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Nebraska State Bar Association NE Law Express for February 8, 2008

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Case Summaries
Death Penalty, Method of Execution , Cruel and Unusual Punishment

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In this groundbreaking opinion, from a record that vividly describes the physiological effects putting a prisoner to death via electrocution invokes, the Court concludes that electrocution will unquestionably inflict intolerable pain unnecessary to cause death in enough executions so as to present a substantial risk that any prisoner will suffer unnecessary and wanton pain in a judicial execution by electrocution. Besides presenting a substantial risk of unnecessary pain, the Court concluded that electrocution is unnecessarily cruel in its purposeless infliction of physical violence and mutilation of the prisoner’s body. Therefore, the Nebraska Supreme Court finds that electrocution as the method of execution is in violation of the Nebraska Constitution’s prohibition against cruel and unusual punishment. Chief Justice Hastings dissents from that portion of the opinion which so finds electrocution is cruel and unusual punishment.

State v. Mata, 275 Neb. 1 (2008)

Supreme Court Headnotes

Judgments:

1.  Appeal and Error. When an appellate court reviews questions of law, it resolves the questions independently of the lower court’s conclusions.

Jurisdiction:

1.  Appeal and Error. If the district court lacked jurisdiction, an appellate court acquires no jurisdiction. ••• When a jurisdictional question does not involve a factual dispute, an appellate court determines the issue as a matter of law.

Pleadings:

1.  Convictions: Sentences: Appeal and Error. A plea in bar is not a proper procedure after a defendant’s conviction has been affirmed on appeal and the cause is remanded only for resentencing.

Courts:

1.  Appeal and Error. When an appellate court remands a cause with specific directions, the lower court has no power to do anything but to obey the mandate.

2.  Sentences: Death Penalty. The Nebraska Supreme Court is charged with the duty to administer and supervise the implementation of the death penalty by appointing the day for execution of the sentence and issuing a death warrant.

Constitutional Law:

1.  Criminal Law:

     a.  Statutes:

          i.   Presumptions: Appeal and Error. When an appellate court reviews challenges to criminal statutes, it presumes that the statutes are constitutional.

          ii.  Proof. The burden to clearly show that a statute is unconstitutional rests upon the challenger.

     b.  Sentences. Mere procedural changes to comply with new constitutional rules do not disadvantage a defendant or impose additional punishment even if the procedures in effect when the defendant committed the offense are later declared unconstitutional.

2.  Homicide:

     a.  Aggravating and Mitigating Circumstances. The U.S. Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), is not a substantive change in Sixth Amendment requirements and did not make aggravating circumstances essential elements of capital murder.

     b.  Sentences: Aggravating and Mitigating Circumstances: Notice: Proof. In a defendant’s resentencing for capital murder necessitated by a new constitutional rule of procedure, the State was not required to file a statutory notice of aggravators in a charging instrument when the defendant had actual notice of the aggravators the State would seek to prove at the resentencing hearing.

3.  Notice. The Sixth Amendment of the U.S. Constitution requires states to give defendants sufficient notice to ensure that they have an opportunity to defend against the charges.

4.  Criminal Law: Sentences. Challenges under the U.S. Supreme Court’s decision in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), are limited to statutory schemes that allow a defendant to completely avoid the punishment that a jury could impose.

5.  Sentences: Death Penalty. The 8th Amendment, made applicable to the states through the 14th Amendment, requires states authorizing the death penalty to adopt procedures that will avoid imposing it in an arbitrary and capricious manner. ••• In death penalty cases, the Eighth Amendment requires that (1) a state rationally narrow those eligible for the death penalty and (2) the sentencer consider the individual circumstances of the defendant and his or her crime.

     a.  Aggravating and Mitigating Circumstances. In determining whether an aggravating circumstance is unconstitutionally vague, a court should consider whether it creates an unacceptable risk of randomness, the mark of an arbitrary and capricious sentencing process.

     b.  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.

     c.  Jurors. In death penalty cases, an eligibility or selection factor is not unconstitutional if it has some common-sense core of meaning that a juror can understand.

6.  Juries: Sentences. The U.S. Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), has not altered the Court’s determination that jury sentencing is not required for Eighth Amendment purposes.

