in as good a
position as the jury to assign a weight to the aggravating circumstances, to weigh aggravating circumstances
against mitigating circumstances, and to determine the
sentence.88
We found no merit to that argument because, as explained
above, there is no constitutional support for the contention that
the jury’s constitutional role extends beyond finding the facts
that are necessary to condition an increase in the defendant’s
maximum punishment.89
The sentencing panel is statutorily limited to weighing the
aggravating circumstances found by the jury, but there is no
constitutional basis to argue that the sentencing panel is limited
86
Ring, supra note 59.
Hessler, supra note 54.
88
Id. at 501, 741 N.W.2d at 424.
89
See Ring, supra note 59.
87
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in the evidence it may consider, or the view of the evidence it
may take, in exercising its sentencing discretion. The facts setting the outer limits of a sentence, and of the judicial power to
impose it, are the elements of the crime for purposes of constitutional analysis.90 Once the jury has found the facts necessary
to authorize the maximum penalty for an offense, “‘it may
be left to the judge to decide whether that maximum penalty,
rather than a lesser one, ought to be imposed.’”91 We find no
merit to Ellis’ argument that the Constitution does not permit
the sentencing panel to weigh the aggravating circumstances
and the evidence.
(v) Jury Sentencing
Ellis argues that the Nebraska death penalty statutes do
not allow the jury to make the determination of life or death
in violation of the 6th, 8th, and 14th Amendments to the
U.S. Constitution. But we previously rejected this argument
in Hessler.92 Ring stands for the proposition that the jury must
find the existence of the fact that an aggravating circumstance
existed, but states may leave the ultimate life-or-death decision
to the judge if they require a prior jury finding of aggravating
circumstances in the sentencing phase.93 We find no merit to
Ellis’ assignment of error.
(vi) Unanimous Findings of
Fact by Jury
Ellis argues that the Nebraska death penalty statutes prejudice the defendant’s right to a jury trial because no unanimous findings of specific facts are required before the jury
may find an aggravating circumstance. But, if the defendant
waives a jury, then the three-judge panel is required to make
a unanimous finding of any fact in support of an aggravating
90
Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524
(2002).
91
Apprendi, supra note 84, 530 U.S. at 497. Accord Ring, supra note 59.
92
See Hessler, supra note 54.
93
Ring, supra note 59 (Scalia, J., concurring).
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circumstance. According to Ellis, this “unequal treatment,”94
based on the assertion of a right to a jury trial, is in violation
of the 6th, 8th, and 14th Amendments to the U.S. Constitution
and the U.S. Supreme Court’s decision in United States
v. Jackson.95
But we rejected an identical argument in Hessler.96 In
Jackson, the Court had struck down a statute that authorized
imposing a death sentence only if a jury recommended the
death sentence, so, if the defendant waived his right to a jury
trial, or pled guilty, the sentencing court could only impose
a life sentence. The Court struck down the statute because
it improperly coerced or encouraged the defendant to waive
his or her Sixth Amendment right to a jury or his or her Fifth
Amendment right to plead not guilty, thereby penalizing a
defendant who asserted those rights.97
In Hessler, the defendant argued that Nebraska’s statutory
scheme violates Jackson because a defendant who prefers to
have the same fact finder determine both the aggravating circumstances and the sentence must waive the right to have a
jury find the aggravating circumstances. The defendant complained that “[i]n order for [him] to receive the additional bene
fit of unanimous findings of fact—in writing—supporting the
aggravating circumstances,”98 he was required to waive a jury
determination, and according to the defendant, that violated
Jackson. But we found that argument unpersuasive, explaining that
[u]nlike Jackson, under the Nebraska death penalty statutes, a defendant cannot avoid the risk of a death penalty
by waiving the right to a jury determination of aggravating circumstances; even if the defendant waived such
right, the sentencing panel could still impose a death
94
Brief for appellant at 86.
United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138
(1968).
96
Hessler, supra note 54. See, also, Sandoval, supra note 39; Galindo, supra
note 39; Mata, supra note 32.
