HEAVICAN, C.J.
Marco Enrique Torres, Jr., was convicted by jury of two counts of first degree murder, one count of robbery, three counts of use of a deadly weapon to commit a felony, and one count of unauthorized use of a financial transaction device. Torres was sentenced to death on each count of murder, 50 years' to 50 years' imprisonment on each of the robbery and use counts, and 20 months' to 5 years' imprisonment for the unauthorized use of a financial transaction device. In this automatic appeal of his conviction and death sentence,
On March 5, 2007, at approximately 8:50 p.m., law enforcement officers responded
Autopsies were performed on both Hall and Donohue by a forensic pathologist. Hall's autopsy revealed that he had suffered three "contact" gunshot wounds to the head and that those wounds were made by a small-caliber weapon. Hall's lips were purple, suggesting a lack of oxygen prior to his death. Hall's cause of death was listed as asphyxiation by gagging, suffocation, physical restraint, and multiple deeply penetrating gunshot wounds. The pathologist testified that in any case, the gunshots would have killed Hall, but that if Hall had not been shot, he would have asphyxiated.
Donohue's cause of death was three gunshot wounds to the head and chest. The pathologist testified that these shots were fired at close range, again probably contact or near-contact shots.
The pathologist was unable to give an exact time of death for either Hall or Donohue, but did testify that it was his opinion that both died at or around the same time, on March 3, 2007, or possibly in the early hours of March 4. The pathologist indicated that it was not possible to determine who died first.
DNA testing was performed on the bathrobe belt found gagging Hall and the extension cord binding Hall, as well as on cigarette butts found in Donohue's room. Torres' DNA was found in a mixture with Hall's DNA on the belt and could not be excluded as a source of DNA on the extension cord. And Torres' DNA was a contributor to DNA mixtures found on the cigarette butts.
From the record, it appears that Hall was a generous person. This generosity was apparently responsible for Donohue's taking up residence in Hall's home—Hall allowed Donohue to move into a room on the second floor. This generosity was also apparently the reason for Padilla's presence in Hall's home; she moved in after agreeing to keep the house clean and look after Hall's many cats.
Padilla was dating a man named "Jose Cross," who dealt drugs in the Grand Island area. Cross eventually moved into Hall's home and used the house as a base for his drug business. Through that drug business, Cross was acquainted with a man named "William Packer," who also ran an area drug business. It was through Packer that Torres met Cross, Padilla, and Donohue.
In early February 2007, Torres informed Packer that he wished to obtain a gun. Packer took Torres to the home of a man who arranged for the delivery of a weapon. The man left Torres and Packer alone in a room with the weapon, and, according to the man's testimony, after Torres and Packer left the room, the gun was also gone. The man further testified that the gun in question was a black or brown .22-caliber revolver.
On March 1, 2007, Torres contacted Cross about staying at Hall's home, as he had nowhere else to go. Cross was reluctant, but Donohue agreed to allow Torres to stay in his room.
It is not clear from the record what Torres, Donohue, and Hall did during the daytime hours of March 2, 2007. But at approximately 11 p.m., Hall went to a discount store in Grand Island to purchase a home theater system. Afterward, Hall, who was driving his white Ford Focus station wagon, took a friend and her son out for a late meal. Hall paid for the meal at 12:49 a.m. on March 3 and then dropped off the friend and her son at the son's apartment. This was apparently the last time Hall was seen alive; another witness testified that she had daily or near-daily contact with Hall, but that the last time she spoke with him was on March 2.
Bank records show that between 2:41 and 2:54 a.m. on March 3, 2007, Hall's automatic teller machine (ATM) card was used several times. ATM security footage reveals that it was Torres who was using Hall's card. Bank records indicated that the last transaction, at 2:54 a.m., occurred at a discount store in Grand Island. Security footage from that store shows Torres entering the store alone at approximately 2:52 a.m. and leaving at approximately 3:30 a.m. Torres then apparently went to a motel in Grand Island.
Telephone records from the motel show that repeated calls were made to Cross' cellular telephone from rooms in which Torres was known to have stayed. According to Cross, in one call, Torres allegedly asked for drugs, so Cross arranged for his brother, who was also in Grand Island, to bring some drugs to Torres. In a second call, Torres allegedly told Cross that Cross and Padilla should not go back to Hall's house without letting Torres know. Torres then indicated that after Cross and Padilla had left Hall's house earlier the previous day, Donohue became angry and tried to break into Cross and Padilla's room. When Torres tried to stop him, Hall came upstairs and mentioned something about calling the police. Cross testified, "[Torres] told me that, you know, can't have cops, and he had to put them to sleep." Cross testified that he understood that to mean that Torres had killed Hall and Donohue. Cross testified that he did not remember when these conversations took place; telephone records suggest that the calls were probably placed at 10 a.m. or later on March 3, 2007.
Torres checked out of the motel in Grand Island on March 5, 2007. Several days later, on or about March 8, Torres arrived in Houston, Texas. Once in Houston, he contacted an ex-girlfriend who resided there. The ex-girlfriend met Torres, who was driving a white station wagon, and accompanied him to a local motel.
While at the motel, Torres learned of the investigation into the murders of Hall and Donohue and that he was wanted for questioning. Torres also learned that law enforcement was on the lookout for Hall's white Ford Focus station wagon. That vehicle was later found in Texas and had been burned. A partial vehicle identification number was traced back to Hall and to the investigation into Hall's murder. Torres' ex-girlfriend testified that she accompanied Torres to the area where the burned station wagon was recovered, but that she did not actually witness Torres set fire to the vehicle. Houston area law enforcement later determined that Torres
Grand Island law enforcement officers went to Texas to interview Torres. According to the testimony of a Grand Island investigator, one of the first things Torres did during the interview was deny killing "those people." During the interview, Torres indicated that he knew Packer, Cross, and Padilla, as well as some of their acquaintances, including Hall, Donohue, and the man who arranged for the delivery of a weapon to Torres. Torres acknowledged that he used drugs with some of these individuals.
Torres then indicated that Packer, Cross, and Padilla were manufacturing a methamphetamine-like substance at Hall's house with the assistance of Donohue and with Hall's knowledge. During this interview, Torres initially blamed Cross and Padilla for the murders and, when he learned both had alibis, shifted the blame to Packer.
In Torres' possession when he was apprehended was Packer's cellular telephone. Torres explained that he had gotten the telephone from Packer and also that Hall had given Torres Hall's car and ATM card. At one point, Torres indicated that Cross and Padilla went with him to the ATM to use the card. But Torres also told law enforcement that Padilla had given him Hall's ATM card, jokingly noting to Torres, "[h]a ha, I have ... Hall's card" as she did so. Torres stated that he used the card at the discount store only to prove to Padilla that she had already taken all of the money out of the account. In addition, law enforcement recovered from Torres' motel room in Houston ammunition for a.22-caliber weapon.
