State v. Galindo

allege that he faces the prospect of denial of an application for
naturalization based solely upon the conviction which he seeks
to vacate. Because Yos-Chiguil did not allege an essential fact
necessary to trigger the remedy provided by § 29-1819.02(2),
the district court did not err in denying the relief sought with-
out an evidentiary hearing.
Because we dispose of the appeal on this basis, we do not
reach the State’s arguments that “substantial compliance” with
the requirements of § 29-1819.02(1) is sufficient and that the
advisement which was given to Yos-Chiguil substantially com-
plied with those requirements.19
CONCLUSION
For the reasons discussed, the judgment of the district court
is affirmed.
A ffirmed.
StAte of NebrASkA, Appellee , v.
Jorge gAliNdo, AppellANt.
774 N.W.2d 190
Filed October 9, 2009. 	Nos. S-04-443, S-04-1326.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of
law, and an appellate court resolves such issues independently of the lower
court’s conclusions.
2. Trial: Juries: Appeal and Error. The retention or rejection of a venireperson as
a juror is a matter of discretion with the trial court and is subject to reversal only
when clearly wrong.
3. Venue: Appeal and Error. A motion for change of venue is addressed to the
discretion of the trial judge, whose ruling will not be disturbed absent an abuse
of discretion.
4. Constitutional Law: Criminal Law: Statutes. Any statute which punishes as a
crime an act previously committed which was innocent when done, which makes
more burdensome the punishment for a crime after its commission, or which
deprives one charged with a crime of any defense available according to law at
the time when the act was committed is prohibited as ex post facto.
5. Constitutional Law: Legislature. The Ex Post Facto Clause does not extend to
limit legislative control of remedies and modes of procedure which do not affect
matters of substance.
STATE v. gALINdO 	599
Cite as 278 Neb. 599
19 Brief for appellee at 10.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

6. Criminal Law: Statutes: Time. Statutes governing substantive matters in effect
at the time of a crime govern, and not later enacted statutes.
7. ____: ____: ____. Procedural statutes in effect on the date of a hearing or pro-
ceeding govern, and not those in effect when the violation took place.
8. ____: ____: ____. A change in law will be deemed to affect matters of substance
where it increases the punishment or changes the ingredients of the offense or the
ultimate facts necessary to establish guilt.
9. Statutes: Words and Phrases. A rule is substantive if it alters the range of con-
duct or the class of persons that the law punishes.
10. Statutes. Rules that regulate only the manner of determining a defendant’s culpa-
bility are procedural.
11. Death Penalty: Legislature: Statutes. The change in 2002 Neb. Laws, L.B. 1,
regarding which fact finder should determine death eligibility is a procedural
change and not a change in substance.
12. Sentences: Death Penalty: Legislature: Juries: Judges. Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), is a limited holding that a
jury, and not a judge, must decide those facts which a state legislature has deter-
mined to be essential to a sentence of death.
13. Trial: Sentences: Death Penalty. Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428,
153 L. Ed. 2d 556 (2002), invalidated a particular procedure for determining
death eligibility at trial, but it did not invalidate the death penalty.
14. Sentences. The invalidity of a single provision purely procedural in nature
does not automatically invalidate the underlying punishment to which that pro-
cedure applies.
15. Constitutional Law: Statutes: Proof. Only the clearest proof suffices to estab-
lish the unconstitutionality of a statute as a bill of attainder.
16. Criminal Law: Statutes: Words and Phrases. A bill of attainder is a legislative
act which applies to named individuals or to easily ascertained members of a
group in such a way as to inflict punishment on them without a judicial trial.
17. Criminal Law: Statutes. 2002 Neb. Laws, L.B. 1, is not a bill of attainder.
18. ____: ____. In order for a legislative enactment to be deemed a bill of attainder,
it must (1) specify the affected persons, (2) inflict punishment, and (3) lack a
judicial trial.
19. Juries: Verdicts. There is no general requirement that a jury reach agreement on
the preliminary factual issues which underlie the verdict.
20. Constitutional Law: Criminal Law: Trial: Witnesses. The Sixth Amendment to
the U.S. Constitution guarantees the right of an accused in a criminal prosecution
to be confronted with the witnesses against him or her, and the main and essential
purpose of confrontation is to secure the opportunity of cross-examination.
21. ____: ____: ____: ____. The right to confrontation is not applicable to the sen-
tencing phase of a criminal trial.
22. Sentences: Due Process: Constitutional Law. Although a defendant is entitled
to due process upon sentencing, the U.S. Constitution does not require that
he or she be given the full panoply of rights accorded when the issue is guilt
or innocence.
23. Statutes: Time. While procedural statutes do apply to pending litigation, it is a
general proposition of law that new procedural statutes have no retroactive effect
600 	278 NEBRASkA REPORTS