97
See Jackson, supra note 95.
98
Brief for appellant at 71, Hessler, supra note 54 (No. S-05-629).
95
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penalty. . . . Unlike Jackson, in which the benefit to waiving the right to a jury was the elimination of exposure
to the death penalty, the Nebraska statutory scheme does
not provide a clear advantage to a defendant who waives
his or her right to have a jury determine aggravating
circumstances. The Nebraska statutory scheme does not
improperly coerce or encourage a defendant to waive his
or her right to a jury and does not penalize a defendant
who asserts such right.99
Simply put, “[r]equiring three judges to unanimously agree
on any fact supporting an aggravating circumstance does not
necessarily make a favorable sentence more likely than requiring 12 jurors to unanimously agree under alternative theories.”100 Jackson did not hold that the Constitution forbids
every government-imposed choice in the criminal process
that has the effect of discouraging the exercise of constitutional rights.101 A defendant’s decision to waive a jury finding of aggravating circumstances would obviously implicate
procedural differences, the advantages and disadvantages of
which can be weighed by the defendant—but insisting on the
jury finding does not penalize the defendant for that choice
within the meaning of Jackson. We find no merit to Ellis’
assignment of error.
(vii) Federal Preemption
Ellis argues that § 83-964 et seq. are in violation of the federal Controlled Substances Act (CSA)102 and the Federal Food,
Drug, and Cosmetic Act (FDCA)103 and therefore are preempted under the Supremacy Clause of the U.S. Constitution.
Specifically, he asserts that Nebraska’s lethal injection statutes
violate the CSA by permitting a controlled substance to be
used without a prescription for a legitimate medical purpose
99
Hessler, supra note 54, 274 Neb. at 502-03, 741 N.W.2d at 425.
Mata, supra note 32, 275 Neb. at 21, 745 N.W.2d at 249.
101
Mata, supra note 32, citing Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct.
1977, 36 L. Ed. 2d 714 (1973).
102
21 U.S.C. § 801 et seq. (2006 & Supp. III 2009).
103
21 U.S.C. § 301 et seq. (2006 & Supp. III 2009).
100
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and violate the FDCA because the Director of Correctional
Services is not required to obtain FDA approval of the drug
or drugs used in the lethal injection protocol. And Ellis argues
that the federal statutes preempt any Nebraska laws with which
they conflict.104
[26,27] But the initial question posed by Ellis’ argument is
one of standing: whether either of the federal statutes relied
upon by Ellis gives rise to a private right of action to enforce
it. Like substantive federal law itself, private rights of action
to enforce federal law must be created by Congress.105 The
judicial task is to interpret the statute Congress has passed
to determine whether it displays an intent to create not just a
private right but also a private remedy.106 Without it, a cause of
action does not exist and courts may not create one, no matter
how desirable that might be as a policy matter or how compatible with the statute.107
And courts have consistently held that neither the FDCA
nor the CSA creates a private remedy.108 The U.S. Supreme
Court has expressly held that “[t]he FDCA leaves no doubt
that it is the Federal Government rather than private litigants
who are authorized to file suit for noncompliance . . . .”109 As
a result, the Fifth Circuit has rejected an argument similar to
Ellis’ under the FDCA, denying a stay of execution on the
basis that the defendant had not made a showing of likelihood
104
See, generally, Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788
N.W.2d 538 (2010).
105
Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517
(2001).
106
Id.
107
Id.
108
See, Durr v. Strickland, 602 F.3d 788 (6th Cir. 2010), cert. denied ___
U.S. ___, 130 S. Ct. 2147, 176 L. Ed. 2d 757; O’Bryan v. McKaskle, 729
F.2d 991 (5th Cir. 1984). See, also, West v. Ray, No. 3:10-0778, 2010
WL 3825672 (M.D. Tenn. Sept. 24, 2010); Ringo v. Lombardi, No.