Torres' trial was held August 17 to 27, 2009. The jury found him guilty of two counts of first degree murder, one count of robbery, three counts of use of a deadly weapon to commit a felony, and one count of unauthorized use of a financial transaction device.
The State alleged four aggravating factors pursuant to Neb.Rev.Stat. § 29-2523 (Reissue 2008): (1) The murder was committed in an effort to conceal the commission of a crime or to conceal the identity of the perpetrator of such crime
On January 29, 2010, the sentencing panel made written findings as required by statute and found all four aggravating factors as alleged above with respect to Hall's
We are now presented with Torres' automatic appeal of his convictions and sentences.
Torres assigns, renumbered, that the district court erred in (1) admitting evidence of certain prior acts of Torres under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Reissue 2008); (2) admitting the testimony of two witnesses regarding Torres' alleged efforts to get those witnesses to testify falsely on Torres' behalf; and (3) overruling his motion to suppress.
Torres also assigns, restated and consolidated, that the sentencing panel erred in (4) receiving for purposes of the State's proof of aggravating circumstances the trial court's bill of exceptions over Torres' objections; (5) its retroactive application of Neb.Rev.Stat. §§ 83-964 to 83-972 (Cum. Supp.2010); (6) not finding that § 83-964 is unconstitutional in violation of the distribution of powers clause of the Nebraska Constitution,
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.
The interpretation of a statute presents a question of law.
In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, an appellate court applies a two-part standard of review. With regard to historical facts, an appellate court reviews the trial court's
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.
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.
The sentencing panel's determination of the existence or nonexistence of a mitigating circumstance is subject to de novo review by this court.
In his first assignment of error, Torres argues that the district court erred in admitting evidence of a prior incident wherein Torres kidnapped Packer and then held Packer, Cross, and Padilla at gunpoint. On February 12, 2007, Packer called Cross and asked Cross for permission to stop by Hall's residence, where Cross was living. Cross agreed. But, Cross said, when Packer arrived, Torres was with Packer, holding Packer at gunpoint. Torres then forced Cross and Packer into Cross and Padilla's room. Torres made Cross bind Packer with duct tape. Torres took Packer's ATM card, obtained the personal identification number for the card, and ordered Cross and Padilla to withdraw nearly $800 from the account. Cross gave the money to Torres. Eventually, Torres released Packer, Cross, and Padilla, but took and kept Packer's money and Packer's cellular telephone. Cross testified that Torres let Packer go after Cross agreed to provide transportation for Torres to Texas.
During this event, Torres made Packer contact the Lincoln and Omaha airport authorities, as well as two airlines and various other individuals, in order to obtain a plane ticket to get Torres to Texas. Apparently, Torres planned to fly to Texas to meet with some associates. Meanwhile, Cross was to drive to Texas to deliver a package of "ice," a potent form of methamphetamine, for Torres. Though apparently Packer was unable to provide the "ice" to Torres, Torres attempted to fill the order so it could be taken to Texas. Though the record is not clear about the details, Torres apparently kidnapped Packer in an attempt to make him fill the order for "ice," which Torres needed to be delivered to Texas. Cross testified that during the kidnapping and the days following, he made certain promises to Torres involving driving Torres to Texas because Cross wanted to "get rid of the problem, which was to take [Torres] back to [Texas]."
We note that Torres was, in a separate case, convicted of kidnapping and robbery and the two associated use of a firearm counts for the February 2007 incident described above and was sentenced to consecutive
Section 27-404(2) provides in relevant part:
Rule 404(2) prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner.
A proponent of evidence offered pursuant to rule 404(2) shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered, and the trial court shall similarly state the purpose or purposes for which such evidence is received.
Before trial, both the State and Torres filed motions regarding the admissibility of the evidence relating to this kidnapping and robbery. A hearing was held on these motions, at which time the bill of exceptions from Torres' trial on the kidnapping charge was admitted into evidence. Following the hearing, the district court overruled Torres' motion and found by clear and convincing evidence that the incident did occur and was admissible for purposes of motive, intent, plan, knowledge, opportunity, and identity. The district court noted:
However, at trial, the district court admitted the evidence as relevant only to show Torres' intent, motive, and opportunity.
The jury was instructed accordingly, both at the time the evidence was admitted
On appeal, Torres argues that the evidence of this kidnapping was inadmissible, as it was not independently relevant, but, rather, was relevant only to show his propensity to be violent.
Because the jury was instructed only with respect to motive, intent, and opportunity, this court will address only those reasons for independent relevance. We affirm the district court's decision insofar as it concluded that this evidence was admissible to show Torres' motive, but conclude that this evidence was not relevant to show his intent or opportunity. As such, it was error for the district court to instruct the jury that it could consider the evidence with respect to intent and opportunity. However, as we explain below, we conclude that the admission of this evidence for these latter reasons was harmless.
We begin by considering whether this evidence was relevant to show Torres' opportunity to rob and murder Hall and Donohue. The district court explained that the kidnapping offered evidence of the relationship between Torres and Hall's house. But we disagree that this prior incident is relevant to show opportunity.
In essence, the district court found that such evidence was relevant to show that because Torres had been in the house when he kidnapped and robbed Packer, Cross, and Padilla, he had the opportunity to later enter the house to rob and murder Hall and Donohue. But there is no evidence in the record suggesting that this was so. For example, there is no evidence that by having been in the house before, Torres had access to a key, security code, or any other information that might give him the opportunity to again enter the house for the purpose of robbing and murdering Hall and Donohue. And as with intent, opportunity was largely undisputed: Other evidence established that Torres was staying at Hall's house, and it would not have been necessary to admit evidence of the entire incident in order to establish that Torres had been to Hall's house before. As such, we conclude that the prior kidnapping incident was inadmissible to show Torres' opportunity.
Intent is generally defined as "[t]he state of mind accompanying an act."
We next address motive. The district court concluded the February 2007 incident showed that Torres' motive to restrain, rob, and kill Hall was to obtain money and transportation to Texas, which was something that Torres, during that prior incident, attempted to obtain in the same manner from Packer, Cross, and Padilla.
On appeal, Torres argues that the evidence relating to the kidnapping of Packer, Cross, and Padilla is simply character, or propensity, evidence and relevant only to show that he is a violent person
Under rule 404(2), "[e]vidence of other crimes or wrongs," while "not admissible to prove the character of a person in order to show that he or she acted in conformity therewith," is admissible for other purposes, including motive. Though difficult to define, character has been described as the generalized tendency to act in a particular way.