upon any steps that may have been taken in an action before such statutes were
effective. All things performed and completed under the old law must stand.
24. Jurors: Appeal and Error. The erroneous overruling of a challenge for cause
will not warrant reversal unless it is shown on appeal that an objectionable juror
was forced upon the challenging party and sat upon the jury after the party
exhausted his or her peremptory challenges.
25. Juror Qualifications. The law does not require that a juror be totally ignorant
of the facts and issues involved in the case; it is sufficient if the juror can
lay aside his or her impression or opinions and render a verdict based upon
the evidence.
26. ____. If the voir dire examination of a juror considered as a whole does not show
bias or partiality, a challenge upon that ground is properly overruled, although
during his or her examination statements are made which, if unexplained, might
have been a ground for challenge.
27. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion
to change venue when a defendant establishes that local conditions and pretrial
publicity make it impossible to secure a fair and impartial jury.
28. Venue: Juror Qualifications. Voir dire examination provides the best opportu-
nity to determine whether a court should change venue.
29. Juror Qualifications: Parties: Appeal and Error. generally, the extent to
which parties may examine jurors as to their qualifications rests largely in the
discretion of the trial court, the exercise of which will not constitute reversible
error unless clearly abused, and where it appears that harmful prejudice has been
caused thereby.
30. Juror Qualifications: Death Penalty. The proper standard for determining when
a prospective juror may be excluded for cause because of his or her views on
capital punishment is whether the juror’s views would prevent or substantially
impair the performance of his or her duties as a juror in accordance with the
juror’s instructions and oath.
31. ____. ____. Essential demands of fairness mandate that a defendant on trial
for his or her life be permitted on voir dire to ascertain whether a prospective
juror holds a belief that reflects directly on that individual’s inability to follow
the law.
32. Constitutional Law: Juror Qualifications: Death Penalty. The U.S. Constitution
does not dictate a catechism for voir dire, but only that the defendant be afforded
an impartial jury.
33. Death Penalty. The death penalty as retribution must be tailored to the defend-
ant’s personal responsibility and moral guilt.
34. Criminal Law: Sentences: Death Penalty. The reckless disregard for human
life implicit in knowingly engaging in criminal activities known to carry a grave
risk of death represents a highly culpable mental state, a mental state that may
be taken into account in making a capital sentencing judgment when that conduct
causes its natural, though also not inevitable, lethal result.
35. Homicide. The greater a defendant’s participation in the felony murder, the more
likely the defendant acted with reckless indifference to human life.
36. ____. Premeditated murder and felony murder are but different ways to commit a
single offense of first degree murder.
STATE v. gALINdO 	601
Cite as 278 Neb. 599

37. Constitutional Law: Criminal Law: Appeal and Error. The decision whether
a sentence is so disproportionate as to violate the Eighth Amendment in any
particular case, like other questions bearing on whether a criminal defendant’s
constitutional rights have been violated, has long been viewed as one that a trial
judge or an appellate court is fully competent to make.
38. Constitutional Law: Sentences: Juries. If state law makes a factual finding a
necessary prerequisite to imposing a greater punishment than authorized without
such a finding, then a defendant has a Sixth Amendment right to have this finding
made by a jury beyond a reasonable doubt.
39. Constitutional Law: Juries. The Sixth Amendment does not countenance legis-
lative encroachment on the jury’s traditional domain.
40. Sentences: Juries: Legislature. Considerations under Enmund v. Florida, 458
U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), and Tison v. Arizona, 481
U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987), are not facts on which the
Legislature conditions an increase in a defendant’s maximum punishment and are
not within the jury’s traditional domain.
41. Homicide: Photographs. In a homicide prosecution, photographs of a victim
may be received into evidence for the purpose of identification, to show the con-
dition of the body or the nature and extent of wounds and injuries to it, and to
establish malice or intent.
42. Criminal Law: Evidence. The State is allowed to present a coherent picture
of the facts of the crimes charged, and it may generally choose its evidence in
so doing.
43. Trial: Photographs. The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must determine their relevancy
and weigh their probative value against their prejudicial effect.
44. Sentences: Rules of Evidence. The sentencing phase is separate and apart from
the trial phase, and the traditional rules of evidence may be relaxed following
conviction so that the sentencing authority can receive all information pertinent
to the imposition of sentence.
45. Homicide: Presentence Reports: Sentences: Constitutional Law. The
Confrontation Clause does not attach to the use of presentence reports in capital
sentencing proceedings.
46. Statutes: Legislature: Intent. In the absence of clear legislative intent, the
construction of a statute will not be adopted which has the effect of nullifying
another statute.
47. Constitutional Law: Sentences. Victim impact statements considered at sentenc-
ing to show the personal characteristics of the victim or the emotional impact of
the crime on the family do not violate the U.S. Constitution.
48. ____: ____. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004), has no effect on the longstanding proposition that the right to
confrontation is inapplicable to sentencing proceedings.
Appeals from the district Court for Madison County: robert
b. eNSz, Judge. Affirmed.
602 	278 NEBRASkA REPORTS

douglas J. Stratton and Andrew d. Weeks, of Stratton &
kube, P.C., for appellant.
Jon Bruning, Attorney general, and kimberly A. klein for
appellee.
Wright, C oNNolly, gerrArd, StephAN, mCC ormACk, and
miller-lermAN, JJ., and SieverS, Judge.
mCC ormACk, J.
TABLE OF CONTENTS
I. 	Nature of Case ............................................................... 604
II. 	Background .................................................................... 605
1. Filing of Information ................................................ 605
2. Venue and Venire ...................................................... 605
3. Trial: guilt Phase ...................................................... 607
4. Aggravation Hearing ................................................. 610
5. Sentencing ................................................................. 610
III. Assignments of Error ..................................................... 612
IV. Standard of Review ........................................................ 612
V. 	Analysis ......................................................................... 613
1. Retroactive Application of L.B. 1 ............................. 613
(a) Ex Post Facto ...................................................... 614
(b) due Process ......................................................... 620
(c) Bill of Attainder .................................................. 622
2. L.B. 1 as Unconstitutional Scheme .......................... 623
(a) Inducement to Waive Jury Finding
of Aggravators ..................................................... 623
(b) Ability to Effectively Weigh Aggravating
Circumstances and Admissibility of
Record From Aggravation Hearing ..................... 625
3. Notice of Aggravation ............................................... 628
4. Jury............................................................................ 628
(a) Alleged Inappropriate “Pep Talk”to Jury ............ 629
(b) Failure to Strike Jurors for Cause ....................... 632
(c) Venue................................................................... 636
(i) 	Pretrial Publicity.......................................... 637
(ii) 	Jurors’ Statements........................................ 640
(iii) Size of Community ..................................... 641
(d) “Life Qualifying” the Venire ............................... 641
STATE v. gALINdO 	603
Cite as 278 Neb. 599