7.  Death Penalty. The death penalty, when properly imposed by a state, does not violate either the 8th or the 14th Amendment to the U.S. Constitution or Neb. Const. art. I, § 9. ••• The ultimate issue, whether electrocution violates the constitutional prohibition against cruel and unusual punishment, presents a question of law. ••• Death by electrocution as provided in Neb. Rev. Stat. § 29-2532 (Reissue 1995) violates the prohibition against cruel and unusual punishment in Neb. Const. art. I, § 9.

     a.  Legislature: The prohibition against cruel and unusual punishment in the federal and state Constitutions is a restraint upon the exercise of legislative power.

          i.   Intent. Whether the Legislature intended to cause pain in selecting a punishment is irrelevant to a constitutional challenge that a statutorily imposed method of punishment violates the prohibition against cruel and unusual punishment.

          ii.  Appeal and Error. The Legislature determines the nature of the penalty imposed, and so long as that determination is consistent with the Constitution, it will not be disturbed by the courts on review.

     b.  Judgments: Evidence: Appeal and Error. In challenges to the constitutionality of a method of execution, the Nebraska Supreme Court determines whether the trial court’s conclusions are supported by substantial evidence.

Appeal and Error.

1.  An argument that does little more than to restate an assignment of error does not support the assignment and an appellate court will not address it.

Jury Instructions.

1.  Whether jury instructions given by a trial court are correct is a question of law.

2.  Sentences: Death Penalty. A juror would clearly understand that the term “apparently relished” in the Supreme Court’s five-factor test under Neb. Rev. Stat. § 29-2523(l)(d) (Cum. Supp. 2002) refers to his or her own perception of the defendant’s conduct.

Sentences:

1.  Death Penalty. In death penalty cases, the key inquiry in examining eligibility and selection factors is whether they are neutral and principled. ••• 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.

2.  Appeal and Error. Under Neb. Rev. Stat. § 29-2521.03 (Reissue 1995), the Supreme Court is required, upon appeal, to determine the propriety of a death sentence by conducting a proportionality review. ••• Proportionality review requires the Supreme Court to compare the aggravating and mitigating circumstances with those present in other cases in which a district court imposed the death penalty to ensure that the sentence imposed is no greater than those imposed in other cases with the same or similar circumstances.

Homicide:

1.  Sentences: Aggravating and Mitigating Circumstances. An aggravating factor must be sufficiently narrow so that it does not apply to everyone convicted of first degree murder.

Jurors:

1.  Sentences: Death Penalty. Jurors are not required to unanimously agree on the means by which a capital defendant manifests exceptional depravity under Neb. Rev. Stat. § 29-2523(l)(d) (Cum. Supp. 2002).

Death Penalty.

1.  Capital punishment must not involve the unnecessary and wanton infliction of pain. ••• A method of execution violates the prohibition against cruel and unusual punishment if there is a substantial foreseeable risk, inherent in the method, that a prisoner will suffer unnecessary pain. ••• A court must evaluate claims that punishment is cruel and unusual in the light of contemporary human knowledge. ••• A penalty of death must accord with the dignity of man, which is the basic concept underlying the prohibition against cruel and unusual punishment. ••• Barbarous punishments include those that mutilate the prisoner’s body even if they do not cause conscious pain. ••• The relevant legal standards in deciding whether electrocution is cruel and unusual punishment are whether the State’s chosen method of execution (1) presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution, (2) violates the evolving standards of decency that mark a mature society, and (3) minimizes physical violence and mutilation of the prisoner’s body. ••• Whether a method of inflicting the death penalty inherently imposes a significant risk of causing pain in an execution is a question of fact. ••• Electrocution will unquestionably inflict intolerable pain unnecessary to cause death in enough executions so as to present a substantial risk that any prisoner will suffer unnecessary and wanton pain in a judicial execution by electrocution.

2.  Words and Phrases. In a method of execution challenge, “wanton” means that the method itself is inherently cruel.

Criminal Law:

1.  Legislature: Sentences. Legislatures are not required to select the least severe penalty possible, so long as the penalty selected is not cruelly inhumane or disproportionate to the crime.