09-4095-CV-C-NKL, 2010 WL 3310240 (W.D. Mo. Aug. 19, 2010); Jones
v. Hobbs, 745 F. Supp. 2d 886 (E.D. Ark. 2010).
109
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 349 n.4, 121 S. Ct.
1012, 148 L. Ed. 2d 854 (2001). See, also, Fiedler v. Clark, 714 F.2d 77
(9th Cir. 1983).
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of success on the merits.110 The court noted that it was “unable
to identify the legal footing for [the defendant’s] present effort
to enforce this detailed federal administrative scheme,” given
that the FDCA provides that all proceedings to enforce it shall
be by and in the name of the United States or, under limited
circumstances, by a State government.111 The FDCA provides
Ellis with no privately enforceable right of action.
Similarly, the Sixth Circuit recently held in Durr v.
Strickland112 that declaratory relief was unavailable to a defend
ant making arguments effectively identical to Ellis’. In Durr,
the defendant argued that using lethal injection drugs without
a prescription from a licensed medical practitioner and distributed without proper authorization violated the CSA and
FDCA. But the Sixth Circuit affirmed the federal district
court’s conclusion that “no private right of action exists under
either act.”113
The CSA expressly gives the Attorney General the power to
enforce its provisions,114 and where a statute expressly provides
a remedy, courts must be especially reluctant to provide additional remedies.115 Statutes that focus on the person regulated
rather than the individuals protected create no implication of
an intent to confer rights on a particular class of persons, and
a statute that focuses on the agency that will do the regulating
is yet another step further removed.116 The CSA’s focus is on
those who handle controlled substances, and on the authority of
the Attorney General to enforce the act—it does not focus on
the individuals protected by it, and evinces no intent to create
a private remedy.117
110
See O’Bryan, supra note 108.
See, id. at 993 n.2; 21 U.S.C. § 337.
112
See Durr, supra note 108.
113
Id. at 789. See, also, West, supra note 108; Jones, supra note 108.
114
See, e.g., 21 U.S.C. §§ 821, 824, and 877.
115
Karahalios v. Federal Employees, 489 U.S. 527, 109 S. Ct. 1282, 103 L.
Ed. 2d 539 (1989).
116
See, Alexander, supra note 105; Ringo, supra note 108.
117
Ringo, supra note 108.
111
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We find that reasoning persuasive, and likewise conclude
that neither the FDCA nor the CSA provides a private right
of action that Ellis can assert. We also note that even if Ellis’
argument had merit, for the reasons explained above, Ellis’
challenge to the legality of the lethal injection protocol would
not invalidate his sentence.118 So, we find no merit to his
assignment of error.
(c) Sufficiency of Evidence
(i) Background
The jury was instructed, at the aggravation hearing, as to several of the aggravating circumstances set forth in § 29-2523(1).
As relevant, the jury was instructed that it should find an
aggravating circumstance if it found that Ellis had “a substantial prior history of serious assaultive or terrorizing criminal
activity.”119 The jury was also instructed to find whether the
murder was especially heinous, atrocious, cruel, or manifested
exceptional depravity.120 The jury was instructed that the murder was especially heinous, atrocious, or cruel if Ellis inflicted
serious mental anguish or serious physical abuse, meaning
torture, sadism, or sexual abuse, on Amber before her death.
And the jury was told that the murder manifested exceptional
depravity if Ellis apparently relished the murder, inflicted gratuitous violence on Amber, or needlessly mutilated her; if there
was a cold, calculating planning of Amber’s death; or if Amber
was helpless.
In determining whether those aggravating circumstances
existed, the jury was instructed to consider the evidence
received at the trial of guilt.121 And the State adduced additional
evidence at the aggravation hearing. Evidence of Ellis’ prior
criminal convictions was presented, establishing that Ellis had
been convicted of two robberies and two associated charges of
118
See
See
120
See
121
See
119
Mata, supra note 32.
§ 29-2523(1)(a).
§ 29-2523(1)(d).
§ 29-2520(4)(c).
