State v. Palmer

399 N.W.2d 706, 224 Neb. 282, 1986 Neb. LEXIS 1178

• Court: Nebraska Supreme Court
• Decided: December 29, 1986
• Docket: 84-733
• Status: Published

Opinions

Per Curiam.

The defendant, Charles Jess Palmer, appeals from a jury verdict finding him guilty of felony murder under Neb. Rev. Stat. § 28-303(2) (Reissue 1985), and from a sentence imposed by a three-judge court ordering Palmer to be executed for the crime in accordance with the provisions of Neb. Rev. Stat. §§ 29-2521 et seq. (Reissue 1985). This case has twice before been to this court. See, State v. Palmer, 210 Neb. 206, 313 N.W.2d 648 (1981) (Palmer I); State v. Palmer, 215 Neb. 273, 338 N.W.2d 281 (1983) (Palmer II). The relevant facts are as follows.

From August of 1977 to the time of the murder, the defendant and his wife lived and worked near Guide Rock, Nebraska. Their son, Jess, was born July 4, 1978. The victim, Eugene Zimmerman, operated a coin shop in his home in Grand Island, Nebraska.

The Palmers’ first contact with the victim occurred in October of 1978. Mrs. Palmer telephoned Zimmerman and arranged a meeting. The Palmers intended to offer coins and silver objects for sale. The Palmers, with their baby, drove to the Zimmerman house, and the defendant waited in the truck while Mrs. Palmer negotiated the sale. In late December of 1978 Mrs. Palmer called Zimmerman and offered to sell additional coins and silver. On this occasion the defendant and the baby accompanied Mrs. Palmer into the Zimmerman residence. In late February of 1979 all three again went into the residence while Mrs. Palmer sold Zimmerman some silver baby spoons. When she asked him if he would be interested in buying two or three gold wedding bands, Zimmerman responded that he would. On March 5, 1979, Mrs. Palmer returned to sell Zimmerman the wedding rings. The defendant accompanied her into the house and walked around the office and the parlor adjacent to the business area while Mrs. Palmer conducted business. Mrs. Palmer asked Zimmerman if he would be interested in buying two antique rings. He replied that he would look at them, and arranged a meeting for the next afternoon.

On March 6, 1979, the day of the murder, the defendant, Mrs. Palmer, and their baby arrived at the Zimmerman house between 3 and 3:30 p.m. Zimmerman examined the rings and showed Mrs. Palmer how he could tell that her stones were imitation rather than real. He told her he would buy the settings from her if a test proved they were gold. Zimmerman rose from his desk, turned around, and picked a jar of solution from the cabinet. According to Mrs. Palmer, the defendant suddenly lunged at the victim while his back was turned and struck the victim’s face. Zimmerman’s glasses were dislodged. Defendant and Zimmerman struggled, Zimmerman was thrown to the floor, and defendant demanded money from him. The evidence shows that, at the time, defendant was 40 years old, 6 feet 7 inches tall, and weighed approximately 245 pounds; the victim was 59 years old, 5 feet 11 inches tall, and weighed approximately 135 pounds. Zimmerman’s face was bleeding. The defendant bound Zimmerman’s hands, lifted him to his feet, and forced him up the stairs. Mrs. Palmer testified that the defendant remained upstairs alone with the victim for 15 minutes before she was to come upstairs. Upon entering the bedroom, she saw Zimmerman lying on a bed, his hands and feet tied. The defendant proceeded to search the upstairs. He told Mrs. Palmer to watch Zimmerman. The defendant then went downstairs and remained there for 20 minutes. During this time, the victim complained to Mrs. Palmer of stomach pain, and asked, “Why are you doing this to me?” Zimmerman then asked Mrs. Palmer to get him some medicine from his bathroom, which she did.

The defendant went back upstairs, wearing gloves, and sent Mrs. Palmer downstairs. She waited downstairs for him for 15 minutes, and testified that during this time she heard noises upstairs: “There was a — a lot of thumping noises. Thump, thump, thump, thump, and there was some kind of a — a guttural noise. I kept hearing a — a low, monotonous, almost a chant-like sound. A very deep and very throaty guttural type over and over, again.” When the defendant returned downstairs around 4:30 p.m., the defendant, Mrs. Palmer, and the baby left, this being approximately 1 hour after they had arrived at the Zimmerman residence.

On March 7, 1979, the Palmers rented a storage unit in Hastings, Nebraska. After packing and making arrangements to have their employer’s animals cared for, they left for Austin, Texas, approximately 2 weeks after the incident. Mrs. Palmer testified that the items stolen from the coin shop were placed in a diaper bag and accompanied them to Austin.

In Austin the defendant, using the name J.R. Kirkpatrick, contacted a coin dealer named Jesse Garza and sold him coins and jewelry. A few days later, Garza read a trade journal which covered the Zimmerman robbery and murder and cataloged the stolen items. Garza recognized that several of the items he bought from the defendant were on the list, and called the police. When the defendant contacted Garza again, Garza arranged to meet him at an airport restaurant, where the police arrested defendant on March 27, 1979.

The victim’s wife, Monica Zimmerman, returned home around 5 p.m. on March 6, 1979, and discovered that the coin shop had been looted. She called the police. The victim’s body was found upstairs, with an electrical cord tied tightly around the neck, and coins, jewelry, money, and other valuables were discovered to be missing. A pathologist testified that the victim had a bruise below his left collarbone, a bruise over the right cheekbone, a bruised left eyebrow and eyelid, a scratch on the left side of his nose and under his left jaw, and a cut on his left temporal area. Those injuries preceded death. Mr. Zimmerman’s windpipe and voice box were broken and evidenced bleeding. The time of death was fixed at 4:30; the cause of death was strangulation. In explaining the presence of the cuts, bruises, and abrasions, the pathologist testified that there were two possibilities: “One, if the head were thrown several times against an unyielding object or that the head received a blow in a number of different areas from one or more blunt objects.”

The sentencing panel found that no mitigating circumstance existed to affect defendant’s sentence, but found beyond a reasonable doubt that two statutory aggravating circumstances existed, namely, (1) that the murder was committed in an apparent effort to conceal defendant’s identity as the perpetrator of the robbery, and (2) that while Zimmerman’s murder was not “especially heinous, atrocious, cruel,” it “manifested exceptional depravity by ordinary standards of morality and intelligence.” § 29-2523(l)(b) and„(d).

In each of the three trials, the State introduced circumstantial evidence tending to implicate defendant in the crime. In the first trial three witnesses who had undergone hypnosis were allowed to testify, leading this court to reverse and remand. See Palmer I. In the second and third trials the deceased’s widow, Monica Zimmerman, was permitted to testify, although the trial judge limited the subject matter of her testimony. Additionally, in the second and third trials Cherie Palmer was allowed to testify against her husband. It was her testimony in the second trial which we found to be contrary to the provisions of Neb. Rev. Stat. § 27-505 (Reissue 1979), and we accordingly set aside the conviction and remanded the cause for a third trial.

After our opinion in Palmer II was released, but before the third trial in this case was held, the Nebraska Legislature amended § 27-505, eliminating the provision which precluded one spouse from testifying against another in a criminal case except in limited circumstances not applicable to the instant case. See 1984 Neb. Laws, L.B. 696.

Defendant’s counsel have filed a brief in this court alleging that some 27 errors were committed during the third trial, any one of which would entitle defendant to an order of this court reversing the decision and setting aside the sentence. Additionally, defendant has filed a pro se brief in which he has raised five specific assignments of error, all of which are essentially covered by his counsel’s brief. These 32 assignments of error can be rephrased and reduced to 8, without in any way ignoring any issues raised by either defendant’s counsel or defendant himself. These rephrased assignments are as follows: (1) That the evidence adduced at the trial during its various stages is insufficient to support the verdict. (2) That the action of the Legislature in amending § 27-505 with the passage of L.B. 696 is prohibited by the ex post facto clauses of both the U.S. and Nebraska Constitutions and that the trial court erred in permitting Cherie Palmer to testify against defendant. (3) That requiring defendant to stand trial a third time constituted placing him in double jeopardy, in violation of his federal constitutional rights. (4) That the district court erred in permitting Monica Zimmerman to testify regarding matters covered during her pretrial hypnotic interview. (5) That the district court erred in overruling defendant’s motion to suppress the use of pretrial and in-court identifications of him. (6) That the district court erred in overruling defendant’s motion to dismiss on the ground that he had been deprived of his right to a speedy trial under both Nebraska statute and the sixth amendment to the U.S. Constitution. (7) That the district court erred in overruling defendant’s motion to suppress evidence obtained from him at the time of his arrest in Austin, Texas. (8) That the district court erred in sentencing defendant to death. We shall discuss these issues in the order listed above.

(1) Sufficiency of the Evidence.