Statutes:

1.  Sentences: Death Penalty. 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.

Date Filed and Case No.: February 8, 2008. No. S-05-1268.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/february/feb8/s05-1268.pdf

Court Appealed From: District Court for Keith County: Robert O. Hippe, Judge.

Attorneys for the Appeal: James R. Mowbray, Jerry L. Soucie, and Jeff Pickens for Raymond Mata, Jr., appellant. Jon Bruning and J. Kirk Brown for State of Nebraska, appellee.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Connolly, J.

Summary: A jury convicted Raymond Mata, Jr., of first degree murder and kidnapping. A three-judge panel sentenced Mata to death for the first degree premeditated murder of 3-year-old Adam Gomez. The presiding judge sentenced him to life imprisonment for kidnapping. Between his sentencing and the Nebraska Supreme Court’s decision in his first direct appeal, the U.S. Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) which required juries to find whether aggravating circumstances exist in death penalty cases. In State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003) (Mata I), the Court affirmed both of Mata’s convictions, but, applying Ring, vacated his death sentence and remanded the cause for resentencing. After a jury found the existence of an aggravating circumstance, a three-judge panel resentenced Mata to death. In this appeal to the Nebraska Supreme Court, Mata argued that the Nebraska Supreme Court and the trial court erred in numerous respects regarding his resentencing. He also argued that electrocution is cruel and unusual punishment prohibited by the U.S. and Nebraska Constitutions. Except for Mata’s claim that electrocution constitutes cruel and unusual punishment, all Mata’s assignments of error presented questions of law which were resolved independently of the lower court’s conclusions.

Did the district court err in failing to find that death by electrocution under Neb. Rev. Stat. § 29-2532 unconstitutionally imposes cruel and unusual punishment? Following its review of the actions of the courts below (and its own decisions) the Court affirmed Mata’s conviction and death sentence; the jury’s finding that his crime was exceptionally depraved; and that the imposition of the death sentence in this case is proportional to that in the same or similar circumstances. The Court then paused in its opinion, to clarify “what this case is not about.” Here, Mata did not argue that the death penalty in any form, violates the U.S. and Nebraska Constitutions. “So the issue before us is not whether Mata will be executed, but only whether the current statutory method of execution is constitutional.”

Is electrocution prohibited by the Nebraska Constitution’s proscription against inflicting cruel and unusual punishment? While the Court reminded that it has held that electrocution does not constitute cruel and unusual punishment within the meaning of the U.S. or Nebraska Constitution, they noted that they have not previously had the opportunity to review a factual record showing electrocution’s physiological effects on a prisoner. Instead, they had relied on U.S. Supreme Court decisions which contained factual assumptions that some of that Court’s more recent cases had called into question. The Court found that Mata’s constitutional challenge to electrocution was not procedurally barred and the parties presented it with a full evidentiary record. They concluded that evolving standards of decency are applicable to method-of-execution challenges. As such, those standards required that they now review the evidence presented in this case in the light of modern scientific knowledge. “Obviously, we cannot, under the U.S. Constitution, declare that electrocution violates its cruel and unusual punishment provision because the U.S. Supreme Court has held otherwise. And the Nebraska Court has stated that the Nebraska Constitution’s cruel and unusual punishment provision does not require more than does the Eighth Amendment to the U.S. Constitution” they wrote. “But as we will explain, we now believe this issue should be resolved by this court.” Like the Nebraska Court, the U.S. Supreme Court has never reviewed objective evidence regarding electrocution’s constitutionality. Instead, the U.S. Supreme Court based its holdings on state courts’ factual assumptions, which, in turn, relied on untested science from 1890. Because the Nebraska Court concluded that they could no longer rely on those factual assumptions and because no other state still imposes electrocution as its sole method of execution, they wrote that they would decide the issue under the Nebraska Constitution. Thereafter, the opinion delved into early U.S. Supreme Court decisions on electrocution. “Our review of these early cases illustrates that the U.S. Supreme Court’s case law on electrocution relies on unexamined factual assumptions about an electric current’s physiological effects on a human.” Explaining that it is their duty to protect the constitutional rights afforded under both the federal and state Constitutions they added:

“We conclude that we can no longer rely on the factual assumptions implicit in U.S. Supreme Court precedent pertaining to the constitutionality of execution by electrocution. Because we are now presented with evidence of a nature and quality that the Supreme Court never considered when it held electrocution was not cruel and unusual punishment, we cannot rationally defer to federal precedent.”