There is a fine line between prior bad acts evidence that goes only to the character of the actor and prior bad acts evidence that speaks upon the actor's motive to commit a later crime. And the weaker the inferences of motive, the less probative the evidence on the ultimate issue of identity and the stronger the argument that the court should exclude the evidence to avoid the risk of unfair prejudice.
We agree that motive reasoning requires propensity inferences. But, so long as the evidence is also relevant for reasons not based on the defendant's character, it is admissible under rule 404(2). As one commentator noted:
We acknowledge that in previous cases, we have defined the concept of "special" or "independent" relevance as relevance that "does not depend upon its tendency to show propensity."
In other words, "propensity" is meant to refer simply to criminal propensity, i.e., character.
It is obvious that evidence is not barred by rule 404(2) just because its relevance could be characterized in terms of "propensity." For instance, one of the paradigmatic uses of other acts evidence is the use of previous acts to establish a modus operandi, or "signature," that is methodologically so reminiscent of the charged crime as to earmark it as the defendant's handiwork.
We agree with the district court that in this case, the evidence of the February 2007 kidnapping was independently relevant to show Torres' motive. We note that the motive for that first incident—to obtain money and transportation to Texas—was the same motive Torres had for robbing Hall. Thus, the link between the two incidents is clear; the evidence surrounding the kidnapping shows that Torres' motivation was to get to Texas. Torres made Packer call for plane tickets and made plans for Cross to drive to Texas while Torres flew there. Cross testified that Torres released Packer, Cross, and Padilla only after Cross agreed to drive Torres to Texas. During this event, Torres also had Cross and Padilla withdraw money from Packer's bank account, which money Torres then kept. And in the incident resulting in Hall's and Donohue's deaths, Torres stole Hall's ATM card and attempted multiple times to withdraw money from Hall's bank account. Torres also stole Hall's car, which was later found in Texas and was further linked to Torres by the testimony of Torres' ex-girlfriend.
The evidence surrounding the kidnapping and robbery of Packer, Cross, and Padilla was, therefore, independently relevant because it proved Torres' rather desperate desire for money and transportation to Texas. And when Hall and Donohue were killed, the perpetrator apparently took Hall's money and then drove Hall's car to Texas. The logical relevance of the rule 404(2) evidence does not depend on an inference that Torres acted in conformity with a general propensity to commit crimes—rather, it depends on the inference that the person who killed Hall and Donohue wanted money and transportation to Texas, and the rule 404(2) evidence proved Torres' pressing desire to obtain those specific things. Although
Additionally, we note that the fact that Hall and Donohue ultimately were murdered, in addition to Hall's being robbed, is of no consequence to our determination here. First, as noted above, unlike other theories relating to the introduction of prior bad acts evidence, admission based upon motive does not require any similarity between the prior act and the charged act. This is so because it is the state of mind behind the acts that shows the motive. And in this case, the prior evidence shows that the motives to commit each robbery were the same, even though the latter robbery eventually ended in the deaths of Hall and Donohue.
We are also not persuaded by the insistence in the concurrence that Torres' motive for the Packer kidnapping was not the same as his motive for Hall's and Donahue's murders. The concurrence bases this assertion on its review of the evidence from the kidnapping trial and concludes that the motive as shown at that trial was the result of a drug deal gone bad and was not an effort to obtain money and transportation to Texas. But the concurrence acknowledges that the need for money and transportation was underlying Torres' actions as shown at the kidnapping trial. We do not find this conclusion inconsistent with this court's determination that the continued need for money and transportation was still a motivating factor for Torres to rob Hall and murder Hall and Donohue.
We therefore conclude that the evidence at issue was admissible to show Torres' motive.
We next turn to the question of whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, and we conclude that it was not. Specifically, as explained above, this event was probative of Torres' motive to rob Hall and eventually murder Hall and Donohue. We acknowledge that the evidence was highly prejudicial to Torres; however, it was also highly probative of Torres' motive to commit the charged crimes. We find that the court did not abuse its discretion in concluding that the probative value of the evidence was not outweighed by the potential for unfair prejudice.
We have concluded that the district court was correct in admitting the challenged evidence because it was independently relevant to the issue of Torres' motive, but that the district court erred in admitting the evidence to show Torres' intent and opportunity. We must therefore determine whether the district court's error prejudiced Torres, or whether instead the error was harmless. In making that determination, we must decide whether the giving of the overly broad instruction materially influenced the jury to reach a verdict adverse to the substantial rights of Torres.
Though the district court erroneously instructed the jury that it could consider the prior incident wherein Torres kidnapped Packer, Cross, and Padilla as independently relevant evidence of Torres' intent and opportunity, it did not instruct the jury that it could consider that incident for any reason the jury wished. The instruction as given protected Torres from an inference that simply because he committed the earlier kidnapping, he also committed the crimes at issue in this case.
In short, there was no basis from which the jury could conclude that Torres committed the charged crimes but did not do so intentionally; nor was there any basis for the jury to reason that Torres could not have committed the charged crimes because he had no opportunity to do so. Therefore, permitting the jury to consider Torres' prior bad acts as relevant to those issues could not have prejudiced Torres. The court's erroneous limiting instruction provides no basis for reversing Torres' convictions or sentences.
As such, while we conclude that the district court erred in instructing the jury that it could consider evidence of the prior incident involving Packer, Cross, and Padilla as relevant to show intent and opportunity, we conclude that any error therein was harmless error and not reversible error.
In his second assignment of error, Torres assigns that the district court erred in allowing two witnesses to testify regarding Torres' attempts to have them fabricate evidence exonerating him. Torres contends that the testimonies of these witnesses was hearsay and did not fall within the coconspirator exclusion set forth in Neb. Evid. R. 801(4)(b)(v), Neb.Rev.Stat. § 27-801(4)(b)(v) (Reissue 2008).
Some background is helpful. At trial, there was evidence presented that Torres attempted to bribe witnesses and fabricate evidence in his case. Robert Mattson, one of Torres' fellow inmates at the Hall County jail, testified that Torres wanted Robert to have his wife, Jennifer Mattson, contact law enforcement with a story suggesting that a person other than Torres had admitted to Hall's and Donohue's murders. According to Jennifer, Torres had offered her $10,000 to do so and she met with Torres' mother in furtherance of this plan. Torres actually wrote Jennifer a letter, which was addressed by name to one of his original attorneys, but by location to Jennifer's address, and which detailed the story Torres wished her to tell.