(e) Minimizing Jurors’ Role in death
Penalty determination ......................................... 643
5. Enmund/Tison ............................................................ 647
(a) Step Instruction ................................................... 651
(i) 	Separating Premeditated From
Felony Murder ............................................. 651
(ii) 	Enmund/Tison Findings as Functional
Elements of Offense .................................... 652
(b) Bill of Particulars ................................................ 657
(c) Whether Eighth Amendment Prohibits Any
of galindo’s death Penalty Sentences ................ 658
6. Evidentiary Challenges Considered during
Aggravation and Sentencing Phases ......................... 659
(a) Photograph of Lundell’s Body during
Aggravation Hearing ........................................... 660
(b) Presentence Investigation Considered by
Three-Judge Panel ............................................... 663
(c) Record From Aggravation Hearing ..................... 666
(d) Victim Statements Before Sentencing Panel ....... 666
(i) 	Nebraska Crime Victim’s Reparations Act .. 666
(ii) 	L.B. 1........................................................... 667
(iii) Confrontation ............................................... 667
(iv) Neither Nearest Surviving Relative Under
§ 30-2303 nor Contained in Presentence
Investigation Report .................................... 670
(e) Failure to Consider First degree Murder Cases
in Which defendant Was Not Sentenced
to death and “Baldus Report” ............................ 671
(i) 	Non-death-Penalty First degree
Murder Convictions ..................................... 671
(ii) 	“Baldus Report” .......................................... 673
(f) Nonstatutory Mitigators ...................................... 673
7. Electrocution as Cruel and Unusual Punishment...... 674
8. de Novo Review ....................................................... 675
VI. Conclusion ..................................................................... 675
I. NATURE OF CASE
On September 26, 2002, Jorge galindo, Erick Vela, and
Jose Sandoval entered a bank in Norfolk, Nebraska. Within 40
604 	278 NEBRASkA REPORTS

seconds, the three men had shot and killed four bank employ-
ees and one customer. When another customer walked in,
but was able to escape, the three men fled. By the time they
were apprehended, galindo, Vela, and Sandoval had broken
into two residences and stolen two vehicles, obtaining the
keys to one of the vehicles at gunpoint. This case presents
galindo’s appeal from his convictions on five counts of first
degree murder, six counts of use of a deadly weapon to com-
mit a felony, one count of robbery, and one count of burglary.
galindo was sentenced to death. galindo does not challenge
the sufficiency of the evidence to support the jury’s determina-
tion of guilt, but he presents numerous arguments as to why
he should not be subjected to the death penalty in connection
with these crimes.
II. BACkgROUNd
1. filiNg of iNformAtioN
The information against galindo was filed on October 22,
2002. The original information did not set forth the alleged
aggravating circumstances for death eligibility. However, in
response to the subsequent passage of L.B. 1,1 the State filed
an amended information on November 22, containing a notice
of aggravating circumstances, as required by the new law. The
notice alleged five aggravating circumstances: (1) galindo
had a substantial prior history of serious assaultive or terror-
izing criminal activity; (2) the murder was committed in an
effort to conceal the identity of the perpetrator; (3) the mur-
der was especially heinous, atrocious, cruel, or manifested
exceptional depravity; (4) at the time of the murder, another
murder had been committed; and (5) at the time of the murder,
galindo knowingly created a great risk of death to at least sev-
eral persons.
2. veNue ANd veNire
The 	trial 	court 	rejected 	galindo’s 	motions 	for 	change
of venue from Madison County, where Norfolk is located.
At the time of galindo’s trial, Norfolk had a population of
1 2002 Neb. Laws, L.B. 1.
STATE v. gALINdO 	605
Cite as 278 Neb. 599

approximately 25,000 people. In the months before galindo’s
trial, there had been a resurgence of publicity due to the 1-year
anniversary of the crime and due to the recent legal proceed-
ings of Vela and Sandoval. The media coverage was extensive
and included detailed accounts of the evidence adduced in the
other two legal proceedings, as well as the final verdicts of
guilty and the imposition of the death penalty against those
defendants. Coverage also included the planned memorial to
the victims, profiles of the victims’ families, and the effect
of the shootings on the community. Some people interviewed
by the media expressed their opinion that the defendants all
deserved the death penalty. A relatively small number of arti-
cles and news reports involved complaints about the financial
burden to the community, the rights given to the bank shooters,
and how long it was taking to bring them to justice.
The proposed jury list was composed of 1,615 randomly
selected members of the community, who qualified for jury
service after answering an eligibility questionnaire.2 From the
jury list, 180 people were randomly selected for a jury pool.
The 180 jury pool members were also sent a detailed supple-
mental questionnaire. Of the 156 respondents, 93 jury pool
members, or almost 60 percent, stated that they could lay aside
their impressions or opinions and render a verdict based only
on the evidence and testimony, and not on sympathy or preju-
dice. A little less than 29 percent did not believe they could be
impartial. The rest were unsure. From the jury pool, 71 people
were randomly selected for the venire. The court permitted the
parties to conduct lengthy, individual, sequestered voir dire
of each prospective juror in the venire. From the venire, 42
prospective jurors were chosen, upon which each party could
exercise 12 peremptory challenges, with 2 challenges for each
of the alternates.3
Most of the 71 potential jurors had some exposure to media
accounts relating to the bank shooting. In addition, 29 had
a direct or indirect relationship with one of the victims, 4
knew galindo’s family or his ex-girlfriend, and several were
2 See Neb. Rev. Stat. §§ 25-1628 and 25-1629 (Cum. Supp. 2004).
3 See Neb. Rev. Stat. § 29-2005 (Reissue 2008).
606 	278 NEBRASkA REPORTS