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use of a firearm to commit a felony122 and two counts of first
degree sexual assault on a child in connection with his assaults
of his stepdaughters. And the State adduced testimony from
Ellis’ former daughter-in-law, who had become involved in
a sexual relationship with Ellis after she and Ellis’ son were
divorced. She described how Ellis threatened and harassed
her and violently assaulted her on several occasions. The jury
was instructed that the State had to prove beyond a reasonable
doubt that Ellis had committed the uncharged offenses committed—specifically, whether Ellis had committed the offense of
terroristic threats, assault in the third degree, or false imprisonment in the first degree.
The jury found that Ellis had a substantial prior history
of serious assaultive or terrorizing criminal activity123 and
that Amber’s killing was especially heinous, atrocious, cruel,
or manifested exceptional depravity by ordinary standards of
morality and intelligence.124
(ii) Assignment of Error
Ellis argues that there was insufficient evidence for the jury
to find either of those aggravating circumstances and that as a
result, the sentencing panel erred in relying on those circumstances in reaching the sentence of death.
(iii) Standard of Review
[28] When reviewing the sufficiency of the evidence to sustain the trier of fact’s finding of an aggravating circumstance,
the relevant question for this 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.125
122
See, State v. Ellis, 219 Neb. 408, 363 N.W.2d 389 (1985); State v. Ellis,
214 Neb. 172, 333 N.W.2d 391 (1983).
123
See § 29-2523(1)(a).
124
See § 29-2523(1)(d).
125
Sandoval, supra note 39; Gales, supra note 63.
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(iv) Analysis
[29] Ellis’ first argument is that there was insufficient evidence to find that he has a substantial prior history of serious
assaultive or terrorizing criminal activity.126 Ellis contends
that because the testimony of his former daughter-in-law was
uncorroborated, it was insufficient to support the uncharged
conduct used by the State to prove this aggravating circumstance. This argument is plainly without merit. To begin with,
the credibility of witnesses is for the jury, and a jury’s findings may be based upon the uncorroborated testimony of a
single witness.127 Ellis’ former daughter-in-law’s testimony,
even standing alone, would have been sufficient evidence to
support the jury’s finding.128
But that testimony did not stand alone. As noted above, the
State also adduced evidence of Ellis’ convictions for armed
robbery and sexual assault. And we note that while evidence
that Ellis had sexually assaulted his stepdaughters should not
have been admitted at trial, it would have been admissible
during the aggravation hearing as relevant to this aggravating
circumstance.129 Taken together, the evidence was certainly sufficient to prove Ellis’ substantial prior history of serious assault
ive or terrorizing criminal activity.130
Ellis also argues that there was insufficient evidence to support a finding that the killing was especially heinous, atrocious,
or cruel.131 Ellis contends that “there was no clear directive
from the jury” that it had found sexual abuse had occurred
126
See § 29-2523(1)(a).
See, State v. Campbell, 239 Neb. 14, 473 N.W.2d 420 (1991); State v.
Loveless, 234 Neb. 463, 451 N.W.2d 692 (1990).
128
See id.
129
See, generally, Galindo, supra note 39. See, e.g., State v. Williams, 73
Ohio St. 3d 153, 652 N.E.2d 721 (1995); State v. Holden, 321 N.C. 125,
362 S.E.2d 513 (1987); State v. Price, 126 Wash. App. 617, 109 P.3d 27
(2005); LaFevers v. State, 897 P.2d 292 (Okla. Crim. App. 1995).
130
See, e.g., Hessler, supra note 54; Bjorklund, supra note 54; Holtan, supra
note 54; Rust, supra note 54.
131
See § 29-2523(1)(d).