After reviewing the evidence, the Court concluded that the relevant legal standards in deciding whether electrocution is cruel and unusual punishment are whether the State’s cho0sen method of execution (1) presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution, (2) violates the evolving standards of decency that mark a mature society, and (3) minimizes physical violence and mutilation of the prisoner’s body.

Does death by electrocution impose a constitutionally invalid cruel and unusual punishment? Whether a method of inflicting the death penalty inherently imposes a significant risk of causing pain in an execution is a question of fact. The ultimate issue, whether electrocution violates the constitutional prohibition against cruel and unusual punishment, presents a question of law. Given the evidence and the district court’s finding thereon, the Court concluded that electrocution will unquestionably inflict intolerable pain unnecessary to cause death in enough executions so as to present a substantial risk that any prisoner will suffer unnecessary and wanton pain in a judicial execution by electrocution. Besides presenting a substantial risk of unnecessary pain, the Court concluded that electrocution is unnecessarily cruel in its purposeless infliction of physical violence and mutilation of the prisoner’s body. “Electrocution’s proven history of burning and charring bodies is inconsistent with both the concepts of evolving standards of decency and the dignity of man. Other states have recognized that early assumptions about an instantaneous and painless death were simply incorrect and that there are more humane methods of carrying out the death penalty” they wrote. They concluded that death by electrocution as provided in § 29-2532 violates the prohibition against cruel and unusual punishment in Neb. Const. art. I, § 9.

Having concluded that electrocution is cruel and unusual punishment, how was the Court to dispose of this appeal? The fact remained that although the Nebraska statutes currently provide no constitutionally acceptable means of executing Mata, he was properly convicted of first degree murder and sentenced to death in accord with Nebraska law. As the Court had already affirmed his conviction, his sentence of death, although it cannot be implemented under current law, also remained valid. 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 they affirmed the district court’s judgment. On direct appeal in a capital case, the Court’s responsibility extends beyond the validity of the conviction and sentence. As the State cannot carry out Mata’s sentence without a constitutionally acceptable method of execution the Court declined to appoint a day certain for the execution of the sentence and stayed Mata’s execution. When the State moves that an execution date be set, in addition to the other requirements for such a motion, the State should allege, and be prepared to demonstrate, that a constitutionally acceptable method of carrying out Mata’s sentence is available.

Conclusion: Mata’s sentence of death was affirmed. But while the Legislature may vote to have the death penalty, the Court said it must not create one that offends constitutional rights. “We recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer. But it is the hallmark of a civilized society that we punish cruelty without practicing it. Condemned prisoners must not be tortured to death, regardless of their crimes.” They said the evidence clearly proves that unconsciousness and death are not instantaneous for many condemned prisoners and that electrocution inflicts intense pain and agonizing suffering. Therefore, electrocution as a method of execution is cruel and unusual punishment in violation of the Nebraska Constitution, article I, § 9. And, without a constitutionally acceptable method of execution, Mata’s sentence of death is stayed. SENTENCE AFFIRMED, AND EXECUTION STAYED.

Heavican, C.J., CONCURRING IN PART, AND IN PART DISSENTING. Although the Chief Justice agreed with the majority’s analysis affirming the sentence, he dissented from the majority’s conclusion that electrocution “a means of execution used in America for well over a century—is no longer constitutional.” He therefore wrote separately to “not only voice my dissent from that conclusion, but also to express sincere reservations with several aspects of the analysis used to generate it.” The Chief Justice wrote that his concern was that the Court has long held that the Nebraska constitution’s cruel-and-unusual-punishment provision is no more stringent than is the Eighth Amendment to the federal Constitution. “Thus, if the Nebraska Constitution does not require anything more than the federal Constitution regarding cruel and unusual punishment, and the U.S. Supreme Court has indicated that electrocution is not cruel and unusual under the federal Constitution, I cannot see how electrocution violates the Nebraska Constitution.”

Because the Chief Justice sincerely believed the precedent laid out in his dissent would have adverse consequences in future cases, he respectfully dissented from the portion of the majority opinion that finds electrocution to be unconstitutional.