And another of Torres' fellow inmates, Stacy Alexander, testified that Alexander contacted his girlfriend, Amanda Lane, and requested that she assist Torres in convincing Alexander's ex-brother-in-law, James Hemmingway, to approach law enforcement with a story about Torres. Lane testified that she and Hemmingway met Torres' mother at the Grand Island police station. Other evidence shows that Torres' mother actually accompanied Hemmingway inside the police station. However, once there, Hemmingway admitted the fabrication to law enforcement and provided the narrative which Lane had written for him. Lane testified that Torres' mother paid her $300, which she split with Hemmingway.
Rule 801(3) provides that "[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." However, "[a] statement is not hearsay if [it] is offered against a party and is ... a statement by a coconspirator of a party
We begin with the testimony of Jennifer. On appeal, Torres argues that the district court erred in finding Jennifer's testimony was not hearsay under rule 801(4)(b)(v) because there was no evidence presented that she planned to participate in the plot to fabricate evidence.
Torres' argument is without merit. There is no requirement under the plain language of rule 801(4)(b)(v) that the person testifying to the statement be a part of the conspiracy. And this court, in State v. Hudson,
Rather, the only requirements for such statement to be admissible are that (1) the statement be made by a coconspirator, (2) the statement be in furtherance of the conspiracy, and (3) the State show prima facie evidence of that conspiracy by independent evidence. All of these requirements were met with respect to Jennifer's testimony.
First, the statements in question were made by Jennifer's husband, Robert, a coconspirator. These statements were made to Jennifer with the intent to gain her agreement to participate in Robert's and Torres' plan to fabricate evidence in order to exonerate Torres. And Robert's own testimony, introduced prior to Jennifer's testimony, established that the conspiracy existed. Thus, Jennifer's testimony regarding Robert's statements to her was admissible under rule 801(4)(b)(v).
With respect to Lane's testimony, Torres argues that there was insufficient evidence shown that a conspiracy existed and that as such, the statements were not admissible under rule 801(4)(b)(v). We again find Torres' argument without merit.
Prior to Lane's testifying, Alexander testified that he asked Lane to do certain things as requested by Torres. And in her own testimony, Lane stated without objection that Alexander wanted her to talk to Hemmingway about having him "take this story that [Torres] told [Alexander] to the cops." Through Alexander's testimony, the State showed that Torres and Alexander had some type of agreement. When considered along with Lane's testimony, the State has shown that this agreement involved, at least in part, Alexander's inducing Lane and Hemmingway to provide to law enforcement a story intended to exonerate Torres. Such actions constituted a conspiracy, and Torres' argument that the State failed to show prima facie evidence of that conspiracy is without merit.
Torres' second assignment of error is without merit.
In his third assignment of error, Torres argues that the district court erred in overruling his motion to suppress. Torres contends that law enforcement failed to honor his request to cut off questioning during an interview on March 26, 2008, which he claims he did when he stated that he was "done" at around the 2-hour 30-minute mark of the interview.
We stated in State v. Rogers
In this case, Torres waved his hand in front of the interviewing officer, who had been asking a question about telephone calls made by Torres to Cross. At the same time, Torres said to the officer, "End of conversation; we're done." However, immediately afterward, and with no prompting or questioning by law enforcement, Torres continued the conversation regarding the telephone calls. A review of the interview also shows that Torres subsequently continued to freely engage in the interview and continued to converse with the officers.
Based upon these facts, we cannot say that Torres unambiguously or unequivocally asserted his right to remain silent. This court recently noted that "[w]e have never held that any utterance of `I'm done,' no matter what the surrounding circumstances or other statements, will be construed as cutting off all further questioning."
Torres' third assignment of error, and final trial error assignment, is without merit.
In his fourth assignment of error, Torres assigns that the sentencing panel erred in receiving for purposes of the State's proof of aggravating circumstances the trial court's bill of exceptions. Torres argues that the admission of the trial court's bill of exceptions contained inadmissible hearsay and violated his due process and confrontation rights.
Following the jury verdicts of guilty, Torres waived his right to a jury determination of any alleged aggravating circumstances, as provided in § 29-2520(3). That subsection provides:
Section 29-2521 provides the general framework for the sentencing procedure taken in cases involving the death penalty:
Section 29-2521(3) sets out the specific procedure to be followed "[w]hen a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520." And, as is relevant in this case, § 29-2521(2) provides the procedure where a defendant has waived his or her right to a jury determination:
(Emphasis supplied.)
Torres argues that the sentencing panel should not have been permitted to receive the trial record into evidence. He claims that this was improper because two
Based on that statutory language, we concluded that the sentencing panel "not only [had] the statutory authority to consider the trial record," but was "statutorily required to make written findings of fact based upon that record."
In addition to finding that the procedure followed by the sentencing panel was proper, we reject Torres' arguments regarding hearsay, confrontation, and due process. We turn first to hearsay. Hearsay is defined by rule 801(3) as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted"; in other words, an out-of-court statement. But the bill of exceptions at issue was a word-for-word transcription of all of the statements made by the witnesses in court and at Torres' trial. The bill of exceptions, then, quite plainly falls outside of the definition of hearsay. And even if the bill of exceptions was hearsay, it would nevertheless be admissible under § 29-2520 or § 29-2521 as discussed above.
We next address and reject Torres' argument that his right to confrontation was violated when the panel admitted the record of the trial of guilt. But in situations such as this, where a jury determination of aggravating circumstances was waived, the statutes are clear that the panel's determination of those circumstances is to be part of the sentencing proceeding.
Nor do we find that Torres' due process rights were violated. The capital sentencing statutes make it clear that the sentencing panel is to make the determination of aggravating circumstances based upon the trial of guilt and a sentencing hearing. Torres waived his right to have the jury determine the aggravating circumstances. In doing so, he waived many of the rights that are present during such a hearing, but not available at sentencing.
Torres' fourth assignment of error is without merit.
In his fifth assignment of error, Torres argues that the sentencing panel erred in retroactively applying §§ 83-964 to 83-972. Torres contends that the retroactive application of the death penalty statutes would be a violation of the rights given him under the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions.
We recently addressed Torres' basic argument in both State v. Mata,
We did not explicitly address the validity of a death sentence in the context of the Ex Post Facto Clauses of the U.S. and Nebraska Constitutions in Mata or Ellis. Both U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16, provide that no ex post facto law may be passed. A law which purports to apply to events that occurred before the law's enactment, and which disadvantages a defendant by creating or enhancing penalties that did
We find Torres' argument on this point to be without merit. Put simply, the sentencing court always had the authority to sentence Torres to death; the State's enactment of a new method of execution and its accompanying protocol simply made it possible for the State to enforce that sentence. As Mata made clear, the method of execution does not bear upon the sentence of death itself. Nothing about this scenario violates Torres' rights under the Ex Post Facto Clauses of the federal and state Constitutions.