acquainted with the attorneys or law enforcement personnel
that were potential witnesses in the case.
Prior to questioning, the trial judge read for the jury an
article describing jury responsibility and the importance of
making the sacrifice to serve, despite the inconvenience it
might cause. After voir dire was completed, 29 jurors were
excused for cause, 21 of those because they admitted that they
had already decided that galindo was guilty and could not be
fair and impartial. Of those who were passed to the panel of
42, several had stated in their questionnaire that they could not
be fair and impartial, but they were not struck because they
reconsidered this position during the voir dire. Eleven opined
during voir dire that galindo was guilty. Sixteen had some rela-
tionship with the victims or their families. All of the jurors who
ultimately sat at galindo’s trial affirmed under oath that they
could decide the case based solely on the evidence presented at
trial and upon the judge’s instructions as to the law.
3. triAl : guilt phASe
galindo’s 	counsel 	did 	not 	dispute 	the 	basic 	details 	of
galindo’s 	involvement 	in 	the 	crime. 	A 	surveillance 	tape
recorded the main counter and lobby area during the robbery.
Although the surveillance tape cuts between several cameras
and has no sound, it captured most of what occurred. galindo’s
theory of defense rested on convincing the jury that the State
could not prove the statutory aggravators which would make
galindo eligible for the death penalty. He argued that the rob-
bers had never planned on harming anyone and that instead, it
was a tragic “robbery gone bad.”
The evidence showed that galindo and Sandoval had been
planning the robbery for at least a month. Sandoval was con-
sidered the “leader.” galindo recruited Vela to be the third rob-
ber, and gabriel Rodriguez, Sandoval’s half brother, had agreed
to act as a scout and driver.
galindo and Sandoval chose the particular date of the rob-
bery because they knew that the weekly deposit of cash from
an armored vehicle would have been made that morning. They
chose the particular bank branch because of its relatively small
size. The layout of the bank entailed a double-door vestibule
STATE v. gALINdO 	607
Cite as 278 Neb. 599

that led to a small mezzanine and then to the customer counter.
The drive-through service area was located just beyond the
customer counter, separated by a small partition. Small sit-
ting areas were situated directly to either side of the vestibule,
adjoined by a single office on either side.
While galindo, Vela, and Sandoval waited in an alley,
Rodriguez 	went 	into 	the 	bank 	to 	make 	a 	transaction.
Communicating 	through 	a 	walkie-talkie, 	Rodriguez 	told
Sandoval how many people were in the bank and what their
locations were at that time. A surveillance tape shows that
galindo entered the bank at approximately 8:44 a.m., with
Sandoval and then Vela closely behind him.
galindo went directly to the office on the left, which was
the office of Lola Elwood, the branch manager. Elwood was
at her desk conversing with Susan Staehr and Cheryl Cahoy,
bank employees. Sandoval went straight to the main counter
where Samuel Sun was attending to customer Evonne Tuttle.
Employee Jo Mausbach was working at the drive-through win-
dow behind Sun. Vela went directly to the right, to the office of
personal banker Lisa Bryant.
In his descriptions to law enforcement, galindo stated that
soon after entering the bank, “Sandoval got crazy” and started
yelling. galindo then heard gunshots being fired, and his gun
“went off,” shooting Elwood three times in the chest. galindo
claimed the trigger on his gun “was very sensitive.”
The surveillance tape shows Sandoval brandishing a gun
and standing at the counter in front of Sun, with Tuttle beside
him. galindo’s back can be seen in the doorway of Elwood’s
office. As Sandoval leaned against the counter, he motioned
Mausbach to him. As soon as Mausbach approached, 23 sec-
onds after the three men had entered the bank, Sandoval shot
Mausbach, Sun, and Tuttle at close range and in rapid succes-
sion. Around that same time, Vela killed Bryant, shooting her
once in her leg and again, at close range, through the back of
her neck and hand.
Sandoval then jumped over the counter in an apparent
attempt to retrieve money, but, as he did so, customer Micki
koepke walked in. koepke later recalled that when she was
walking from her car toward the building, she had heard a
distinct “pop” off to the left and another “pop” off to the right
608 	278 NEBRASkA REPORTS

of the entry, but she thought it might be construction. It had
been 37 seconds since galindo and his accomplices entered
the bank.
koepke testified that as she entered through the second set
of glass doors, it was strangely silent and she saw Sandoval
leaning against the front counter, smiling at her with a gun in
his hand. It was not until she saw something move to her left,
however, that she registered that the bank was being robbed.
koepke quickly turned and walked back out.
The movement koepke had detected was galindo standing
in Elwood’s office. galindo fired at koepke as she exited the
vestibule. glass shattered, injuring her shoulder, but koepke
was able to get to her car and call the 911 emergency dispatch
service. One of the bullets fired by galindo traveled across
the street and struck a fast-food restaurant near the drive-
through window.
In his confession to law enforcement officers, galindo
claimed he shot at koepke accidentally. galindo stated that he
saw Vela pointing his gun toward koepke and that he yelled for
Vela not to shoot. Then, according to galindo, his gun went off.
The evidence at trial demonstrated that galindo shot at koepke
at least twice, and the surveillance video shows galindo aiming
at koepke in a “modified Weaver stance.”
After koepke escaped, Sandoval jumped back over the
counter and the three fled. The tape shows galindo briefly
hesitating back toward the office where Cahoy and Staehr sat
crouched with their faces hidden, still unharmed. Cahoy later
testified that she heard someone say “hurry up” before the rob-
bers left.
galindo, Vela, and Sandoval fled on foot, having been
abandoned by Rodriguez. They broke into a house nearby, and
galindo acquired keys to a vehicle by pointing a gun at the
two women who lived there. This vehicle was eventually aban-
doned, and the trio stole another vehicle after breaking into a
house and finding the keys. Shortly after driving off with this
second vehicle and throwing their weapons out the window,
they were apprehended.
galindo eventually led law enforcement officers to where the
guns used in the robbery had been disposed of. At the officers’
STATE v. gALINdO 	609
Cite as 278 Neb. 599