127
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before Amber’s death.132 But, given our standard of review,
that is not the question. Rather, the question is whether taken
in the light most favorable to the State, a rational jury could
have found that sexual abuse had occurred. Given how Amber’s
clothing had been removed, and Ellis’ statements admitting to
rape and inquiring about the degradation of semen, there is
little question that the evidence was sufficient to support a finding of sexual abuse. And this was sufficient to prove that the
murder was especially heinous, atrocious, or cruel.133
Finally, Ellis contends that the evidence was insufficient
to prove that the murder manifested exceptional depravity by
ordinary standards of morality and intelligence.134 But in support of this contention, Ellis merely restates his argument with
respect to whether the victim was “helpless,” which we have
rejected above.
In sum, the evidence was sufficient to support the jury’s
findings of aggravating circumstances. Ellis’ assignment of
error has no merit.
(d) Failure to Find Statutory
Mitigating Circumstances
(i) Background
At sentencing, Ellis presented expert testimony that he had
schizoaffective disorder and a history of polysubstance abuse.
However, Ellis’ expert witness, Dr. Bruce Gutnik, admitted that
his diagnosis was based on Ellis’ self-reporting of symptoms
such as hallucinations and emotional instability. Gutnik also
admitted that Ellis seemed to be exaggerating some of his
symptoms, and Gutnik noted that he had been unable to corroborate some of Ellis’ self-reported symptoms. And Gutnik
had not performed any psychological tests on Ellis that might
have detected malingering.
132
Brief for appellant at 90.
See, e.g., Gales, supra note 63; State v. Otey, 205 Neb. 90, 287 N.W.2d 36
(1979).
134
See § 29-2523(1)(d).
133
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The State presented Dr. Y. Scott Moore as a rebuttal witness. Moore found no evidence of schizophrenia, noting that
Ellis displayed no symptoms of schizophrenia when he was
examined despite reporting that he had not been medicated
for approximately 2 years. Instead, Moore diagnosed Ellis
with antisocial personality disorder, which Moore explained is
not a psychotic disorder, although it is a mental disorder that
can be serious. Moore said that psychological testing that had
previously been performed at the Lincoln Regional Center had
suggested that Ellis was exaggerating symptoms and malingering, and Moore explained how Ellis’ self-reported symptoms
were more consistent with deception than a genuine mental illness.
Ellis argued that this evidence proved two mitigating circumstances: The crime was committed while the offender
was under the influence of extreme mental or emotional disturbance,135 and at the time of the crime, the capacity of the
defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of
law was impaired as a result of mental illness, mental defect,
or intoxication.136 But the sentencing panel found that while
Ellis suffered from some sort of mental condition, the evidence did not show that his condition was “extreme.”137 And
the sentencing panel found the evidence insufficient to show
that on November 29, 2005, Ellis was unable to appreciate the
wrongfulness of his conduct or conform his conduct to the law.
Thus, the sentencing panel did not find either of these statutory
mitigating circumstances to exist. But the sentencing panel did
consider Ellis’ history of mental health problems as a nonstatutory mitigating circumstance,138 although the panel found it did
not approach or exceed the weight the panel gave to the aggravating circumstances that had been found.
135
See § 29-2523(2)(c).
See § 29-2523(2)(g).
137
See State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
138
See State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977), disapproved
on other grounds, State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990).
136
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(ii) Assignment of Error
Ellis assigns that the sentencing panel erred in failing to find
the evidence submitted at the sentencing hearing supported a
finding of statutory mitigating factors under § 29-2523(2)(c)
and (g).
(iii) Standard of Review
[30,31] The sentencing panel’s determination of the existence or nonexistence of a mitigating circumstance is subject
to de novo review by this court.139 We note that while there is
no burden of proof with regard to mitigating circumstances,
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 Ellis.140
(iv) Analysis
Ellis argues that a diagnosis of either schizoaffective disorder or antisocial personality disorder would prove that the
crime was committed while Ellis was under the influence of
extreme mental or emotional disturbance within the meaning
of § 29-2523(2)(c). But we have explained that for purposes of
§ 29-2523(2)(c), “extreme” means that the disturbance must be
“‘existing in the highest or the greatest possible degree, very
great, intense, or most severe.’”141 Neither expert who testified
at sentencing described a condition that could be fairly characterized as extreme.