Torres' fifth assignment of error is without merit.
In his sixth assignment of error, Torres argues that § 83-964 is unconstitutional, in violation of the distribution of powers clause of the Nebraska Constitution, Nebraska case law, and the Due Process and Equal Protection Clauses of the 14th Amendment to the U.S. Constitution. Section 83-964 provides: "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."
In Ellis, we recently addressed the question of whether the Legislature could properly delegate to the Department of Correctional Services the function of creating, maintaining, and administering a lethal injection protocol and concluded that it could.
As such, Torres' sixth assignment of error is without merit.
In his seventh and eighth assignments of error, Torres argues generally that the Nebraska death penalty statutes
Torres first argues that § 29-2523(1)(a), which provides as an aggravating circumstance that the defendant "has a substantial prior history of serious assaultive or terrorizing criminal activity," is unconstitutional because it fails to define the terms "substantial," "history," and "serious assaultive or terrorizing criminal activity." We have addressed and rejected this argument before, including most recently in Ellis.
Torres also argues that this aggravator is unconstitutional as applied to him, because the sentencing panel used as evidence of this prior history the incident wherein he kidnapped Packer, Cross, and Padilla. Torres notes that he fed Packer food and drugs and released him unharmed and contends that if this behavior were sufficient to support a finding of this aggravator, such would be unconstitutional.
Torres attempts to downplay the incident involving Packer, Cross, and Padilla. Torres suggests that he held them for a period of time, fed them food and drugs, and then let them go. This characterization is not entirely accurate. Torres held Packer at gunpoint and forced him to drive to Hall's home to meet Cross and Padilla. Torres then held all three at gunpoint. Torres forced Cross and Padilla to tie Packer up. He forced Packer to hand over his ATM card and its personal identification number. Torres then made Cross and Padilla withdraw money from Packer's account to buy food for everyone. Though Cross and Padilla were allowed to leave on their own, they were concerned for Packer's safety and did not want anyone to get hurt, so they returned. Torres then continued to hold them at gunpoint and forced Packer to make various telephone calls to obtain transportation to Texas. Torres eventually let Packer go. Packer indicated that he was released so he could make a court date. However, Packer and Cross both also testified that part of the reason Packer was released was because Cross promised to drive Torres to Texas. And though Packer was allowed to leave, Torres kept Packer's cellular telephone and also took $800 from Packer.
Given the circumstances of Torres' prior assaultive behavior, we decline to conclude that the application of aggravator (1)(a) would be unconstitutional as applied to Torres. Torres' argument with regard to this aggravator is without merit.
Torres next argues that § 29-2523(1)(b) is unconstitutional. This subsection provides as an aggravating circumstance that "[t]he murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of such crime." But we have repeatedly held that this aggravator is constitutional, most recently in State v. Hessler,
Finally, Torres contends that § 29-2523(1)(d), which provides as an aggravating circumstance that the murder was "especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence," is unconstitutional. In particular, Torres takes issue, as many have before him, with the "exceptional depravity" prong of this aggravator.
We decline to address what so many courts have previously found to be a constitutional aggravator,
Torres also argues that aggravator (1)(d) is unconstitutional as applied to him. Torres contends:
We do not find this contention relevant to a discussion of whether aggravator (1)(d) was constitutional as applied to Torres. In its findings, the panel noted that Torres relished the murders, as evidenced by the fact that he told Cross that he put Hall and Donohue to "sleep," as well as the fact that he later retold the story of the murders to a fellow inmate, Robert, while incarcerated. The panel also noted that Hall was tied up and gagged and was helpless when robbed, shot, and killed. These facts are not lessened by the fact that the cord binding Hall was not very tight or the fact that Hall might not have been tied up very long before he was shot. We decline to conclude that these factors would somehow make the application of this aggravator to Torres unconstitutional. His argument on this point, and also with regard to this aggravator, is without merit.
In his ninth assignment of error, Torres first argues that the sentencing panel erred when it considered Hall's "`mental suffering'" and "`uncertainty as to [his] ultimate fate'" as support for finding that § 29-2523(1)(d) applied to Torres. The basis of Torres' argument is this court's decision in State v. Sandoval,
We agree with Torres insofar as he argues that mental anguish should have not been considered by the sentencing panel, and thus, the findings made by the panel to that end were erroneous. A jury may not consider a victim's mental anguish in finding the existence of the aggravating circumstance set forth in § 29-2523(1)(d). But unlike in Sandoval, where the error resulted in a finding that the aggravator was not established, in this case, the failure of this one finding does not mean the failure of the entire aggravator.
But aggravator (1)(d) 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."
Having concluded that the sentencing panel erred in considering Hall's mental suffering, we now turn to Torres' argument that the sentencing panel erred in finding that the State proved beyond a reasonable doubt the existence of § 29-2523(1)(d) with regard to the murder of Hall.
We find that the "exceptional depravity" prong was proved beyond a reasonable doubt and supports the finding of this aggravator.
Exceptional depravity pertains to the state of mind of the actor and may be proved by or inferred from the defendant's conduct at or near the time of the offense.
The evidence in this case was sufficient to show beyond a reasonable doubt the presence of this aggravator with regard to Hall's death. A "helpless" victim is readily understood to be one who is unable to defend oneself, or to act without help.
In his 10th assignment of error, Torres contends the sentencing panel also erred in finding that the State proved beyond a reasonable doubt the existence of § 29-2523(1)(a) and (b). Torres does not appeal the sentencing panel's determination that at the time the murder was committed, he also committed another murder, thereby establishing aggravator (1)(e).
Torres first argues that the sentencing panel erred in finding he had a substantial history of serious assaultive or terrorizing activity and that thus, the finding of aggravator (1)(a) was in error. Torres argues that he had only two prior incidents, a domestic violence charge from 1999 and the kidnapping and other charges surrounding the February 2007 incident with Packer, Cross, and Padilla. Torres contends that the kidnapping was "not sufficiently removed in time or sequence from the events of the homicides to warrant a finding that the kidnapping established a `substantial history'" and notes that the only prior violent offense he had was a misdemeanor domestic violence assault from "many years earlier."
We have previously addressed an argument similar to the one made by Torres here. In State v. Moore,
In this case, Torres had previously been convicted of kidnapping, robbery, and two counts of use of a weapon to commit a felony in the February 2007 incident involving Packer, Cross, and Padilla. That event took place 3 weeks prior to the murders of Hall and Donohue. Particularly given the nature of that prior incident, it alone is a sufficient substantial history under aggravator (1)(a).