request, galindo also identified a photograph of Rodriguez.
The jury found galindo guilty of all crimes charged.
4. AggrAvAtioN heAriNg
At the aggravation hearing, extensive evidence was adduced
to show galindo’s prior participation in the murder of Travis
Lundell. Lundell was Sandoval’s roommate when he was
reported missing sometime before the bank robbery. While
incarcerated, galindo eventually led law enforcement officers
to where Lundell’s body was hidden. The evidence dem-
onstrated that after galindo recruited Vela, Vela had killed
Lundell, with galindo’s assistance, in order to prove himself
worthy of the robbery scheme.
The jury also considered the State’s evidence of the agoniz-
ing nature of the victims’ deaths. Bryant’s right femur was
shattered by a bullet before she fell and was shot through her
throat and larynx, causing suffocation by blood filling her air
passages. Elwood had fractured ribs, was shot in both lungs and
her heart, and died of bleeding into her chest cavity. Mausbach
suffered injuries to her jaw and neck, which caused extensive
bleeding into her air passages, and she died from obstructed
breathing, leaving blood splatters on the wall from her cough-
ing. Sun likewise suffered bleeding into his air passages from a
fractured jaw and other internal facial injuries. He also suffered
bleeding into his chest cavity as a result of the second bullet
that pierced his ascending aorta, heart, and lung. Tuttle died of
massive disruption and bleeding in her brain, but the State’s
expert testified that she lived long enough to experience pain,
as evidenced from froth in her air passages.
The jury found all five alleged aggravators. The cause was
then put before a three-judge sentencing panel to determine
any mitigating circumstances, weigh those against the aggra-
vating circumstances found by the jury, and conduct a propor-
tionality review to determine whether the death penalty would
be imposed.
5. SeNteNCiNg
Over galindo’s objection, the panel received into evidence
galindo’s presentence investigation report and the record from
both the guilt and aggravation phases of the trial. The panel
610 	278 NEBRASkA REPORTS

also heard one representative of each of the victims’ families
read a statement describing their loss. The family representa-
tives did not comment on the crimes, galindo, or their opin-
ions as to the appropriate punishment for galindo. The family
representatives heard by the panel were Bryant’s mother, the
guardian of Bryant’s 11-year-old son; Sun’s ex-wife, mother of
their children; Tuttle’s eldest daughter; and Elwood’s husband.
The prosecutor also read for the panel a short statement writ-
ten by Mausbach’s daughter. galindo objected to the family
representatives based on the fact that the statements read were
not part of the presentence investigation report and also on the
ground that not all of the representatives qualified as a “nearest
surviving relative” under Neb. Rev. Stat. § 29-119 (Cum. Supp.
2004). His objections were overruled.
The sentencing panel refused galindo’s request that it con-
sider, in its proportionality review, other first degree mur-
der cases in which the death penalty was not imposed. The
panel also refused to consider evidence referred to as the
“Baldus Report.”
galindo made numerous objections to the imposition of
the death penalty, which were rejected by the trial court. He
objected to electrocution as an unconstitutional method of
imposing the death penalty. He also argued that due to the U.S.
Supreme Court’s decision in Ring v. Arizona,4 there was no
death penalty at the time the crimes were committed and that
the death penalty could not be retroactively applied.
The panel found no statutory mitigating circumstances.
It 	considered 	the 	nonstatutory 	mitigating 	circumstance 	of
galindo’s cooperation with the criminal investigation, but the
panel determined that this mitigating circumstance was “off-
set” by a lack of remorse, an attempted escape, and other mis-
behavior while incarcerated. The panel found that the aggravat-
ing circumstances outweighed the mitigating circumstances
and sentenced galindo to death for each of the five murders.
Additional facts relating to galindo’s trial will be discussed in
our analysis section below.
4 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002).
STATE v. gALINdO 	611
Cite as 278 Neb. 599

III. ASSIgNMENTS OF ERROR
galindo asserts, consolidated and restated, that the trial
court erred in (1) finding that the retroactive application of
L.B. 1 did not violate ex post facto principles, due process,
or the prohibition against bills of attainder; (2) failing to find
that the absence of notice of aggravation in the original infor-
mation violated due process; (3) failing to find that L.B. 1
was an unconstitutional inducement to waive a jury finding
of aggravating circumstances; (4) failing to grant a motion to
quash the information that alleged alternative theories of first
degree murder; (5) overruling galindo’s step instruction on
felony murder; (6) overruling galindo’s motions for change
of venue; (7) making inappropriate comments to the venire
prior to jury selection that emphasized their duty to serve as
jurors; (8) informing the jury during voir dire that it would
have no role in sentencing; (9) failing to allow galindo to
“‘life qualify’”5 the venire; (10) failing to strike certain jurors
for cause; and (11) receiving into evidence a photograph of
Lundell’s body.
galindo asserts that the sentencing panel erred in (12)
considering the presentence investigation as part of weighing
the aggravating and mitigating circumstances; (13) failing to
receive as evidence, for purposes of the panel’s proportionality
review, sentencing orders from first degree murder cases where
the death penalty was not imposed; (14) allowing consideration
of the victim impact statements; and (15) sentencing him to
electrocution, which is cruel and unusual punishment.
IV. STANdARd OF REVIEW
[1] Statutory interpretation presents a question of law, and
an appellate court resolves such issues independently of the
lower court’s conclusions.6
5 Brief for appellant at 94.
6 State v. Epting, 276 Neb. 37, 751 N.W.2d 166 (2008); State v. Jim, 275
Neb. 481, 747 N.W.2d 410 (2008); State v. Bossow, 274 Neb. 836, 744
N.W.2d 43 (2008); State v. McKinney, 273 Neb. 346, 730 N.W.2d 74
(2007).
612 	278 NEBRASkA REPORTS

[2] The retention or rejection of a venireperson as a juror
is a matter of discretion with the trial court and is subject to
reversal only when clearly wrong.7
[3] A motion for change of venue is addressed to the dis-
cretion of the trial judge, whose ruling will not be disturbed
absent an abuse of discretion.8
V. ANALYSIS
We first address galindo’s challenges to L.B. 1. galindo
asserts that the State should never have charged and tried him
under this statutory scheme. He argues that the previous statu-
tory scheme, with the death penalty provisions redacted, was
the law applicable to his crimes.
1. retroACtive A ppliCAtioN of l.b. 1
Now, as at the time of the bank robbery, a defendant found
guilty of first degree murder can be sentenced to death only
if one of the enumerated aggravating circumstances is found.9
Without any aggravating circumstances, the sentence is life
imprisonment.10 The ultimate decision of whether to impose
the death penalty when the defendant is found “death eligible”
depends on whether the aggravating circumstances outweigh
mitigating circumstances, as well as a proportionality review.11
At the time of the bank robbery, the statutory scheme com-
mitted to the judge, and not a jury, both the capital sentenc-
ing factfinding of any aggravating and mitigating circum-
stances and the ultimate sentencing decision.12 Approximately
3 months before the bank robbery took place, however, the
U.S. Supreme Court had concluded in Ring13 that the Sixth
Amendment entitled capital defendants to a jury determination
7 State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
8 Id.
9 Neb. Rev. Stat. § 29-2519 (Reissue 2008).
10 Id.
11 See Neb. Rev. Stat. § 29-2522 (Reissue 2008).
12 § 29-2522.
13 Ring v. Arizona, supra note 4.
STATE v. gALINdO 	613
Cite as 278 Neb. 599