Defendant’s first argument is that taking the evidence as a whole, it was insufficient to support the verdict finding him guilty of felony murder. When the evidence adduced at the trial is considered, the first assignment must be quickly overruled. To begin with, a person charged in a criminal case may be convicted on the basis of circumstantial evidence. See State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981). Furthermore, in determining the sufficiency of the evidence to sustain a conviction in a criminal prosecution, it is not the province of the Nebraska Supreme Court to resolve conflicts in the evidence, pass upon the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence, as such matters are for the jury. The verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. See, State v. Wilkening, 222 Neb. 107, 382 N.W.2d 340 (1986); State v. Kakela, 218 Neb. 843, 359 N.W.2d 786 (1984); State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984). The evidence, when viewed in light of these rules, is more than sufficient to justify the case’s being submitted to the jury and more than sufficient for the jury to find the defendant guilty of felony murder. Therefore, unless some other error is found, the decision of the jury finding defendant guilty of felony murder must be affirmed.

(2) Amendment of § 27-505 and Cherie Palmer’s testimony.

As we have already noted, in Palmer II this court held that § 27-505, as it was then constituted, prohibited Cherie Palmer from testifying against her husband. At that time § 27-505 provided as follows:

(1) Neither husband nor wife can be examined in any case as to any confidential communication made by one to the other while married, nor shall they after the marriage relation ceases to [sic] be permitted to reveal in testimony any such communication while the marriage subsisted except as otherwise provided by law. This privilege may be waived only with the consent of both spouses. After the death of one, it may be waived by the survivor.

(2) During the existence of the marriage, a husband and wife can in no criminal case be a witness against the other. This privilege may be waived only with the consent of both spouses.

(3) These privileges may not be claimed:

(a) In any criminal case where the crime charged is rape, adultery, bigamy, incest....

Following our decision in Palmer II and before the subject trial, the Nebraska Legislature amended § 27-505, and in particular amended subsection (3) to provide as follows: “These privileges may not be claimed: (a) In any criminal case where the crime charged is a crime of violence, bigamy, incest.. . .” See § 27-505 (Reissue 1985). While defendant raises some issue as to the meaning of the amendment (a matter which we will later discuss), it nevertheless appears fairly clear that unless by adopting L.B. 696 and amending § 27-505, the Nebraska Legislature has adopted an ex post facto law and thereby violated defendant’s constitutional rights, Mrs. Palmer was properly permitted to testify.

Both U.S. Const, art. I, § 10, and Neb. Const, art. I, § 16, clearly provide that no ex post facto law may be passed. What is not so clear, however, is what constitutes an ex post facto law.

The Latin phrase “ex post facto” means literally “a thing done afterward.” Webster’s Third New International Dictionary, Unabridged 802 (1981). In a general sense an ex post facto law is one which “renders an act punishable in the manner in which it was not punishable when it was committed.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138, 3 L. Ed. 162 (1810). The traditional justification for prohibiting retroactive laws is that such laws “are contrary to the first principles of the social compact, and to every principle of sound legislation.” The Federalist No. 44, at 349 (J. Madison) (J. Hamilton ed. 1882). At first blush this would seem to prohibit anything from being done after an act is committed.

However, an examination of the history as it relates to the doctrine of ex post facto and the cases which have been decided from the earliest of times leads to the conclusion that not all retroactive legislation is in violation of the prohibition against ex post facto laws. The clause, as it has been interpreted, applies principally, if not exclusively, to criminal laws or laws impacting criminal prosecutions. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798). The most frequently stated rendition of the ex post facto prohibition is that a legislature may not enact any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed . . . .” Cummings v. The State of Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867). Approximately a decade after the ratification of the Constitution, the U.S. Supreme Court was called upon to construe the ex post facto clause. See Calder v. Bull, supra. In doing so the U.S. Supreme Court held that a Connecticut resolution setting aside the decree of the probate court and granting a right of appeal where one had not previously existed did not offend the ex post facto clause. This ruling was somewhat modified by a later decision in Kring v. Missouri, 107 U.S. 221, 2 S. Ct. 443, 27 L. Ed. 506 (1883). The case most relevant, however, to the instant case is the case of Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884). Hopt was charged with first degree murder. At the time the crime was committed, the Utah criminal procedure act prohibited the admission of testimony of convicted felons. Prior to trial, the Utah Legislature repealed that provision, thereby removing any obstacle to the competency of convicted felons. At trial Emerson, a previously convicted accomplice, was allowed to testify. Following conviction, an appeal was ultimately taken to the U.S. Supreme Court. The Court held that the repeal of the felon competency rule after the commission of the offense but before trial was not an ex post facto law.

After discussing Kring, supra, the Court noted that Kring had been deprived of a substantial right possessed by him at the time the offense was committed. The Court went on to distinguish Hopt’s situation, noting:

But there are no such features in the case before us. Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.

The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed, might, in respect of that offence, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt, but — leaving untouched the nature of the crime and the amount or degree of proof essential to conviction — only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offence charged.

Hopt v. Utah, supra at 589-90.

Similarly, in the instant case nothing done by the Legislature in amending § 27-505 created any criminal act, nor altered the standard of proof necessary for conviction, nor altered the punishment prescribed for committing the crime. The decision in Hopt, supra, is wholly consistent with our holdings in this jurisdiction to the effect that no one has a vested right in a procedure and that procedural matters can be changed at any time before trial and are binding on the defendant. See, State v. Shiffbauer, 197 Neb. 805, 251 N.W.2d 359 (1977); Durousseau v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566 (1975).

The holding in Hopt, supra, was further affirmed by the U.S. Supreme Court decision in Thompson v. Missouri, 171 U.S. 380, 18 S. Ct. 922, 43 L. Ed. 204 (1898). Thompson was a case very similar to the case at bar. Thompson was charged with first degree murder. After conviction the Missouri Supreme Court reversed, holding the admission of certain writing samples for comparative purposes to be prejudicial error. Prior to his retrial, the Missouri Legislature enacted a statute allowing admission of such evidence. The same samples were then admitted in the second trial. Thompson was convicted, and the Missouri Supreme Court upheld the conviction.

On appeal the U.S. Supreme Court held that the subsequent legislative change of the rules of evidence regarding writing samples for comparative purposes did not violate the ex post facto prohibition of the federal Constitution. The Court admitted that a number of cases containing language supporting Thompson’s “ex post facto” argument could be found, but, “[a]pplying the principles announced in former cases — without attaching undue weight to general expressions in them that go beyond the questions necessary to be determined,” 171 U.S. at 386, the U.S. Supreme Court held that the rights abrogated were not substantial enough to render retroactive application of the statute unconstitutional. In doing so the Court said at 387:

If persons excluded, upon grounds of public policy, at the time of the commission of an offence, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offence was committed.

Four states have previously considered whether a change in the marital privilege statutes constitutes an ex post facto law, and in each instance determined that it does not. See, Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977); State v. Clevenger, 69 Wash. 2d 136, 417 P.2d 626 (1966); Ritchey v. State, 407 S.W.2d 506 (Tex. Crim. 1966); Wester v. The State, 142 Ala. 56, 38 So. 1010 (1905).

As part of his “ex post facto” argument, defendant raises two other related issues. He maintains that, in any event, L.B. 696 is unconstitutionally vague because there is no definition of “crime of violence.” Furthermore, he argues that the exceptions adopted by L.B. 696 apply only in cases where the spouse or child is the other party.

The vagueness argument is controlled by the rule that in the absence of anything indicating the contrary, statutory language is to be given its plain and ordinary meaning. State v. Carlson, 223 Neb. 874, 394 N.W.2d 669 (1986). By that standard a “crime” is an act or omission for which one is subject to punishment by public authority. See Webster’s Third New International Dictionary, Unabridged 536 (1981). By that same standard “violence” is the exertion of physical force so as to injure or abuse. Id. at 2554. Thus, “crime of violence” is an act which injures or abuses through the use of physical force and which subjects the actor to punishment by public authority. This court has said that robbery is a crime of violence. Draper v. Sigler, 177 Neb. 726, 131 N.W.2d 131 (1964). Certainly, then, murder is a crime of violence. Com. v. Ferrer, 283 Pa. Super. 21, 423 A.2d 423 (1980); People v. Manns, 12 Mich. App. 543, 163 N.W.2d 232 (1968). Accordingly, L.B. 696 is not vague.

Defendant’s argument regarding the application of L.B. 696 is that the crimes described in § 27-505 apply only to cases where one spouse commits a crime against the other spouse. Therefore, according to him, L.B. 696 applies only where one spouse commits a crime of violence against the other spouse. We do not read either the history of the amendment nor the language itself to so limit § 27-505 as amended by L.B. 696. The clear meaning of the statute is that the privilege may not be claimed where the crime charged is “a crime of violence, bigamy, incest, or any crime committed by one against the person or property of the other.” (Emphasis supplied.) Defendant’s argument flies in the face of the clear meaning of the statute. If defendant’s argument were correct, there would have been no need for the enumeration of not only crimes of violence but those of bigamy and incest as well, crimes which cannot be committed except by one spouse against the other or upon some other member of the family. Nothing within L.B. 696, as it amended § 27-505, limits crimes of violence to acts committed by one spouse against the other spouse. The words are clear and require no interpretation. We have consistently held that where the language of a statute is plain and unambiguous, no interpretation is needed, and a court is without authority to change such language. See Palmer II. See, also, Kellogg Company v. Herrington, 216 Neb. 138, 343 N.W.2d 326 (1984); State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981). L.B. 696, as it amended § 27-505, is clear and unambiguous and applies to all crimes of violence, regardless of who the victim may be. This assignment of error is therefore without merit and must be overruled.