Beyond that, given the evidence of malingering on Ellis’
part, Moore’s testimony was more persuasive. And Moore
described a person who has antisocial personality disorder as
someone who does not think in terms of right and wrong, but
instead in terms of self-gratification, and does not understand
or have interest in the rights or feelings of others. While this
is an apt description of what the record establishes concerning
139
See, Gales, supra note 63; Dunster, supra note 137; State v. Reeves, 216
Neb. 206, 344 N.W.2d 433 (1984).
140
See Vela, supra note 39.
141
Dunster, supra note 137, 262 Neb. at 369, 631 N.W.2d at 911, quoting
Holtan, supra note 54.
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Ellis’ behavior, it is not an extreme mental disturbance, nor are
we persuaded that it in any way mitigates Ellis’ conduct.
With respect to § 29-2523(2)(g), we agree with the sentencing panel that the evidence was insufficient to support a finding that at the time of the crime, Ellis was unable to appreciate
the wrongfulness of his conduct or conform his conduct to the
requirements of law. Neither Gutnik nor Moore testified to
that effect. Gutnik did not express an opinion on Ellis’ ability
to appreciate the wrongfulness of his conduct or conform it to
the law at any time, and although Moore discussed the general
effect of antisocial personality disorder on a person’s ability to
distinguish right from wrong, Moore specifically said that he
was “not able to provide any information about [Ellis’] state
of mind at the time of the crime.” Moore explained that Ellis
denied committing the crime and that “[h]is denial does not
seem to be the outgrowth of any sort of psychotic thinking.”
And, we note, Ellis’ evident attempts to conceal the crime are
inconsistent with any claim that he was unable to appreciate
its wrongfulness.
In sum, the evidence falls far short of proving what is
required by § 29-2523(2)(g). We have said, in the context of an
insanity defense, that the fact that a defendant has some form
of mental illness or defect does not by itself establish insanity.142 The same is true of § 29-2523(2)(g). Because there was
no evidence that Ellis’ ability to appreciate the wrongfulness of
his conduct or conform his conduct to the law was impaired at
any time, much less at the time of the crime, there was no basis
to find this mitigating circumstance.143
We find no merit to Ellis’ argument that the sentencing panel
should have found statutory mitigating circumstances.
(e) Sentencing Panel Proportionality Review
(i) Background
In a capital sentencing proceeding, the sentencing panel is
required to consider whether the sentence of death is excessive
142
143
State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
See, Sandoval, supra note 39; State v. Victor, 235 Neb. 770, 457 N.W.2d
431 (1990).
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or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.144 In this case, the
panel explained that it found three opinions of this court to be
particularly pertinent in its proportionality review: Hessler,145
State v. Joubert,146 and State v. Otey.147 The panel found that
in light of its review of those cases, which will be discussed
in more detail below, imposing a sentence of death in Ellis’
case would not be excessive or disproportionate to the penalty
imposed in similar cases.
(ii) Assignment of Error
Ellis argues that the sentencing panel erred in the proportionality review to be conducted pursuant to § 29-2522(3) and thus
violated Ellis’ rights under the 5th, 8th, and 14th Amendments
to the U.S. Constitution.
(iii) Standard of Review
[32] In a capital sentencing proceeding, this court conducts
an independent review of the record to determine if the evidence
is sufficient to support imposition of the death penalty.148
(iv) Analysis
Ellis’ argument is simply that the facts of Hessler, Joubert,
and Otey are insufficiently similar to those of the instant case
to make a valid comparison. We disagree. Obviously, a proportionality review does not require that a court “color match”
cases precisely.149 It would be virtually impossible to find two
murder cases which are the same in all respects.150 Instead,
the question is simply whether the cases being compared are
sufficiently similar, considering both the crime and the defend
ant, to provide the court with a useful frame of reference for
144
§ 29-2522(3).
Hessler, supra note 54.
146
State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
147
Otey, supra note 133.
148
Vela, supra note 39.