Even if it were not, aggravator (1)(a) would still have been met. In addition to being met by a substantial prior history, the aggravator is met when the offender was previously convicted of a "crime involving the use or threat of violence."
Torres next argues that the sentencing panel erred in finding that § 29-2523(1)(b) was met. That subsection provides as an aggravating circumstance the situation where one murder was "committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of such crime."
This court held in State v. Lotter
Torres contends that the sentencing panel erred in finding this aggravator because it lacked a jury finding as to whether Torres was guilty of premeditated murder or felony murder. Torres argues that if he was convicted of felony murder, the predicate felony—in this case, robbery—could not be used as the "crime" to be concealed for purposes of this aggravator. Torres cites no authority to suggest that the robbery could not be used to support the finding of this aggravator; nor do we find his argument persuasive.
A review of the jury instructions and verdict forms shows that the jury was instructed as to the elements of both first degree murder and felony murder with the predicate offense of robbery. In addition, the jury was instructed as to the elements of the separate charge of robbery. Torres was found guilty on all charges. Thus, it is clear that the jury found Torres guilty of robbery and murder, regardless of whether the ultimate conviction was premeditated murder and robbery or felony murder with robbery as its predicate offense. The robbery was clearly a separate offense. Nor are we persuaded that the predicate felony for a felony murder cannot, for purposes of aggravator (1)(b), be the crime that the perpetrator sought to conceal. The fact that double jeopardy might preclude punishment for the predicate felony
The sentencing panel did not err in finding that the State proved beyond a reasonable doubt aggravator (1)(b).
In his 11th and final assignment of error, Torres asserts that the sentencing panel erred by not finding any statutory or non-statutory mitigating factors. We disagree.
Torres first argues that the sentencing panel erred by not finding the existence of statutory mitigators (2)(c) and (2)(g): Section 29-2523(2)(c) considers whether the crime was committed while the offender was under the influence of extreme mental or emotional disturbance; § 29-2523(2)(g) considers whether at the time of the crime, the capacity of the defendant to appreciate the wrongfulness of his or her conduct or
The sentencing panel's determination of the existence or nonexistence of a mitigating circumstance is subject to de novo review by this court.
Torres argues that this mitigator existed due to his methamphetamine use at the time of the murders. Torres directs this court to the testimony of a licensed drug and alcohol counselor, during the sentencing phase, that the use of methamphetamine can induce hyperawareness, paranoia, and breaks with reality. In addition, Packer, who admitted that he was addicted to methamphetamine, testified that the drug caused memory loss, created an altered mental state, caused confusion about what was real and not real, and induced hallucinations and paranoia. Torres further argues that the record shows he was using methamphetamine at the time of the murders.
We question Torres' implicit assumption that voluntary intoxication can form the basis for finding mitigator (2)(c).
Though Torres contends he was using methamphetamine at the time of Hall's and Donohue's murders, the evidence on that point is contradictory. The presentence investigation states that Torres began using methamphetamine in January 2007. He started by smoking the drug, but in February, Torres began using it intravenously, and he did so throughout that month. According to Torres, his girlfriend had been "`shoot[ing] him up'"; when that relationship ended, Torres returned to smoking the drug, apparently one "bowl" every other day. The presentence report indicated that Torres said he continued to do so until his arrest in March, which happened in Texas on March 26. However, the report also indicates that Torres stated that by the time he left Nebraska for Texas on or about March 5, he was not using methamphetamine because "`a big deal was going down and he needed to be clear-headed.'"
Upon our de novo review, we conclude that the sentencing panel did not err in not finding the existence of mitigator (2)(c). For purposes of this mitigator, "extreme" means that the disturbance must be "`"existing in the highest or the greatest possible degree, very great, intense, or most severe."'"
For these same reasons, we conclude that Torres did not produce sufficient evidence of methamphetamine use around the time of the murders which resulted in impairment by intoxication such as would require a finding of the existence of mitigator (2)(g) or a finding of nonstatutory mitigators based upon Torres' alleged methamphetamine use. And we note that the sentencing panel explicitly concluded that even if such impairment were shown, it would be insufficient to outweigh the aggravating factors found by the panel.
Finally, in reviewing a sentence of death, the 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.
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.
In conducting our review, we agree with the sentencing panel that our decisions in State v. Palmer
Having reviewed our capital jurisprudence, and taking note of comparable cases, we are persuaded that the sentences imposed in this case were not greater than those imposed in other cases with the same or similar circumstances, and accordingly, we uphold the sentencing panel's imposition of the death sentence.
Although we find that the jury was improperly instructed regarding some of the evidence admitted under rule 404(2), we find that this error was harmless. We find no merit to any of Torres' other assignments of error relating to his trial.
We also find merit to Torres' argument that the sentencing panel incorrectly considered the mental suffering of one of his victims in determining whether the aggravating circumstance of § 29-2523(1)(d) was in existence. However, the failure of this one finding does not affect the existence of the aggravator. Otherwise, we find no merit to Torres' assignments of error regarding sentencing.
Accordingly, we affirm Torres' convictions and sentences.
AFFIRMED.
WRIGHT, J., not participating.
CONNOLLY, J., concurring in part, and in part dissenting.
I dissent from the majority opinion's conclusion that extrinsic evidence of Torres' kidnapping and robbery of Packer was admissible to show Torres' motive for robbing Hall or killing Hall and Donohue. This conclusion is contrary to the pretrial evidence of Torres' conflicting motives that the court reviewed when it admitted the extrinsic evidence. It is also contrary to the evidence presented at trial about Torres' actual motives for the murders. Moreover, finding the prior kidnapping and robbing of Packer relevant to Torres' motive for robbing Hall or committing the murders required the jurors to engage in classic propensity reasoning—Torres kidnapped and robbed Packer, so he must have robbed and killed Hall and Donohue. So admitting the evidence violated our standard of admissibility under rule 404(2).
Regarding the sentencing phase of Torres' trial, I disagree with the majority opinion's conclusion that the sentencing panel constitutionally applied the exceptional depravity aggravator. The evidence did not support the sentencing panel's conclusion that Torres relished the murders, and the majority opinion fails to analyze this issue. But I conclude that the panel's reliance on this component of the exceptional depravity prong was also harmless error.
In the information, the State alleged two theories of first degree murder: premeditated
This instruction permitted the jurors to consider the prior kidnapping and robbery crimes as proof of Torres' motive for robbing Hall and his motive for murdering Hall and Donohue. I believe that the court erroneously admitted the evidence for both purposes.
The evidence that the court received for admitting the extrinsic acts showed that Torres kidnapped and robbed Packer over a drug deal; Packer had apparently failed to provide methamphetamine that he owed Torres. Packer testified that during the robbery, Torres wanted an ounce of methamphetamine and stated that he would leave after he got it. The record showed that an ounce of methamphetamine cost between $800 and $1,200 and sold for about $2,400 on the street.