(3) Double Jeopardy.

Defendant next argues, both through his attorney and in his pro se brief, that the State’s decision to try him a third time violated the double jeopardy clauses of both the federal and Nebraska Constitutions. Although the thrust of the arguments is not readily apparent, it appears to follow two separate tracks. One argument is based upon the notion that the evidence adduced at the earlier trial was insufficient to submit the case to the jury, and, therefore, a bar to further prosecution. The second argument, raised by defendant himself, appears to be to the effect that there was both prosecutorial and judicial misconduct which compelled defendant to seek a new trial, and, therefore, this bars the State from retrying him. Neither contention is valid.

In his first argument regarding insufficiency of the evidence, defendant relies upon the U.S. Supreme Court opinion in Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). In Burks the U.S. Supreme Court held that an appellate finding of insufficient evidence to convict is tantamount to an acquittal and, therefore, that the double jeopardy clause precludes a second trial once the reviewing court has found the evidence legally insufficient. In reaching that conclusion, the Court set out its rationale precisely, saying at 16:

Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

It is clear beyond question, however, that the decision in Burks does not give any support to the argument raised by defendant in the instant case. The Court specifically addressed that issue and distinguished a reversal based upon trial error from a verdict of acquittal based upon an erroneous decision.

In doing so the U.S. Supreme Court in Burks, supra, said at 15:

Various rationales have been advanced to support the policy of allowing retrial to correct trial error, but in our view the most reasonable justification is that advanced by Tateo, supra, at 466: “It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” See Wilson, supra, at 343-344, n. 11; Wade v Hunter, 336 U.S. 684, 688-689 (1949). In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.

See, also, State v. Bostwick, 222 Neb. 631, 385 N.W.2d 906 (1986).

In view of the fact that we have already held that there was sufficient circumstantial evidence to submit the case to the jury and sufficient circumstantial evidence from which the jury could find defendant guilty of felony murder, our reversal of Palmer II because of the trial court’s error in permitting Mrs. Palmer to testify does not constitute double jeopardy so as to preclude the State from prosecuting defendant in the instant case.

Nor does defendant’s contention that there was prosecutorial or judicial misconduct of such a nature as to bar a retrial have merit. The record in all three cases is devoid of any evidence to establish either prosecutorial or judicial misconduct. That a county attorney vigorously prosecutes one accused of a crime does not constitute prosecutorial misconduct. Nor does the fact that a trial court permits the introduction of evidence which may later be excluded because of a difficult or complicated rule of law constitute judicial misconduct. The argument raised by defendant is wholly unsupported by any evidence. Defendant was convicted in Palmer II. That conviction was reversed because of a procedural error considered to be prejudicial. Absent that procedural error, there was sufficient circumstantial evidence to submit the case to the jury and to convict him. Therefore, defendant was never placed in double jeopardy, and his assignment of error in that regard must be overruled.

(4) Matters Covered During Monica Zimmerman’s Pretrial Hypnotic Interview.

The basis of defendant’s assignment of error regarding the testimony of Monica Zimmerman is based almost, totally upon our holding in Palmer I. However, Palmer I must be read in light of our subsequent decision in State v. Patterson, 213 Neb. 686, 331 N.W.2d 500 (1983), wherein we explained our holding in Palmer I and set out the rule as it was thereafter to be applied in Nebraska. Were we to subscribe to the argument made by defendant herein as to what he believes we said in Palmer I, a rule of ridiculous proportion would be reached. What we were seeking in Palmer I, as more clearly set out in State v. Patterson, supra, was to prohibit the introduction of testimony which came about for the first time after hypnosis. As we indicated in Palmer I, our concern was preventing evidence which was hypnotically induced rather than hypnotically recalled. Where, however, the evidence is clear that the witness knew about the matters before being subjected to hypnosis, we can perceive of no rule which should preclude the witness from thereafter being permitted to testify. The district court was extremely careful in limiting Monica Zimmerman’s testimony in the subject trial to those matters for which there was sufficient evidence to establish that she knew of the matters and had related them to another before being subjected to hypnosis. The rule in Nebraska as set out in State v. Patterson, supra, is that a witness will not be rendered incompetent merely because he or she was hypnotized during the investigatory phase of the case; rather, the witness will be permitted to testify with regard to those matters which he or she was able to recall and relate prior to hypnosis, provided that there is sufficient evidence to satisfy the court that the evidence was known and related prior to hypnosis.

Nowhere in Palmer I can it be found that we precluded Monica Zimmerman from testifying. In fact, we ordered reversal with instructions to the district court to determine what of her testimony was properly admissible. In making that determination the district court was required to consider our refinement of the rule as set out in State v. Patterson, supra. See, also, State v. Shiffbauer, 197 Neb. 805, 251 N.W.2d 359 (1977). There was no error committed by the district court in permitting Monica Zimmerman to testify.

(5) Pretrial and In-court Identifications of Defendant.

Defendant argues that the in-court identification of him was tainted by a photographic lineup which took place at the Austin, Texas, police department following his arrest and prior to his trial in Palmer I.

The record discloses that following a call from the Austin Police Department informing the Grand Island Police Department that articles stolen from the Zimmerman residence had been confiscated and a suspect arrested, a number of Nebraska investigators and Monica Zimmerman flew to Austin, Texas. Upon arriving in Austin the officer in charge of the Nebraska contingent determined that because of defendant’s unusual height it would be inappropriate to have Monica Zimmerman view him in a traditional lineup. In a purported effort to alleviate the height discrepancy between defendant and the officers chosen to fill the lineup group, the officers decided to individually photograph defendant and the four officers. All five were photographed standing in front of a white wall and positioned next to a doorframe. When shown the five photographs, Monica Zimmerman immediately identified defendant as being the customer whom she had reported to the police as looking suspicious.

Defendant now argues that the identification procedure used was unduly suggestive in that the relative heights of the subjects were readily determinable by reference to the strategically placed doorframe visible in each photograph. Defendant then argues that under the U.S. Supreme Court decision in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), and our decision in State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974), this allegedly unduly suggestive procedure, coupled with the subsequent in-court identification made by Monica Zimmerman, abridged defendant’s right to due process under both the U.S. and Nebraska Constitutions. We believe that the contention is without merit.

In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), the U.S. Supreme Court addressed the issue of a photographic lineup. Approving the use of photographs, the Court said at 384:

[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Following its decision in Simmons v. United States, supra, the U.S. Supreme Court decided Neil v. Biggers, supra. Neil involved an eyewitness identification at trial following a police station showup of the defendant. After discussing its past due process cases, the U.S. Supreme Court determined that unnecessary suggestiveness alone does not require an exclusion of identification evidence. The Court noted that the showup could have been better conducted but found that the “central question” was “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Neil, supra at 199. The Court then stated at 199-200:

As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

An examination of the photographs in this case fails to support defendant’s contention that the presence of the doorframe was unduly suggestive and caused Monica Zimmerman to select defendant. In the first instance many courts have held that a suspect’s distinctive appearance in a photographic display does not necessarily render the procedure suggestive. See, United States v. Mefford, 658 F.2d 588 (8th Cir. 1981) (suspect was the only man in the lineup who was within age range previously described by witnesses); United States v. Smith, 602 F.2d 834 (8th Cir. 1979) (suspect wearing blue overalls was only person matching description of robber); United States v. Bostic, 360 F. Supp. 1300 (E.D. Pa. 1973), aff’d mem. 491 F.2d 751 (3d Cir. 1973) (only suspect’s photograph showed scar on forehead). It is impossible from viewing the photographs to determine how far from the wall and doorjamb each subject is standing, and, therefore, one viewing the photographs could not necessarily determine the height of the subject. Furthermore, there was testimony from one of the officers present during the photographic lineup that when Monica Zimmerman viewed the photographs, it took her only “one to two” seconds to eliminate from the array all of the photographs but that of the defendant. The officer’s testimony was corroborated by a member of the Nebraska State Patrol who was also present. An examination of the totality of the circumstances makes it abundantly clear that the photographic array was not unduly suggestive. This assignment of error is therefore overruled.

(6) Right to a Speedy Trial.

Defendant’s argument that he was denied a speedy trial under either Nebraska statute or the sixth amendment to the federal Constitution is likewise without merit. The mandate in Palmer II was received by the district court on October 28, 1983. Voir dire for the subject trial began on March 5, 1984. In the time between the filing of the mandate and the beginning of the trial, more than 20 motions, the bulk of which went to evidentiary matters, were filed by defendant’s attorneys or by defendant himself. Some of these motions were submitted on arguments alone, some were supported by affidavits, and some required full-blown evidentiary hearings. Even without tolling the period on account of defendant’s pretrial motions, it is clear that the time required by Neb. Rev. Stat. § 29-1207 (Reissue 1985) had not expired. Section 29-1207(3) provides: “If such defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, such period shall commence to run from the date of the mistrial, order granting a new trial, or the mandate on remand.” Trial must then be had within 6 months from that date.