149
See State v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991).
150
State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
145
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e
valuating the sentence in this case. And the cases relied upon
by the sentencing panel in this instance were sufficiently similar for purposes of evaluating proportionality.
In Hessler, the defendant was convicted of first degree murder, kidnapping, first degree sexual assault on a child, and use
of a firearm to commit a felony, based upon the killing of a 15year-old girl who disappeared while making deliveries on her
newspaper route.151 The girl’s body was found in the basement
of an abandoned house. The defendant admitted to having sex
with her, but claimed it was consensual; he said that after the
victim suggested she would not keep the encounter secret, he
took her to the basement of the abandoned house and shot her.
The defendant was sentenced to death based upon findings that
he had a substantial history of serious assaultive or terrorizing
criminal activity, that the murder was committed in an effort
to conceal the commission of a crime, and that the murder
was especially heinous, atrocious, cruel, or manifested exceptional depravity.152
In Joubert, the defendant was convicted of two counts of
first degree murder arising out of the killings of two young
boys.153 In each instance, the defendant had abducted the victim and taken him to a secluded area, where he tormented and
killed each victim. The defendant was sentenced to death in
each case based upon findings that the murder was committed in an effort to conceal the commission of a crime; that the
murder was especially heinous, atrocious, cruel, or manifested
exceptional depravity; and, in one case, that the defendant had
a substantial history of serious assaultive or terrorizing criminal activity.154
Finally, in Otey, the defendant was convicted of first degree
murder in the perpetration of a first degree sexual assault, after
he entered the victim’s apartment and raped her, then stabbed
her, struck her on the head with a hammer, and strangled her
151
Hessler, supra note 54.
See id.
153
Joubert, supra note 146.
154
See id.
152
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state v. ellis
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with a belt.155 The defendant was sentenced to death based
upon the court’s findings that the murder was committed in an
effort to conceal the commission of a crime and that the murder
was especially heinous, atrocious, cruel, or manifested exceptional depravity.156
Ellis asserts that
the facts in these three cases are in no way similar to this
case. Each of the defendants in the cases the sentencing
panel determined were to be used in their proportionality
analysis confessed the facts supporting their convictions.
The testimony provided by the State’s witnesses in this
case does not establish any facts remotely similar to the
facts in these cases.157
Ellis is essentially arguing that the instant case is not comparable to the cases relied upon by the sentencing panel because
in this case, Ellis neither confessed nor left a living witness. In
other words, Ellis seeks to benefit from the partial success of
his efforts to conceal direct evidence of his crime.
But that is one form of success for which society has no
reward.158 While there is no direct evidence of many of the
details of the crime that are most pertinent to this issue, there
is plenty of circumstantial evidence, and it does not take much
imagination to infer from that evidence how events must have
unfolded when Amber was abducted, taken to a rural area,
raped, and then murdered. Circumstantial evidence, we have
said, is sufficient to support the inferences necessary to convict
someone of murder159; there is no reason that it cannot also
be used to support the inferences necessary to evaluate a mur
derer’s appropriate sentence.
In short, we find no merit to Ellis’ argument that the cases
relied upon in the sentencing panel’s proportionality review
155
See, State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991); Otey, supra
note 133.
156
See id.
157
Brief for appellant at 100-101.
158
See Edwards, supra note 22.
159
See id.
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were not comparable. On our de novo review, we agree with
the sentencing panel that those cases are relevant and helpful in
evaluating the proportionality of Ellis’ sentence.
(f) Supreme Court De Novo Review
and Proportionality Review
[33] Finally, in reviewing a sentence of death, we conduct a
de novo review of the record to determine whether the aggravating and mitigating circumstances support the imposition
of the death penalty.160 In so doing, we consider whether the
aggravating circumstances justify imposition of a sentence
of death and whether the mitigating circumstances found to
exist approach or exceed the weight given to the aggravating
circumstances.161 Having considered the evidence, we are of
the opinion that the aggravating circumstances—particularly
the cruelty inflicted by Ellis’ abduction and sexual assault of
Amber—justify imposing the death penalty and that the sole
mitigating circumstance identified by the sentencing panel—
Ellis’ history of mental health problems—does not approach or
outweigh those aggravating circumstances. We conclude that
the aggravating and mitigating circumstances support imposing
the death penalty.