of any fact on which the Legislature conditions an increase in
their maximum punishment.
After the robbery, but before galindo’s trial, the Legislature
enacted L.B. 1, which did not change the nature of the statu-
tory aggravating circumstances that make a defendant death
eligible. But, it provided that the existence of any of these cir-
cumstances must be determined by a jury, instead of a judge,
unless this right is waived by the defendant. galindo was tried
in accordance with L.B. 1. galindo now argues that the imposi-
tion of the death penalty under L.B. 1 violated due process and
the principles prohibiting ex post facto laws. He also argues
L.B. 1 was an unlawful bill of attainder. He argues that these
are issues of first impression, because in his case, the crimes
were committed after Ring, but before L.B. 1.
(a) Ex Post Facto
[4-7] Any statute which punishes as a crime an act previ-
ously committed which was innocent when done, which makes
more burdensome the punishment for a crime after its com-
mission, or which deprives one charged with a crime of any
defense available according to law at the time when the act was
committed is prohibited as ex post facto.14 The Ex Post Facto
Clause does not, however, extend to limit legislative control of
remedies and modes of procedure which do not affect matters
of substance.15 Thus, statutes governing substantive matters in
effect at the time of a crime govern, and not later enacted stat-
utes.16 In contrast, the procedural statutes in effect on the date
of a hearing or proceeding govern, and not those in effect when
the violation took place.17
[8-10] A change in law will be deemed to affect matters
of substance where it increases the punishment or changes
the ingredients of the offense or the ultimate facts necessary
14 Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30
(1990).
15 Beazell v. Ohio, 269 U.S. 167, 46 S. Ct. 68, 70 L. Ed. 216 (1925).
16 See id.
17 See id.
614 	278 NEBRASkA REPORTS

to establish guilt.18 In other words, a rule is substantive if it
alters the range of conduct or the class of persons that the law
punishes.19 In contrast, rules that regulate only the manner of
determining a defendant’s culpability are procedural.20
In Ring, the U.S. Supreme Court addressed a defendant’s
death sentence under an Arizona statutory scheme whereby the
jury adjudicated guilt of first degree murder, but for imposition
of the death penalty, the judge determined the presence or
absence of the enumerated aggravating factors required under
the statute. The Court held that if a state makes an increase in
a defendant’s authorized punishment contingent on a finding of
fact, then such fact must be found by a jury beyond a reason-
able doubt.21 The aggravating circumstances under Arizona’s
statutory scheme were, the Court explained, “‘the functional
equivalent of an element of a greater offense’”22 for purposes
of the defendant’s Sixth Amendment right to a trial by jury.
Thus, because the aggravating circumstances had been found
by a judge, the Court reversed the Arizona Supreme Court’s
decision affirming the conviction.
Because our statutory scheme, like Arizona’s, commit-
ted to the judge or three-judge panel the determination of
aggravating circumstances necessary to impose the death
penalty, the Nebraska Legislature passed L.B. 1 to provide
the right to a jury’s finding of aggravating circumstances
in a separate “aggravation hearing.”23 The determination of
mitigating circumstances and the ultimate decision to impose
the death penalty remain with the sentencing judge or three-
judge panel.24
18 Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884).
19 Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442
(2004).
20 Id.
21 Ring v. Arizona, supra note 4.
22 Id., 536 U.S. at 609.
23 Neb. Rev. Stat. § 29-2520 (Reissue 2008).
24 Neb. Rev. Stat. § 29-2521 (Reissue 2008).
STATE v. gALINdO 	615
Cite as 278 Neb. 599

[11] galindo argues that because aggravating circumstances
are the functional equivalents of an element of a greater offense,
then a change in who determines whether those elements exist
is a substantive and not a procedural change. This argument
has already been rejected. In State v. Gales,25 we held that the
change in L.B. 1 regarding which fact finder should determine
death eligibility was a procedural change and not a change in
substance. In Gales, the defendant, Arthur Lee gales, had com-
mitted first degree murder prior to both Ring and L.B. 1, but
his appeal from his death penalty conviction was still pending
when Ring was decided and L.B. 1 was passed. Because gales’
sentence was not yet final, we found Ring applicable, and
reversed his conviction and remanded the cause for resentenc-
ing. In so doing, we rejected gales’ arguments that he could
not be resentenced to death, because L.B. 1 did not exist at the
time of his crime.
In concluding that the death penalty provisions of L.B. 1
were procedural in nature, we noted that L.B. 1 did not make
any change to the provisions defining the aggravating or miti-
gating circumstances relevant to the death penalty determina-
tion. Furthermore, L.B. 1 did not change the degree of punish-
ment, the character of the offense, or the rules of evidence. We
summarized that L.B. 1, as applicable to the death penalty, in
fact did nothing more than reassign from judges to juries the
responsibility for determining the existence of any aggravating
circumstances. It merely changed the manner of determining
the defendant’s culpability.26
[12] In Schriro v. Summerlin,27 the U.S. Supreme Court
likewise explicitly rejected the argument that changes man-
dated by Ring were substantive rather than procedural. The
Court explained that statutory aggravators were only “effec-
tively”28 elements of the offense for Sixth Amendment purposes.
The aggravating circumstances were therefore “subject to the
25 State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
26 Id.
27 Schriro v. Summerlin, supra note 19.
28 Id., 542 U.S. at 354 (emphasis in original).
616 	278 NEBRASkA REPORTS