Section 29-1207(4)(a) excludes from the computation of the 6-month period “the time from filing until final disposition of pretrial motions of the defendant...” The subject trial began 17 weeks after the return of the mandate. If one disregards the time during which the pretrial motions were pending, there was only a period of approximately 3 days between the time that the pretrial motions were disposed of and the voir dire of the jury began. To therefore suggest that there was any violation of Nebraska’s speedy trial act is wholly frivolous.

Defendant, however, maintains that under the sixth amendment to the U.S. Constitution he was not granted a speedy trial. In so arguing he relies primarily on the U.S. Supreme Court decision in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). In that case the U.S. Supreme Court set out the balancing test it thought was appropriate for the resolution of speedy trial issues under the U.S. Constitution. After noting that the speedy trial right “is genetically different from any of the other rights enshrined in the Constitution for the protection of the accused,” id. at 519, the Court refused to define the nature of the right by reference to an arbitrary time period as, for instance, the 6-month period set out in § 29-1207. Instead, the Court stated that “[t]he approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.” Id. at 530. The Court then set out four factors to be considered in this balancing process: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. Explaining this mechanism, the U.S. Supreme Court expounded on the first factor, saying:

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.

Id. at 530-31. In our view a delay of 17 weeks from the return of the mandate to a trial does not constitute an unreasonable delay sufficient to cause the other factors to be triggered. We are not, therefore, required to examine any of the factors, finding that a delay of 17 weeks from return of mandate to trial is not unconstitutionally unreasonable. Defendant’s assignment regarding lack of a speedy trial is without merit and is overruled.

(7) Motion to Suppress Evidence Obtained From Defendant at the Time of His Arrest in Austin, Texas.

Defendant next challenges the propriety of his arrest in Texas and the seizure of property allegedly stolen from Zimmerman at the time of his death. The evidence presented in the subject trial is identical to that presented in Palmer I. That issue was raised in Palmer I, and in that regard we said at 212, 313 N.W.2d at 652:

In the case at bar the evidence establishes, and the defendant does not contest, that the officers had probable cause to arrest the defendant. A valid warrantless arrest was made under the laws of Texas, and the District Court properly overruled the motion to suppress the evidence seized from the person of the defendant at the time of the arrest.

The issue was properly resolved in Palmer I, and our holding therein is reapplied in this appeal.

(8) Imposition of the Death Penalty.

Defendant has raised a number of specific subissues with regard to the imposition of the death penalty. They will be considered in the same order in which they are raised.

A. The overruling of defendant’s motion to allow him to secure expert testimony regarding proportionality.

Defendant maintains that he was entitled to be given sufficient public funds so that he might secure an expert, either at trial or in preparation for an appeal before this court, to produce testimony with respect to the imposition of the death penalty in the State of Nebraska. However, while either a defendant or the State may wish to adduce evidence before the sentencing judge or panel of any case in which the death penalty has been imposed but which has not yet been reviewed by this court, the question of proportionality is not for expert testimony; it is for court determination. See State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). Thus, defendant’s motion was properly overruled.

B. The overruling of defendant’s motion to quash the presentence investigation.

Defendant maintains that a sentence of death may not be imposed, even in part, on the basis of information contained in a presentence investigation. Like many of the assignments of error raised by defendant, we have previously considered this issue and have rejected it. In State v. Reeves, 216 Neb. 206, 221, 344 N.W.2d 433, 444 (1984), we specifically addressed this issue and said: “ ‘ [T]he traditional rules of evidence may be relaxed following conviction so that the sentencing authority can receive all information pertinent to the imposition of sentence.’ ” Further, in Reeves, supra at 223, 344 N.W.2d at , we quoted from State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980), cert. denied 450 U.S. 1025, 101 S. Ct. 1731, 68 L. Ed. 2d 219 (1981), saying:

“We are unable to find any requirement in the law that a sentencing court may consider only information adduced at trial when exercising discretion in imposing sentence. Likewise, we find no constitutional requirement to permit one convicted the right to confront all who might give information to be used by the sentencing court. Such a requirement goes far beyond any constitutional mandate.”

See, also, State v. Williams, 217 Neb. 539, 352 N.W.2d 538 (1984). For these reasons this assignment is overruled.

C. The overruling of defendant’s several objections to the imposition of the death penalty.

While this assignment of error, as presented, is somewhat vague and does little to assist the court in determining any specific claim of error, defendant, in his brief, makes arguments about several specific factors which will be considered by us to have been included under this assignment of error. While, normally, such an assignment might not be considered by the court because of its vagueness, in view of the severity of the punishment imposed in this case, we address each of the items raised.

(i) Whether the district court erred in not considering nonstatutory mitigating factors.

Defendant argues that it has now been firmly established that in a capital case the sentencing authority must not be precluded from considering, as a mitigating factor, any aspect of the defendant’s character or record, or any of the circumstances of the offense, citing Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), and Bell v. Ohio, 438 U.S. 637, 98 S. Ct. 2977, 57 L. Ed. 2d 1010 (1978). In State v. Moore, supra, this court specifically declared that the defendant could offer, on the issue of mitigation, any evidence, even though the mitigating factor was not specifically listed in the statute.

Defendant argues that the sentencing court did not consider nonstatutory mitigating circumstances concerning his childhood when imposing the death penalty in this case. A closer examination of both the argument advanced by him and the record makes it clear that defendant’s complaint is not that he was not permitted to present the evidence but, rather, that the trial court must have refused to consider the factors, otherwise the court would not have imposed the death penalty in this case. In essence, defendant merely asserts that he is disappointed that the sentencing panel was not persuaded by his evidence. The sentencing panel made specific reference to the evidence regarding his childhood and found that “such evidence does not give rise to a mitigating circumstance.” There is nothing in the record to indicate that the court did not consider all of the mitigating evidence offered by defendant, but merely rejected it. The record in this case indicates that defendant’s evidence was unconvincing.

(ii) Whether the statutory aggravating circumstances set out in § 29-2523(l)(d) are unconstitutionally vague.

This argument has previously been considered by this court and rejected. See, State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984); State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982); State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977); State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977). It is again rejected in accordance with the later analysis of subissue G of this assignment of error.

(iii) Whether placing the burden ofproof upon defendant to establish mitigating circumstances is in violation of his constitutional rights.

In effect, defendant argues that, absent proof that one or all mitigating circumstances are not present, the sentencing court must presume that all mitigating circumstances exist. Not only does that argument not make any sense on its face, but it has previously been specifically rejected by this court. In State v. Moore, supra at 480, 316 N.W.2d at 46, we said:

The defendant’s eighth assignment asserts that the State has the burden of proving beyond a reasonable doubt that no mitigating factor exists. He cites no authority for this proposition. None seems to exist. There is no evidence or claim that the State suppressed any favorable evidence. If there were any mitigating factors other than those shown, the defendant is in the best position to know and reveal those factors.

The record does not sustain this alleged error.

(iv) Whether a criminal defendant in a capital case must receive notice of the nature and extent of the aggravating charges to be offered in support of the death penalty.

Defendant next argues that the district court erred in overruling his motion to require the State to specify upon which aggravating circumstances it intended to rely. In support of that position defendant argues that the sixth amendment to the U.S. Constitution, as well as Neb. Const, art. I, § 11, requires that the accused be informed or have the right to demand “the nature and cause of accusation,” citing, further, May v. State, 153 Neb. 369, 44 N.W.2d 636 (1950), and Kissinger v. State, 123 Neb. 856, 244 N.W. 794 (1932). Defendant is in error in that regard. As we previously noted in both State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980), cert. denied 450 U.S. 1025, 101 S.Ct. 1731, 68 L. Ed. 2d 219 (1981), as well as State v. Williams, 217 Neb. 539, 352 N.W.2d 538 (1984), and State v. Reeves, supra, in the sentencing stage, since it occurs after the question of guilt has been established, the then-convicted defendant is not entitled to all of the same rights accorded one merely accused of a crime but not yet convicted. Furthermore, we note in the instant case that the record clearly establishes that both defendant and his counsel were informed on the record of the aggravating circumstances the State intended to rely upon. There is no merit in this alleged error.

D. Whether the refusal to permit the jury to consider a lesser-included offense violated defendant’s constitutional rights.

Defendant first acknowledges that neither second degree murder nor manslaughter is a lesser-included offense of the charge of felony murder, citing Morgan v. State, 51 Neb. 672, 71 N.W. 788 (1897), Rhea v. State, 63 Neb. 461, 88 N.W. 789 (1901), and Wilson v. State, 170 Neb. 494, 103 N.W.2d 258 (1960). He then argues, citing, however, no authority for the proposition, that because there is no lesser-included offense for the charge of felony murder, one who commits felony murder may not be sentenced to death. If, as in the present case, there is no lesser-included offense to the crime charged, a defendant is not entitled to an instruction on a lesser-included offense. The fact, however, that a defendant is not entitled to such an instruction does not eliminate the penalty otherwise provided by statute. For these reasons all of these various miscellaneous objections raised by defendant in this regard are overruled.