Cross and Packer made calls to find drugs but were unsuccessful. They eventually convinced Torres to release Packer to make a court appearance after Packer promised that he would return with methamphetamine for Torres. But Torres first took $800 to $850 in cash from Packer's wallet. He was angry because Packer's failure to produce the methamphetamine had endangered Torres' girlfriend and son, who were in Texas. Torres wanted Packer to get him money and a plane ticket to Texas. But the money that Torres took was consistent with what Torres believed Packer owed him in drugs. And after Padilla and Cross purchased food, all four of these people ate and used drugs together. When Torres' girlfriend later asked Torres about the incident with Packer because she had read about it in the news, he told her that it "was a deal that had gone bad."
This evidence indicated that Torres (1) intended to force Packer to find the drugs he had promised to provide, or intended to take the equivalent in cash; and (2) intended to make Packer pay for Torres' transportation to Texas to make an exchange for other drugs that Packer wanted or to appease a drug source there. The motive for these actions was Torres' anger over Packer's failure to follow through with a drug deal.
In contrast, the court admitted no evidence that showed Torres was angry with Hall or Donohue over a drug deal. Instead, a police report indicated that Torres killed Hall and Donohue to silence them. The police report documented an
At the murder trial, the direct evidence of Torres' motive for the murders was also that he killed Hall and Donohue to silence them. Mattson testified that Torres told him that Donohue owed Torres a lot of money and that Torres went to Hall's house to scare Hall and Donohue. Torres said he tied up Hall when Donohue came home. Torres and Donohue then argued, and Donohue was going to call the police. Torres shot Donohue upstairs. When Torres went back downstairs, Hall was screaming for him to call an ambulance. Torres stated that he did not know what to do and shot Hall.
Cross similarly testified that Torres had admitted to killing Hall and Donohue to keep them from calling the police. He testified that after he and Padilla left Hall's house, he spoke to Torres on the telephone. As stated in the majority opinion, Torres told Cross that "Donohue became angry and tried to break into Cross and Padilla's room. When Torres tried to stop him, Hall came upstairs and mentioned something about calling the police. Cross testified, `[Torres] told me that, you know, can't have cops, and he had to put them to sleep.'"
The police report that the court reviewed for its admissibility ruling showed that Torres' motive for going to Hall's house to commit a robbery was to obtain money or contraband that Torres believed Hall or Donohue had stolen from him. The report also showed that Torres' motive for the murders was to silence Hall and Donohue. So the pretrial evidence of Torres' motive for the robbery and murders was sufficient to alert the court that a conflict existed between Torres' motive for the extrinsic crimes and his motive for the charged crimes.
It is true that a defendant's extrinsic bad act can show his or her motive for the charged crime even if the defendant's motives for the separate acts were not the same.
Even if Torres killed Donohue and Hall to get money and a car to go to Texas, admitting evidence that he previously kidnapped and robbed Packer to prove that motive violated our admissibility standard under rule 404(2). Since 1999, we have required extrinsic acts evidence to be independently relevant.
I agree with the majority opinion that character is a generalized tendency to act in a particular way. But when a person's general tendency continues over time and governs similar but disconnected circumstances, the person's disposition is generally called his or her character trait or propensity.
We have distinguished between logical relevance and independent relevance and have held that even if the State's extrinsic acts evidence is logically relevant to a permissible purpose, it is inadmissible if it lacks independent relevance.
This case offers a textbook example of the distinction that the author makes. As noted, the direct evidence in the murder trial showed that Torres' motive for the murders was to keep Hall and Donohue from calling the police. This is a classic example of motive proof that does not rely on propensity reasoning, or reasoning that the defendant acted in conformity with a bad character trait. Under this proof, the defendant committed the murder in response to the specific possibility
In contrast, the State's reason for presenting Torres' prior act of kidnapping and robbery was to show his motive of needing money and a car. When admitting extrinsic bad acts evidence to show financial stress as a motive for the charged crime, courts must carefully consider whether jurors are likely to view the motive evidence as actually a reflection of character.
Obviously, most people under financial stress are no more likely to commit a robbery or murder than a person without financial stress. So when the court permitted the jurors to consider Torres' prior kidnapping and robbery crimes to show his motive for the murders, a juror was all but certain to infer that he would not have committed the murders except for his specific propensity to commit violent acts to get other people's property when he is
In State v. Sanchez,
I would hold that the court erred in admitting Torres' extrinsic acts to prove this motive. Similarly, the State's proof of Torres' intent based on his extrinsic acts required jurors to conclude that he intended to achieve the goal implied by his motive.
In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.
Here, the record shows that Torres was using Hall's ATM card shortly after Hall was last seen by someone other than Torres or Donohue. Torres' DNA was on the cloth bathrobe belt that was used to gag Hall. Hall and Donohue were killed by gunshot wounds from a small-caliber weapon. Torres had obtained a small-caliber weapon, and the police found ammunition for such a weapon among Torres' possessions in his Houston motel room. Torres burned Hall's car after he got to the Houston area and learned that the police were looking for him. He also bribed witnesses to fabricate exculpatory evidence for him. And most important, Torres told both Mattson and Cross that he had killed Hall and Donohue. Although he gave slightly different versions of the story to these witnesses, the versions were similar in all significant aspects and sufficient to conclude that he had truthfully conveyed his conduct.
Even if Torres could provide a plausible explanation for any single piece of this evidence, when considered together, the evidence of his guilt was overwhelming. Thus, I conclude that there is no reasonable probability that the erroneously admitted evidence materially influenced the jury's verdict of guilt. I therefore concur in the majority's judgment affirming Torres' convictions.
As the majority opinion notes, the sentencing panel issued its order before we issued our decision in State v. Sandoval.
I disagreed with that decision. And I continue to believe that the mental anguish factor for a victim's uncertainty of his ultimate fate could be constitutionally considered when the evidence would support one of two findings: (1) The victim would have been uncertain whether the defendant intended to kill him and had time to agonize over whether the defendant would decide to kill him; or (2) the victim would have been certain of the defendant's intent to
I believe that the majority opinion incorrectly analyzes this issue in two major respects: First, it fails to apply the proper standard for determining whether constitutional error occurred in the sentencing process. Second, it fails to set out and apply the correct standard for determining whether a sentencing error in a capital case is harmless.
As I have previously pointed out,
In other words, if the sentencer could have given aggravating weight to the same facts and circumstances under a different sentencing factor, then no constitutional error occurred.