[34,35] In addition, we are 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.162 The purpose of such
review is to ensure that the sentence imposed in a case is no
greater than those imposed in other cases with the same or
similar circumstances.163 Our 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 us
to compare the aggravating and mitigating circumstances of
a case with those present in other cases in which the death
160
Gales, supra note 63.
See § 29-2522(1) and (2).
162
See, § 29-2521.03; Palmer, supra note 54.
163
See Vela, supra note 39.
161
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p
enalty 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.164
In conducting our review, we agree with the sentencing
panel that our decisions in Hessler, Joubert, and Otey, discussed in detail above, are particularly pertinent here.165 In
addition, we note our decisions in State v. Gales166 and State v.
Williams.167 In Gales, the defendant was convicted of, as rele
vant, two counts of first degree murder.168 The defendant had,
as relevant, raped and murdered a 13-year-old girl and murdered her 7-year-old brother because he was a potential witness. The defendant was sentenced to death based on findings
that he had previously been convicted of a crime of violence,
he committed the murders in an effort to conceal his identity as
the perpetrator, he committed another murder at the same time,
and, with respect to the girl, the murder was especially heinous, atrocious, or cruel.169 And in Williams, the defendant was
convicted of two counts of murder in the first degree, and one
count of first degree sexual assault, after he shot two women,
raping one of them.170 He was sentenced to death based upon
findings that he had previously been convicted of a crime of
violence, he committed the murders in an effort to conceal his
identity as the perpetrator, he committed another murder at the
same time, and the murder was especially heinous, atrocious,
or cruel.171
Having reviewed our capital jurisprudence, and taking note
of comparable cases, we are persuaded that the imposition of
the sentence in this case was not greater than those imposed in
other cases with the same or similar circumstances.
164
See, Hessler, supra note 54; Gales, supra note 63.
Hessler, supra note 54; Joubert, supra note 146; Otey, supra note 133.
166
See, Gales, supra note 63.
167
Williams, supra note 150.
168
See Gales, supra note 63.
169
See id.
170
See Williams, supra note 150.
171
See id.
165
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III. Conclusion
Although we find that Ellis’ argument regarding evidence
admitted pursuant to rule 404(2) has merit, we find that the
error was harmless; the physical evidence, and statements Ellis
was reported to have made before the physical evidence connected him to the crime, established his guilt beyond any reasonable dispute. The district court, however, correctly overruled
Ellis’ objections to alleged “jailhouse informer” testimony and
DNA evidence. And we find no merit to Ellis’ constitutional
challenges to Nebraska’s capital sentencing scheme or his
claims that the evidence is insufficient to support the findings
of the jury and the sentencing panel. Finally, we find, on our
de novo review, that the death penalty is warranted and proportional in this case. Therefore, Ellis’ conviction and sentence
are affirmed.
Affirmed.
Heavican, C.J., not participating.
State of Nebraska, appellee, v.
Mauro Yos-Chiguil, appellant.
___ N.W.2d ___
Filed May 27, 2011.
No. S-10-671.
1. Jurisdiction: Appeal and Error. An appellate court determines a jurisdictional
question that does not involve a factual dispute as a matter of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
3. Postconviction: Appeal and Error. Whether a claim raised in a postconviction
proceeding is procedurally barred presents a question of law.
4. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact.
Determinations regarding whether counsel was deficient and whether the defend
ant was prejudiced are questions of law that an appellate court reviews independently of the lower court’s decision. The court reviews factual findings for
clear error.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
6. Postconviction: Final Orders. Within a postconviction proceeding, an order
granting an evidentiary hearing on some issues and denying a hearing on others
is a final order.
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