E. Whether the sentence of death must be set aside because it was not imposed, at least in part, by a jury.

This issue, likewise, has been firmly established to the contrary by this court. In State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977), we specifically addressed this issue and rejected the contention that a death penalty could not be imposed absent a jury. In doing so we specifically called attention to the U.S. Supreme Court decision in Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976), reh’g denied 429 U.S. 875, 97 S. Ct. 198, 50 L. Ed. 2d 158:

“This [the U.S. Supreme] Court has pointed out that jury sentencing in a capital case can perform an important societal function, Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15, but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.”

State v. Simants, supra at 558, 250 N.W.2d at 887. We then went on to say at 559, 250 N.W.2d at 888:

As we understand the federal and state constitutional provisions, they do not require or even suggest that jury sentencing is constitutionally required. Whatever the relative merits of sentencing by a judge or jury may be, we need not consider them. Our concern is the constitutionality of the Nebraska system, under the federal and state Constitutions. The relative merits of the one or the other is for legislative and not judicial determination. We find the sentencing procedure provided by the Nebraska statute does not violate either the Nebraska or the federal Constitution.

See, also, State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980), cert. denied 450 U.S. 1025, 101 S. Ct. 1731, 68 L. Ed. 2d 219 (1981). This alleged error is overruled.

F. The overruling of defendant’s motion to recuse the members of the sentencing panel.

While the assignment is raised, there appears to be no argument addressing that specific issue, and we are unable to determine what it is that defendant contends was error. For that reason the alleged error must be overruled.

G. Whether the sentencing panel properly applied § 29-2523(l)(b) and (d) in sentencing defendant to death.

After Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), wherein the U.S. Supreme Court held to be violative of U.S. Const, amends. VIII and XIV death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty, the Legislature of Nebraska revised certain statutes pertaining to capital punishment. In 1973 the Legislature enacted the following:

In the proceeding for determination of sentence, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances set forth in section 29-2523....

§ 29-2521. In 1973 and 1978 the Legislature also enacted:

After hearing all of the evidence and arguments in the sentencing proceeding, the judge or judges shall fix the sentence at either death or life imprisonment, but such determination shall be based upon the following considerations:

(1) Whether sufficient aggravating circumstances exist to justify imposition of a sentence of death;

(2) Whether sufficient mitigating circumstances exist which approach or exceed the weight given to the aggravating circumstances; or

(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

In each case in which the court imposes the death sentence, the determination of the court shall be in writing and shall be supported by written findings of fact based upon the records of the trial and the sentencing proceeding, and referring to the aggravating and mitigating circumstances involved in its determination.

§ 29-2522.

As the aggravating circumstances referred to in §§ 29-2521 and 29-2522, in 1973 the Legislature, in § 29-2523, specified:

(1) Aggravating Circumstances:

(a) The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity;

(b) The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime;

(c) The murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant;

(d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence;

(e) At the time the murder was committed, the offender also committed another murder;

(f) The offender knowingly created a great risk of death to at least several persons;

(g) The victim was a law enforcement officer or a public servant having custody of the offender or another; or

(h) The crime was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws.

As noted earlier, the sentencing panel found the existence of aggravating circumstances (l)(b) and (d). The evidence establishes that defendant was known to the Zimmermans due to their prior course of dealings. The defendant and his wife had been to the victim’s home at least four times prior to the date of the murder. The victim clearly knew and could identify the defendant. The record therefore establishes that Zimmerman was murdered in an effort to conceal defendant’s identity. Thus, the existence of aggravating circumstance (l)(b) has been established beyond a reasonable doubt.

At approximately the time when the Nebraska Legislature was enacting §§ 29-2521 to 29-2523, the Supreme Court of Florida decided State v. Dixon, 283 So. 2d 1 (Fla. 1973), cert. denied 416 U.S. 943, 94 S. Ct. 1951, 40 L. Ed. 2d 295 (1974). Dixon dealt with the aggravating circumstance “especially heinous, atrocious or cruel” found in the Florida statutes. In Dixon the court stated at 283 So. 2d at 9:

The aggravating circumstance which has been most frequently attacked is the provision that commission of an especially heinous, atrocious or cruel capital felony constitutes an aggravated capital felony. Fla.Stat. § 921.141(6)(h), F.S. A. Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

The U.S. Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), expressed the following:

Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.. . .

Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

428 U.S. at 188-89.

While some have suggested that standards to guide a capital jury’s sentencing deliberations are impossible to formulate, the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded “that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are presented in a concrete case.” ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis in original). While such standards are by necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary. Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.

428 U.S. at 193-95.

After noting existence of the Model Penal Code, which refers to aggravating circumstances to warrant imposition of the death penalty and uses the phrase “manifesting exceptional depravity” (now found in Model Penal Code § 210.6(3)(h) (1980)), the Court continued:

In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.

428 U.S. at 195.

Gregg v. Georgia, supra, was followed by Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). Godfrey’s wife and daughter lived with Godfrey’s mother-in-law in her trailer. When reconciliation efforts were rebuffed by Godfrey’s wife, Godfrey went to the trailer; fired a shotgun through the trailer’s window, killing the wife instantly; proceeded into the trailer; and, inside, shot and instantly killed his mother-in-law. On conviction for the murders, Godfrey was sentenced to death by virtue of a statute authorizing capital punishment if evidence beyond a reasonable doubt showed that the murder “was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Ga. Code Ann. § 27-10-30(b)(7) (1982). The U.S. Supreme Court stated:

In Furman v. Georgia, 408 U.S. 238, the Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. Gregg v. Georgia, supra, reaffirmed this holding:

“[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” 428 U.S., at 189 (opinion of Stewart, Powell, and Stevens, JJ.).

A capital sentencing scheme must, in short, provide a “ ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’ ” Id., at 188, quoting Furman v. Georgia, supra, at 313 (White, J., concurring).

This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates “standardless [sentencing] discretion.” [Citations omitted.] It must channel the sentencer’s discretion by “clear and objective standards” that provide “specific and detailed guidance,” and that “make rationally reviewable the process for imposing a sentence of death.” As was made clear in Gregg, a death penalty “system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” 428 U.S., at 195, n. 46.

In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was “outrageously or wantonly vile, horrible and inhuman.” There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as “outrageously or wantonly vile, horrible and inhuman.”

446 U.S. at 427-29.

The petitioner’s crimes cannot be said to have reflected a consciousness materially more “depraved” than that of any person guilty of murder. His victims were killed instantaneously. They were members of his family who were causing him extreme emotional trauma.... [I]t “is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”

That cannot be said here. There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not. Accordingly, the judgment of the Georgia Supreme Court insofar as it leaves standing thé petitioner’s death sentences is reversed....

446 U.S. at 433.

With the foregoing background regarding the appearance of State v. Dixon, 283 So. 2d 1 (Fla. 1973), cert. denied 416 U.S. 943, 94 S. Ct. 1951, 40 L. Ed. 2d 295 (1974), Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), and Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), this court has decided death penalty cases in reference to § 29-2523(l)(d) as an aggravating circumstance, that is, “[t]he murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.” We note that the word or separates “especially heinous, atrocious, cruel” from “manifested exceptional depravity by ordinary standards of morality and intelligence.” Thus, aggravating circumstance (l)(d) of § 29-2523 describes in the disjunctive at least two distinct components of an aggravating circumstance which may relate to a murder and which “may operate in conjunction with or independent of one another.” State v. Moore, 210 Neb. 457, 470, 316 N.W.2d 33, 41 (1982). See, also, Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554 (1984). The presence of any of the components will sustain a finding that aggravating circumstance (l)(d) exists. See State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986). See, also, State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983), cert. denied 461 U.S. 971, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (regarding “heinous, cruel, or depraved,” such statutory expression is in the disjunctive, “ ‘so either all or one could constitute an aggravating circumstance’ ”). To the extent any of our previous cases such as State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985), State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977), and State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977), contain language which may be read to suggest that the components of aggravating circumstance (l)(d) are in the conjunctive rather than the disjunctive, such language is disapproved.

Among the crimes in which circumstance (l)(d) is frequently found are murders involving “ ‘torture, sadism, sexual abuse, or the imposition of extreme suffering....’ ” State v. Rust, 197 Neb. 528, 538-39, 250 N.W.2d 867, 874 (1977). See, also, State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).

There is no arithmetical computation or formula required in a court’s consideration of aggravating and mitigating circumstances under § 29-2523. Regarding an aggravating circumstance or a mitigating circumstance, there is no prescribed statutory method by which more or less weight is assigned to each circumstance indicated in § 29-2523. Where one or more of the aggravating circumstances are established beyond a reasonable doubt concerning a murder, the death penalty may be imposed as a proper sentence unless mitigating circumstances approach or outweigh any aggravating circumstance or circumstances, thereby overriding the effect of such aggravation. See State v. Dixon, supra. Existence of an aggravating circumstance under § 29-2523(1) must be proved beyond a reasonable doubt. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Rust, supra.