For example, in Brown, the state court invalidated two of the four eligibility factors that the jury considered in determining whether a death sentence was appropriate. Nonetheless, in addition to these sentencing factors, the California sentencing scheme included a catchall sentencing factor for considering "`[t]he circumstances of the crime of which the defendant was convicted in the present proceeding.'"
Here, the sentencing panel found that the State had proved the mental anguish factor because Torres bound and gagged Hall before killing him. The panel concluded that these circumstances constituted mental suffering because Hall was completely at Torres' mercy and could not know his ultimate fate. It did not find the existence of physical torture. So under Brown, the question is whether the sentencing panel nonetheless gave aggravating weight to the binding and gagging facts under a different sentencing factor. Although the majority opinion does not acknowledge the Brown standard, it concludes that the evidence supported the existence of the narrowing factors for the "helplessness of the victim" and "senselessness of the crime" under the exceptional depravity prong of aggravator (1)(d).
If the sentencing panel had improperly considered—under any aggravating factor—evidence that Torres killed Hall after Torres had bound and gagged him, I do not believe the error could be cured by simply concluding that other narrowing factors under aggravator (1)(d) were supported by sufficient evidence. Under Brown, no constitutional error occurred here, so no harmless error analysis is required. But the Sandoval majority did not follow Brown in determining whether unconstitutional skewing occurred in the weighing process. So the rule stated in Sandoval is the law. Under that rule, constitutional error occurred because the sentencing panel relied on an invalidated factor and harmless error analysis is required:
A sentencing error is not harmless because an appellate court concludes that other aggravating factors are sufficiently supported by the evidence. This court lacks statutory authority to reweigh mitigating and aggravating circumstances on appeal. In doing so, we act "as an unreviewable sentencing panel in violation of Nebraska law."
(Emphasis omitted.)
Instead, in State v. Ryan,
I would agree that there is no reasonable probability that the sentencing panel's consideration of the mental anguish factor under the heinousness prong contributed to Torres' sentences because the panel properly gave aggravating weight to the same evidence under the helpless victim sentencing factor. This is similar to what we concluded in State v. Ryan.
But the statements and analysis in the majority opinion are not consistent with U.S. Supreme Court precedent. The majority opinion would make harmless error turn on whether a death sentence is supported by other sufficient evidence under different narrowing factors, without regard to whether the same evidence supported the existence of those factors. In addition to being inconsistent with the fact that we do not reweigh aggravating and mitigating circumstances, this harmless error standard ignores what Chapman
In addition to finding the existence of the mental anguish factor, the sentencing panel found the existence of four narrowing factors under the exceptional depravity prong of aggravator (1)(d). It found that the following factor existed only as to the murder of Hall: the helplessness of the victim. The panel also found that the following factors existed for the murders of both Hall and Donohue: (1) the senselessness of the crime; (2) the infliction of gratuitous violence on the victims; and (3) the apparent relishing of the murder.
Torres assigns that "[t]he sentencing panel erred in finding the evidence sufficient to prove beyond a reasonable doubt the existence of aggravators 1(a), 1(b), and 1(d)."
But in affirming the sentencing panel's finding of the relishing of the murder factor, the majority opinion ignores these arguments. In giving short shrift to a constitutional argument in a death penalty case, we fail in our duty "to protect the constitutional rights afforded under both the federal and the state Constitutions."
As I explained in my Sandoval concurrence, we adopted our exceptional depravity narrowing factors from the Arizona Supreme Court. And under that court's precedents, relishing the murder refers to the defendant's actions or words, apart from the murder itself, that show the defendant savored or took pleasure in a killing. I provided examples of the type of conduct that proves the existence of that factor under Arizona precedents. In general, the defendant's conduct must show the defendant's debasement or perversion in savoring the killing. And Torres' statements to Cross and Mattson—that he killed the victims to keep them from calling the police—do not fit the bill.
In contrast, the majority does not attempt to compare these facts to analogous facts or to clarify what relishing the murder means for future guidance. But I do not believe that Torres' admissions that he committed the murders can show he relished the murders without some additional statement showing that he took pleasure in killing the victims, as distinguished from his indifference to human life—a definition that would apply to any murder and would fail to preclude arbitrary sentencing.
Similarly, the majority opinion's conclusion that these facts satisfy the relishing of the murder factor trivializes the purpose of having narrowing factors under the exceptional depravity prong. Those factors guide the sentencer in determining whether a murder was totally and senselessly bereft of any regard for human life.
I also conclude that the sentencing panel could not have considered Torres' statements to Cross and Mattson under any other sentencing factor that it found to exist. Under Brown or Sandoval, then, the sentencing panel's giving aggravating weight to these statements was constitutional error. I believe that this error requires us to conclude that there is no reasonable probability that the sentencing
Although evidence that Torres admitted to killing Hall and Donohue was powerful evidence of his guilt, it was minor evidence when considered to determine whether Torres was deserving of the death penalty. In contrast to this evidence, the sentencing panel properly weighed evidence that Torres murdered Hall and Donohue at the same time; that he murdered Hall while he was helpless because Torres had bound and gagged him; and that he murdered Hall and Donohue to keep them from calling the police, i.e., to conceal the robbery and his identity as the perpetrator. In addition, the panel properly weighed Torres' history of serious assaultive and terrorizing activity. This evidence showed that under threat of their death, Torres had kidnapped and robbed Packer and forced Cross and Padilla to follow his orders.
It is true that the sentencing panel did not specify which factors or evidence it considered most significant. But neither did the panel's order state that Torres' statements to Cross and Mattson weighed heavily in its decision. Considering the overwhelming aggravating evidence that the sentencing panel weighed, I believe that we can conclude beyond a reasonable doubt that Torres' statements to Cross and Mattson did not materially influence the sentencing panel. Instead, the panel appears to have been so convinced of its sentencing decision that it overreached in finding that the relishing of the murder factor existed. That was error, but it was harmless error.
In sum, I agree with the conclusions in the majority opinion because I conclude that the errors in the guilt and sentencing phases were harmless. But I do not agree with how the majority opinion has analyzed these issues. I believe that the majority opinion incorrectly holds that extrinsic bad acts are admissible to prove motive even if they are relevant to motive only by reasoning that the defendant acted in conformity with a bad character. As stated, this conclusion will upend our rule 404(2) jurisprudence.
Even more so, I disagree with the majority opinion's holding that a defendant in a capital murder case is not prejudiced by a sentencer's reliance on an invalidated narrowing factor if other evidence supports the sentencer's finding that another factor existed. I believe that this analysis is contrary to the constitutional requirements for finding capital sentencing errors harmless and how we have previously analyzed such errors. I believe this opinion will significantly confuse the way we review capital sentencing procedures.