procedural requirements the Constitution attaches to trial of
elements.”29 However, the Court explained: “[H]olding that,
because Arizona has made a certain fact essential to the death
penalty, that fact must be found by a jury, is not the same as
this Court’s making a certain fact essential to the death pen-
alty.”30 Ring did not “alter the range of conduct the statute
punishes, rendering some formerly unlawful conduct lawful or
vice versa.”31 It is a limited holding that a jury, and not a judge,
must decide those facts which a state legislature had already
determined to be essential to a sentence of death.
In State v. Mata (Mata I),32 we reaffirmed our holding that
L.B. 1’s changes were procedural in nature. Raymond Mata,
Jr., like gales, had committed his crimes and had been tried
before Ring was decided, but his appeal was still pending when
Ring and L.B. 1 had passed. Unlike gales, however, Mata
had not argued to the trial court that he was entitled to a jury
determination of aggravating circumstances. On appeal, we
held that it was plain error to fail to have the jury determine
death eligibility.
But, in State v. Mata (Mata II),33 we rejected Mata’s argu-
ment that Ring had retroactively invalidated Nebraska’s capital
sentencing statutes that were in effect when he committed the
murder and that he was thus subject only to life imprisonment.
In so doing, we discussed the U.S. Supreme Court’s decision
in Dobbert v. Florida.34 In Dobbert, the defendant argued that
because the Court had since declared unconstitutional the statu-
tory methods to determine the death penalty that were in effect
at the time of the defendant’s crime and his trial, the state
had not lawfully sentenced him to death under the original
statute. Accordingly, the defendant argued that even though
29 Id. (emphasis supplied).
30 Id. (emphasis in original).
31 Id.
32 State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other
grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
33 State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
34 Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L. Ed. 2d 344
(1977).
STATE v. gALINdO 	617
Cite as 278 Neb. 599

the changes in the new statute were procedural, they were ex
post facto because they provided what did not exist before—a
constitutional procedure for imposing the death penalty. The
U.S. Supreme Court opined: “[T]his sophistic argument mocks
the substance of the Ex Post Facto Clause.”35 The Court’s prior
holding and the statutory amendment passed pursuant thereto
“simply altered the methods employed in determining whether
the death penalty was to be imposed; there was no change in
the quantum of punishment attached to the crime.”36
galindo argues that his case is distinguishable from these
cases. galindo claims this is so because when he committed
his crimes, the U.S. Supreme Court had already announced
its decision in Ring. This decision, galindo argues, immedi-
ately “invalidated”37 the death penalty portions of Nebraska’s
law governing first degree murder. And since the Nebraska
Legislature had not yet passed L.B. 1 when galindo attempted
to rob the bank, his crimes occurred during a brief moment
when there was no death penalty in Nebraska. According to
galindo, the change we must consider in our ex post facto
analysis is not from the previous death penalty scheme to the
modified death penalty scheme in L.B. 1, but from a scheme
where the maximum punishment was life imprisonment to a
scheme that included the death penalty.
[13] While the previously discussed case law may not share
the precise timing anomaly that galindo finds so significant,
we conclude it applicable nonetheless. Ring invalidated a par-
ticular procedure for determining death eligibility at trial, but it
did not invalidate the death penalty.
A similar argument was addressed in dicta by the Idaho
Supreme Court in State v. Lovelace.38 The defendant in Lovelace
argued that Ring invalidated the state’s death penalty scheme,
and the remaining valid portions, which provided for life
imprisonment, became controlling until a new statute was
35 Id., 432 U.S. at 297.
36 Id., 432 U.S. at 293-94.
37 Brief for appellant at 28.
38 State v. Lovelace, 140 Idaho 53, 90 P.3d 278 (2003).
618 	278 NEBRASkA REPORTS

enacted. He argued that both ex post facto and due process
prohibited resentencing under the new statute enacted prior to
his convictions’ becoming final. In rejecting this argument, the
court explained that regardless of whether the defendant com-
mitted the crime before or after Ring’s pronouncement, Ring
simply did not invalidate the death penalty as the maximum
punishment for first degree murder. Ring invalidated nothing
more than the identity of the fact finder to determine whether
aggravating circumstances exist.
galindo’s underlying premise that Ring invalidated the death
penalty in Nebraska is even more untenable in light of a careful
observation of our death penalty statutes as they existed at the
time Ring was decided. A lengthy series of statutes governed
the death penalty. Neb. Rev. Stat. § 28-303 (Reissue 1995)
stated that murder in the first degree shall be punished as a
Class I or Class IA felony in accordance with Neb. Rev. Stat.
§§ 29-2520 to 29-2524 (Reissue 1995 & Cum. Supp. 2006).
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2006) stated that the
maximum punishment for a Class I felony was death, while the
maximum punishment for a Class IA felony was life impris-
onment. Section 29-2519 (Reissue 1995) stated that it was
necessary to establish mandatory standards for the imposition
of the death sentence and that it should be imposed only for
first degree murder in instances when the aggravating circum-
stances outweigh the mitigating circumstances as set forth in
§§ 29-2520 to 29-2524. Section 29-2523, in turn, defined the
statutory aggravating and mitigating circumstances applicable
in determining whether the death penalty should be imposed.
And Neb. Rev. Stat. §§ 29-2521.01 to 29-2521.04 (Reissue
1995 & Cum. Supp. 2006) expressed the policy that the death
penalty should not be imposed arbitrarily and set forth the pro-
cedure for automatic appeal to our court.
[14] Of all the statutes composing our death penalty scheme
and referring to the death penalty as the maximum punishment
for first degree murder, only one, § 29-2522, dealt with who
should make the determination of the aggravating circum-
stances. Thus, only § 29-2522 violated the principles of jury
factfinding set forth by Ring. It would have been unreason-
able to conclude that Ring called into question the remaining
STATE v. gALINdO 	619
Cite as 278 Neb. 599