As a meaning for the words “especially heinous, atrocious, cruel” found in circumstance (l)(d) of § 29-2523, this court, in State v. Simants, supra at 566, 250 N.W.2d at 891, has adopted the definition utilized by the Florida court in State v. Dixon, supra, that is, especially heinous, atrocious, cruel is “directed to the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” See, State v. Stewart, supra; State v. Moore, supra; State v. Reeves, supra. See, also, State v. Hunt, supra.

“Torture may be found where the victim is subjected to serious physical, sexual, or psychological abuse before death.” Phillips v. State, 250 Ga. 336, 340, 297 S.E.2d 217, 221 (1982). “A victim’s uncertainty as to the ultimate fate can be significant in indicating mental suffering.” State v. Correll, supra at 480, 715 P.2d at 733.

As did the U.S. Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), we note the existence of Model Penal Code § 210.6(3)(h) (1980), which is an aggravating circumstance for imposition of the death penalty and contains the phrase “manifesting exceptional depravity.” In applying the “exceptional depravity” component of § 29-2523(l)(d), we have interpreted and construed that phrase to mean “totally and senselessly bereft of any regard for human life.” State v. Stewart, supra at 523, 250 N.W.2d at 864; State v. Rust, supra; State v. Holtan, supra; State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981); State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).

In reviewing death penalty cases this court has determined that “exceptional depravity,” or an act “totally and senselessly bereft of any regard for human life,” existed in several cases. Some of those cases are now set forth for illustrative purposes.

State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977): While robbing a bar, Holtan “herded” the bartender (Loder), the bartender’s friend (Ulshafer), and bar patron (Christensen) into a restroom, where Holtan ordered Loder to tie the other two and, while the three victims were lying on the floor, then fired four shots, two striking and killing Loder, one wounding Ulshafer, and the fourth missing any victim. This court stated: “The defendant killed, and attempted to kill, unresisting victims of the robbery. The act was totally and senselessly bereft of any regard for human life.” Id. at 547, 250 N.W.2d at 880.

State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977): Simants sexually abused three female victims, including first degree sexual assault on a 10-year-old female and sexual penetration of the child’s corpse after Simants had shot and killed the child; sexual molestation of a 7-year-old female; and sexual molestation of the grandmother of the 10-year-old victim and a sexual “attack on her body after her death.” Id. at 566, 250 N.W.2d at 891. The victims’ deaths were caused by gunshot wounds inflicted by Simants. This court stated: “The use of the word ‘exceptional,’ however, confines it only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence.” Id. This court then determined that depravity was present in the murder of the three females, because (1) “[t]he sexual assault [on the 10-year-old] caused pain, and when the young girl cried out she was killed and there was a further sexual assault upon her after death”; (2) there were “bruises displayed on the inside of [the 7-year-old child’s] thighs”; and (3) concerning the victim-grandmother, there was “the difference in the ages of the defendant and the victim, coupled with the attack on her body after her death.” Id. at 565-66, 250 N.W.2d at 891.

State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977): With a rope Peery tied his victim’s feet and hands at the wrist behind the victim’s back. The victim was gagged and offered no resistance (“totally helpless”). Id. at 675, 261 N.W.2d at 105. Peery inflicted three gunshot wounds on the victim, one between the victim’s eyes, one at the right temple of the victim, and the third inflicted while the firearm was thrust into the victim’s mouth so that the bullet pierced the roof of the mouth and entered the victim’s brain.

State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979): Otey told the victim he was going to rob and rape her. When the victim tried to resist, Otey slashed the victim’s forehead with a knife and then sexually assaulted the victim. After the sexual assault Otey took the victim to another part of a building where Otey sought the victim’s money and inflicted several deep knife wounds on the victim, hit her in the head with a hammer, and, finally, strangled the victim.

State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981): When his girlfriend declined to marry him and married another, Harper tested a carcinogen, dimethylnitrosamine, on his parents’ pets. Dimethylnitrosamine induces cancer and disrupts blood clotting. After the pets had died as a result of the dimethylnitrosamine, Harper entered his ex-girlfriend’s residence and put the dimethylnitrosamine in beverages later ingested by his girlfriend’s husband and an 11-month-old child, causing the deaths of the two victims. This court, after noting that each victim had “died a slow and agonizing death” and experienced “extreme suffering” as a result of the dimethylnitrosamine, stated: “[T]he murders of [the two victims] were so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life.” Id. at 576, 304 N.W.2d at 668.

State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982): Moore devised a plan to rob Omaha cabdrivers. From a telephone booth in downtown Omaha, Moore called a cab and waited to see how quickly the cabdriver responded to that call. If the responding cabdriver was suitable for Moore’s plan, that is, “an older man” rather than a young man, Moore planned to shoot the cabdriver and take the driver’s money. Pursuant to his plan, Moore shot and killed one cabdriver on August 22, 1979, and another on August 26,1979. This court held at 471, 316 N.W.2d at 41:

We agree that the following circumstances exhibit a state of mind exceptionally depraved and totally and senselessly bereft of regard for human life: (1) The murders here were coldly planned as a part of the robberies. (2) The evidence clearly supports the conclusion that the murders were to be repetitive, i.e., the defendant intended to continue on his selected course of conduct so long as his needs required. (3) The victims were selected on the basis of certain characteristics which made it easier for the defendant to shoot them, namely, their ages. His unstated conclusion was that a human life in the middle years is less valuable than a younger life.

State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984): After a struggle with the victim and during the course of a first degree sexual assault, Reeves stabbed his victim seven times in her chest. The cuts on the victim’s hands “showed that she tried to defend herself from the defendant’s brutal attack.” Before dying, the victim experienced “extreme suffering.” Id. at 227, 344 N.W.2d at 447.

The foregoing Nebraska death penalty cases involving the “exceptional depravity” component of aggravating circumstance (l)(d) are clear-cut, specific examples which demonstrate the meaning of the phrase “exceptional depravity.” Other courts have held that “depraved” means “marked by debasement, corruption, perversion or deterioration.” State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983), cert. denied 461 U.S. 971, 103 S. Ct. 2444, 77 L. Ed. 2d 1327. See, also, State v. Morehouse, 120 N.H. 738, 424 A.2d 798 (1980). Therefore, the finding concerning this component of aggravating circumstance (l)(d) must be not only that the murderer manifested depravity but that the murderer manifested “exceptional depravity.” The word “exceptional” sets the defendant’s act apart from the usual or norm of first degree murder cases and requires “a consciousness materially more ‘depraved’ than that of any person guilty of murder.” Godfrey v. Georgia, 446 U.S. 420, 433, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). In this manner “exceptional depravity” is not a catchall phrase or provision for imposition of the death penalty in first degree murder cases where none of the aggravating circumstances otherwise apply to the murder under examination.

The phrase “exceptional depravity” in § 29-2523(l)(d) refers and pertains to “the state of mind of the actor.” State v. Moore, supra at 470, 316 N.W.2d at 41. See, also, State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985). Depravity, as a murderer’s state of mind, may be proved by or inferred from the defendant’s conduct at or near the time of the offense. See, State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977); State v. Martinez-Villareal, supra.

The Supreme Court of Missouri made the following observation in State v. Preston, 673 S.W.2d 1, 11 (Mo. 1984), cert. denied 469 U.S. 893, 105 S. Ct. 269, 83 L. Ed. 2d 205:

In following the mandate of Godfrey to establish “clear and objective standards” as to what types of murders constitute “depravity of mind,” this Court, while not expressly adopting a precise definition, has noted the following factors to be considered in finding “depravity of mind”: mental state of defendant, infliction of physical or psychological torture upon the victim as when victim has a substantial period of time before death to anticipate and reflect upon it; brutality of defendant’s conduct; mutilation of the body after death; absence of any substantive motive; absence of defendant’s remorse and the nature of the crime. [Citations omitted.]

In State v. Gretzler, supra, the Supreme Court of Arizona provided a list of specific factors which may lead to a finding of depravity, namely, (1) the apparent relishing of the murder by the killer, (2) the infliction of gratuitous violence on the victim, (3) the needless mutilation of the victim, (4) the senselessness of the crime, and (5) the helplessness of the victim. See, also, State v. Wallace, 151 Ariz. 362, 728 P.2d 232 (1986).

By use of objective factors, such as those suggested by the Supreme Court of Arizona in State v. Gretzler, supra, there is a “principled way to distinguish” a death penalty case from those cases where the death penalty is not imposed, see Godfrey v. Georgia, 446 U.S. at 433, and, in the imposition of the death penalty, to control discretion “ ‘by clear and objective standards so as to produce non-discriminatory application,’ ” Gregg v. Georgia, 428 U.S. 153, 198, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Therefore, for the purpose of § 29-2523(l)(d) as an aggravating circumstance in determining whether the death penalty may be imposed, we hold 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. As we have previously mentioned in reference to “heinous, atrocious, cruel” and “exceptional depravity” as disjunctive components of the aggravating circumstance at § 29-2523(l)(d), the five factors which will support a finding of “exceptional depravity” are also stated in the disjunctive. Consequently, where one or more of those five factors are present, there may be a finding of “exceptional depravity” concerning a first degree murder. Further, we observe that one or more of those five factors or circumstances, listed above, were present in those cases where “exceptional depravity” was found to exist as an aggravating circumstance in the illustrative Nebraska cases involving “exceptional depravity,” which we have previously mentioned in this opinion, namely, State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977), State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977), State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977), State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979), State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981), State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), and State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).

Thus, both the phrase “especially heinous, atrocious, cruel” and the phrase “manifested exceptional depravity by ordinary standards of morality and intelligence” provide objective standards in imposing the death penalty, and neither phrase is unconstitutionally vague. Cf. State v. Simants, supra.

We emphasize that we do not state, nor do we imply, that “exceptional depravity” may not exist independent of “especially heinous, atrocious, cruel,” although existence of a murder which is “especially heinous, atrocious, cruel” may well establish “exceptional depravity, ” such as a murderer’s relishing the victim’s murder or infliction of gratuitous violence. See, State v. Cooper, 718 S.W.2d 256 (Tenn. 1986); Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d 271 (1983); Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980).

The sentencing panel did not find Zimmerman’s murder to be “especially heinous, atrocious, cruel,” although the evidence would have supported such a finding beyond a reasonable doubt. The facts of this case show that the murder of Zimmerman was a “conscienceless or pitiless crime” which was unnecessarily torturous to the victim. Defendant physically abused Zimmerman by beating him, causing bruises, cuts, and scratches. Zimmerman’s physical and mental pain are shown by the testimony of Cherie Palmer and found in the appreciable period of time endured by Zimmerman while he awaited his death at defendant’s hands. Zimmerman’s stress and fear very likely grew to immense proportions as he lay bound and helpless before the murder.

The murder of Zimmerman also “manifested exceptional depravity” on the part of defendant. With Zimmerman bound and helpless on the bed, there was no obstacle to defendant’s absconding with Zimmerman’s property. Defendant’s physical abuse of Zimmerman, who was bound on the bed, was unnecessary to complete the robbery. In murdering Zimmerman defendant inflicted gratuitous violence upon a helpless victim.

The record establishes beyond a reasonable doubt that Zimmerman’s murder “manifested exceptional depravity” and that aggravating circumstance (l)(d) exists beyond a reasonable doubt.

Section 29-2523 also specifies seven mitigating circumstances as required by § 29-2522.

Section 29-2523(2)(a) states: “The offender has no significant history of prior criminal activity.” The defendant’s prior convictions include a 1959 conviction for breaking and entering, a 1970 conviction for two violations of the Mann Act, a 1974 conviction for buying, receiving, or aiding the concealment of stolen property, and a 1975 conviction for interstate transportation of forged and altered securities. In view of the defendant’s significant history of criminal activity, this mitigating circumstance does not exist.

The defendant was not under unusual pressure, influence, or under the domination of another person. Therefore, the record does not establish the existence of the mitigating circumstance set out under § 29-2523 (2)(b).

Section 29-2523(2)(c) provides: “The crime was committed while the offender was under the influence of extreme mental or emotional disturbance.” The record does not support the existence of this mitigating circumstance.

At the time of the crime the defendant was 40 years old. The mitigating circumstance set out under § 29-2523(2)(d), which provides for the mitigating factor of youth or extreme age, does not exist.

Mitigating circumstance (2)(e) exists when the offender was an accomplice in the crime committed by another and the offender’s participation was relatively minor. Mitigating circumstance (2)(f) exists when the victim was a participant in the defendant’s conduct or consented to the act. The record establishes that defendant alone did the killing and did not act as an accomplice whose participation was relatively minor. Neither does the record establish that Zimmerman either participated in or in any way consented to any act. Therefore, there is nothing in the record which would support a finding that either mitigating circumstance (2)(e) or (2)(f) exists.

Finally, the issue of the defendant’s capacity to appreciate the wrongfulness of his actions or his ability to conform his conduct to the law has not been questioned. Therefore, the mitigating circumstance of mental illness, mental defect, or intoxication at the time of the murder does not exist as provided for under § 29-2523(2)(g).

The record reveals no other mitigating circumstances.

H. Proportionality of the death penalty.

Finally, the defendant argues that the sentence of death in this case is erroneous because it is “greater than those imposed in other cases with the same or similar circumstances,” and therefore is disproportionate in violation of § 29-2521.03.

Sections 29-2521.01, 29-2521.02, and 29-2521.03 provide that this court shall review and analyze all cases involving criminal homicide committed on or after April 20, 1973, and determine the propriety of the sentence in each case involving a criminal homicide “by comparing such case with previous cases involving the same or similar circumstances.” The expressed purpose is to ensure that the death penalty should be applied uniformly and not arbitrarily.

It is apparent that the statutes cannot be enforced as they were written. The term homicide includes all crimes involving “the killing of a person by another.” Neb. Rev. Stat. § 28-302(1) (Reissue 1985). A death sentence may be imposed only in cases involving a Class I felony. Neb. Rev. Stat. § 28-105(1) (Reissue 1985).

In State v. Williams, 205 Neb. 56, 76, 287 N.W.2d 18, 29 (1979), we noted that to interpret the language of the statute literally “would create insurmountable constitutional problems.” We further noted that cases construing a similar Georgia statute reflected the obvious fact that it was a practical impossibility to make a meaningful comparison of a death sentence in a first degree murder case with a sentence imposed for another crime for which the death sentence was not authorized.

In the Williams case we construed the word “sentence” in § 29-2521.03 to mean a sentence of death and that the provisions requiring a comparison with previous cases were applicable only to cases in which a sentence of death had been imposed. Finally, we concluded in the Williams case that the sentence imposed was not excessive or “disproportionate to the death penalties imposed in the other death penalty cases.” 205 Neb. at 77, 287 N.W.2d at 29-30.

In State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), we delineated some of the reasons why a literal application of the statute would unconstitutionally encroach upon the judicial function. In tht Moore case we stated at 473-76, 316 N.W.2d at 42-44:

Neb. Const, art II, § 1, provides: “The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.” A similar division of powers, under the U.S. Constitution, is held to exist by implication. Corwin’s The Constitution and What It Means Today at 6-7, 204 (14th ed. H. Chase & C. Ducat 1978); Hampton & Co. v. United States, 276 U.S. 394, 48 S. Ct. 348, 72 L. Ed. 624 (1928); Hayburn’s Case, 2 Dall. 409, 2 U.S. 409, 1 L. Ed. 436 (1792).

The separation of powers doctrine imposes restrictions upon the legislative branch to limit the judicial functions of the courts. The Legislature cannot, by subsequent legislation, divest rights which have vested by virtue of a judgment. City of Wayne v. Adams, 156 Neb. 297, 56 N.W.2d 117 (1952). It cannot enact legislation to retroactively open or vacate a judgment. Mooney v. Drainage District, on rehearing 134 Neb. 192, 278 N.W. 368 (1938), cert. denied 305 U.S. 622, 59 S. Ct. 84, 83 L. Ed. 398 (1938). The limits of the jurisdiction conferred upon the Supreme Court by the Constitution may not be increased or extended by legislative enactment. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937); Miller v. Wheeler, 33 Neb. 765, 51 N.W. 137 (1892); State v. Hall, 47 Neb. 579, 66 N.W. 642 (1896). It cannot change procedures established by the Constitution. State ex rel. v. Ellis, 156 Or. 83, 66 P.2d 995 (1937). It cannot interfere with the judicial function of adjudicating the fact of an acquittal. In re Johnston, 3 Cal. 2d 32, 43 P.2d 541 (1935). It may not reverse a judgment. Roberts v. The State, 160 N.Y. 217, 54 N.E. 678 (1899). It may not direct the disposition of a case in which jurisdiction has attached. State v. Costen, 141 Tenn. 539, 213 S.W. 910 (1919). 7i is to be clearly implied from the foregoing principles that the Legislature cannot direct the disposition of one case by the factual determinations in another.

It is apparent from the language of § 29-2521.01(5) and § 29-2521.02 that the Legislature attempts to impose a mandate upon this court to look behind prosecutorial judgments concerning the charges to be filed, jury verdicts determining the particular degree of homicide, and then, based upon our independent findings of the facts in those adjudicated cases, to determine the penalty in the case before us.

We must examine the constitutional import of the foregoing legislative purpose. In examining prosecutorial discretion we would of necessity have to independently gather evidence. The gathering of evidence is not a judicial function but one of the executive. We would then determine what charges we think should have been filed. Again, this is an executive function of the prosecutor. We would make a judgment about the chances of a conviction as against an acquittal, again an executive function. We would need to weigh the advisability of a plea bargain to secure a conviction on a lesser charge in order to avoid a likely acquittal of all charges. These are all clearly executive and not judicial functions.

It must be borne in mind that not all homicide convictions result in appeals to this court. The following illustrates the Legislature’s intrusion into the judicial function under L.B. 711. If a person is charged with murder in the first degree but convicted of a lesser degree of homicide, and if L.B. 711 is to be applied literally, we would then, for purposes of reviewing the case before us, disregard the factfindings of the jury in the so-called “analogous” case. Such a procedure would be constitutionally objectionable for a number of reasons. First, it would require this court to find facts in a case not before it. Secondly, it would constitute an attempt by the Legislature to make the factfindings of one case determinative of the sentence in another case on review. It is plain that under the principles we have earlier cited, that legislation which attempts to achieve such results is an intrusion on the judicial function, contrary to the separation of powers doctrine, and thus violates article II, § 1.

Another effect of L.B. 711 would be to unconstitutionally restrict the appellate review powers of this court under Neb. Const, art. I, § 23, as that legislation attempts to bind this court by requiring it to apply sentences imposed in some “analogous” case in a district court. It is clear that applying such a standard would restrict a defendant’s right to an independent review by this court under article I, § 23, of the Bill of Rights of our Nebraska Constitution. This section provides: “In all cases of felony the defendant shall have the right of appeal to the Supreme Court; and in capital cases such appeal shall operate as a supersedeas to stay the execution of the sentence of death, until further order of the Supreme Court.”

Upon this closer review of L.B. 711, it is clear the Legislature in that act attempts to exercise the judicial function in violation of the Constitution. Sections 2 and 3 of L.B. 711 must be restricted in their application to a comparison in this court of only those cases in which the defendant in the District Court has been convicted of murder in the first degree.

(Emphasis supplied.)

In his brief the defendant cites a number of cases in which a sentence to life imprisonment was imposed. He then argues that the cited cases involved the same or similar circumstances as this case and that the sentence imposed in this case is, therefore, excessive and disproportionate.

One of the cases cited by the defendant is State v. Floyd, a Hamilton County, Nebraska, case in which no appeal was taken to this court. In State v. Moore, 210 Neb. 457, 477, 316 N.W.2d 33, 44 (1982), in reference to an exhibit relating to the Floyd case, we said: “Although not specifically argued, it clearly appears the apparent purpose of introducing the exhibit was to raise the issue of whether an isolated case in which the death penalty perhaps should have been imposed, but was not, becomes the standard which governs all capital cases before this court.” We rejected the argument, largely upon the basis that it was impossible to tell from the limited record before us whether Floyd should have been sentenced to death. However, we concluded also that an isolated case should not be the standard by which all other sentences must be judged.

Evenhandedness in sentencing is a goal for which all courts strive. We do not perceive, however, that it was the purpose of the Legislature to eliminate all discretion in sentencing and ensure that the death penalty be imposed in every case in which it is a possible sentence or that the penalty not be imposed in cases in which it is appropriate because in certain other cases it was not imposed, although it might have been an appropriate sentence. We think the dominant purpose of the statute is best expressed by the provision in § 29-2521.03 that “[n]o sentence imposed shall be greater than those imposed in other cases with the same or similar circumstances.”

It would be possible to construe the statute so that cases in which the death penalty was not imposed, although upon reflection it could be said that the death penalty might have been imposed, would be the standard against which all future death penalty cases would be compared. By a process of “attrition” this would result in a substantial narrowing of the group of cases in which the death penalty would be a possible sentence and, eventually, for all practical purposes, could amount to a repeal of the death penalty. We do not understand that the Legislature intended the statute to effect a repeal of the death penalty. We take judicial notice of the fact that the Legislature has considered bills to repeal the death penalty many times in recent years, but a repeal has never become law. Most recently, a legislative bill for that purpose (L.B. 70, 89th Leg., 1st Sess.) was indefinitely postponed by the Legislature’s adjournment on April 16,1986.

Whatever cases are examined, the final act of review which this court must perform is to determine “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” § 29-2522(3). In order for this court to perform that function, that section also requires that when the trial court imposes the death sentence, the determination must be in writing with reference to the aggravating and mitigating circumstances involved. There is no similar requirement when the sentence is life imprisonment.

Accordingly, there is no way of this court’s knowing whether any aggravating or mitigating circumstances were present in a given case unless the sentence was death. Therefore, no other case but a death sentence case can be said to be a case similar to that under review.

In Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984), the U.S. Supreme Court held that the U.S. Constitution does not require a state appellate court, before it affirms a death sentence, to compare the sentence in the case before it with the penalties imposed in similar cases, although requested to do so by the prisoner. In death cases the proportionality requirements of the U.S. Constitution are satisfied by the procedure for identifying aggravating and mitigating circumstances and meaningful appellate review.

In Pulley the Court stated at 54:

Any capital sentencing scheme may occasionally produce aberrational outcomes. Such inconsistencies are a far cry from the major systemic defects identified in Furman. As we have acknowledged in the past, “there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.’ ” Zant v. Stephens, 462 U.S., at 884, quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion).

In Gregg v. Georgia, 428 U.S. 153, 199, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), the Court stated: “Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution.”

In some of our prior decisions we have indicated that the proportionality review in all death penalty cases is a comparison of the facts and circumstances in all first degree murder cases, whether the penalty imposed was death or life imprisonment. Upon further consideration of this question we have concluded that the review should include only those cases in which the death penalty was imposed. Since there is an automatic appellate review in all such cases, we have before us records upon which we can rely in making the analysis and comparison.

An important distinguishing factor that is present in all death penalty cases is an adjudication that there are one or more aggravating circumstances which are not outweighed by any mitigating circumstances. Although the existence of an aggravating circumstance does not ensure that the death penalty will be imposed, the absence of an adjudication that at least one aggravating circumstance exists prevents the death penalty from being imposed.

The Supreme Court of South Carolina has determined that the proportionality review which it makes in death cases under a similar statute should be limited to other cases in which the death penalty was imposed. In State v. Copeland, 278 S.C. 572, 586-87, 300 S.E.2d 63, 71-72 (1982), cert. denied 460 U.S. 1103, 103 S. Ct. 1802, 76 L. Ed. 2d 367 (1983), that court stated:

Appellant Copeland attacks the constitutionality of the South Carolina death penalty regime on the basis of this Court’s interpretation of § 16-3-25(C) of the Code.

The General Assembly of South Carolina has clearly made the policy determination that proportionality review by this Court shall be accorded capital defendants who actually receive a sentence of death. The language of § 16-3-25(C) puts three questions before this Court for review in a given case:

1. Whether sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and

2. Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 16-3-20, and

3. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

It is the third inquiry which constitutes proportionality review in South Carolina. Under the statute, the task of defining “similar cases” and with it the scope of any comparative analysis is plainly and properly left to this Court. As indicated below, both the statutory language and the nature of the task give rise to perplexity. There is, after all, some logic to the view that the heinous crime is sui generis, simply beyond comparison.

Then, after discussing the absence of any federal constitutional requirement of a proportionality review, the court stated at 590-91, 300 S.E.2d at 74:

We conclude from the foregoing that the contours of proportionality review, where it exists, have been left to state determination since the U.S. Supreme Court has declined to impose any specific model of review upon the states. § 16-3-25(C) of the Code represents an act of legislative grace by the General Assembly which we are required to interpret in accordance with sound rules of statutory construction.

In our view, the search for “similar cases” can only begin with an actual conviction and sentence of death rendered by a trier of fact in accordance with § 16-3-20 of the Code. We consider such findings by the trial court to be a threshold requirement for comparative study and indeed the only foundation of “similarity” consonant with our role as an appellate court.

We recognize that in some jurisdictions and commentaries it is felt that the reviewing court should compare a given death sentence with a “universe” of cases which includes sentences of life imprisonment, acquittals, reversals and even mere indictments and arrests. Under such a regime, the reviewing court could only determine the size of its sample or “universe” by some arbitrary device. Fact findings of the trial court, by contrast, provide a fundamental line of demarcation well recognized in and even exalted by our legal tradition. The decisive importance of such findings is evidenced by the language of Article V, section 5, South Carolina Constitution, which limits our review to “correction of errors at law” in all but equity cases.

To expand the notion of a “universe” would also entail intolerable speculation by this Court. Under the South Carolina statute, a jury is not required to state its reasons for failing to recommend a sentence of death. In a given case, the alleged aggravating circumstance may not have been proven to the satisfaction of the jury, while in another “similar case” (expansively defined) the statutory mitigating circumstances or some mitigating factor “otherwise authorized or allowed by law” may have deterred imposition of the death sentence.

This Court would enter a realm of pure conjecture if it attempted to compare and contrast such verdicts with an actual sentence of death. They represent acts of mercy which have not yet been held to offend the United States Constitution. Moreover, they reflect the emphasis upon individualized sentencing mandated by the United States Supreme Court. We will not subject these verdicts to scrutiny in pursuit of phantom “similar cases,” when a meaningful sample lies ready at hand in those cases where the jury has spoken unequivocally.

Similarly, in State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985), the Arizona Supreme Court limited its proportionality review to cases in which the death penalty had been imposed and the sentence affirmed or reduced.

It must be recognized that no two death cases are the same. The facts vary greatly from case to case, and the cases cannot be “color-matched.” The comparison of the facts in any death case with the facts in previous cases in which the death penalty has been imposed can at best be general in nature.

From our review of the record in this case, and the review of the records in all cases in which the death sentence was imposed for offenses committed on or after April 20, 1973, we have concluded that the penalty imposed in this case is neither excessive nor disproportionate to the penalty imposed in the earlier cases, considering both the crime and the defendant.

The judgment of the district court is affirmed.

Affirmed.