provisions of the Nebraska death penalty scheme. The invalid-
ity of a single provision purely procedural in nature does not
automatically invalidate the underlying punishment to which
that procedure applies.
Our conclusion that Ring did not invalidate the death penalty
is consistent with our reasoning in Mata II.39 In that case, we
invalidated electrocution as the method of imposing the death
penalty. We were thus faced with whether Mata’s sentence of
death could stand under a scheme that, as of that moment,
had no constitutional means of carrying out the sentence.
We affirmed the death penalty as the maximum punishment
under Nebraska law. We reasoned that the statutes specifying
the mode of inflicting the death penalty were separate and
severable from other provisions of the death penalty scheme.
Therefore, despite the fact that there was no constitutional
means to carry out a death sentence, the sentence itself was
not invalid. Similarly, despite the fact that during the months
between Ring and L.B. 1, there was no constitutional procedure
to determine death eligibility in a trial for first degree murder,
it does not follow that Nebraska law no longer provided for
the death penalty as the maximum punishment at the time of
galindo’s crimes. Section 29-2522, which listed the judge or
three-judge panel as the fact finder for aggravating circum-
stances, was separate and severable from the remaining statutes
pertaining to the death penalty scheme.
(b) due Process
Invoking due process principles, galindo argues that the
citizenry was on notice at the time of his crime that Ring
had removed the death penalty from Nebraska law and that
the Legislature had chosen not to reenact capital punish-
ment. Based on the above discussion, we find no merit to
this argument.
galindo’s principal due process argument, however, stems
from Coleman v. McCormick,40 a case considering whether a
defendant was given a fair opportunity to defend the relevant
39 Mata II, supra note 33.
40 Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989).
620 	278 NEBRASkA REPORTS

issues at trial. In Coleman, the court held that the state’s
retroactive application of procedural changes to the death
penalty statute violated fundamental principles of procedural
due process.
The defendant in Coleman was originally tried and convicted
under a statute which provided for a mandatory death sentence
whenever the defendant was found guilty of aggravated kid-
napping. On appeal, the state supreme court held the law was
unconstitutional, because it did not allow the trial court to
consider any mitigating circumstances. It remanded the cause
with directions to resentence in accordance with a new statute
enacted in the interim, which listed aggravated kidnapping as
an aggravating circumstance. The new law also provided for the
consideration of mitigating circumstances upon review of the
trial record. Without a new trial on guilt, the court on remand
reviewed the trial record and again sentenced the defendant to
death. The Ninth Circuit Court of Appeals held that resentenc-
ing deprived the defendant of procedural due process, because
the defendant did not know at the time he put on his defense in
trial that the evidence would later be used to determine mitigat-
ing circumstances. The court explained:
The defendant is due at least that amount of process
which enables him to put on a defense during trial
knowing what effect such a strategy will have on the
subsequent capital sentencing, the results of which may
be equally if not more critical to the defendant than the
conviction itself.41
Because the defendant “made countless tactical decisions at
trial aimed solely at obtaining [his] acquittal, without even a
hint that evidence . . . would be considered as either mitigat-
ing or aggravating factors,”42 the due process violation was
pervasive and not harmless error, and the court vacated the
defendant’s death sentence.
Even assuming the Ninth Circuit Court of Appeals was
correct in categorizing the legislative change in that case as
merely procedural in nature, we find Coleman to be wholly
41 Id. at 1288.
42 Id. at 1289.
STATE v. gALINdO 	621
Cite as 278 Neb. 599

inapplicable to the case at bar. When galindo was tried, he
was given fair notice of both the aggravating and mitigating
circumstances to be weighed in the panel’s sentencing deci-
sion. The State amended the information to advise galindo it
was proceeding under L.B. 1 a year before his trial. We find no
merit to galindo’s due process arguments against the applica-
tion of L.B. 1.
(c) Bill of Attainder
galindo alternatively argues that L.B. 1, and the death pen-
alty, cannot be applied against him because L.B. 1 constitutes a
bill of attainder. galindo asserts L.B. 1 was enacted as a direct
response to the Norfolk killings and was thus “‘improperly
motivated,’”43 in violation of U.S. Const. art. I, § 10 (“[n]o
State shall . . . pass any Bill of Attainder”), and Neb. Const.
art. I, § 16 (“[n]o bill of attainder . . . shall be passed”).
[15,16] Only the clearest proof suffices to establish the
unconstitutionality of a statute as a bill of attainder.44 A bill
of attainder is a legislative act which applies to named indi-
viduals or to easily ascertained members of a group in such a
way as to inflict punishment on them without a judicial trial.45
The bill of attainder provision prohibits trials by a legislature,
and it forbids the imposition of punishment by the legislature
on specific persons.46 Stated differently, it proscribes legis-
lation which singles out disfavored persons and carries out
summary punishment for past conduct.47 The bill of attainder
clause was intended as an implementation of the separation
of powers, a general safeguard against legislative exercise
of the judicial function.48 It reflected the framers’ belief that
43 Brief for appellant at 36.
44 Communist Party v. Control Board, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d
625 (1961).
45 State v. Palmer, 257 Neb. 702, 600 N.W.2d 756 (1999).
46 Id.
47 Id. See, also, Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct.
1483, 128 L. Ed. 2d 229 (1994).
48 United States v. Brown, 381 U.S. 437, 85 S. Ct. 1707, 14 L. Ed. 2d 484
(1965).
622 	278 NEBRASkA REPORTS

the legislative branch is not so well suited as are politically
independent judges and juries to the task of ruling upon the
blameworthiness of, and levying appropriate punishment upon,
specific persons.49
[17] L.B. 1 is not a bill of attainder. By its terms, L.B. 1 does
not focus on any particular person or persons, but is properly
focused on prohibited conduct applicable equally to everyone.
We also note that, in reality, L.B. 1 did not “inflict punish-
ment” at all—in the sense that it did not inflict anything differ-
ently against anyone than had been the case before.
[18] galindo’s principal argument that L.B. 1 is a bill of
attainder is that the particular timing of its passage was spurred
by the occurrence of the bank robbery. Even if true, we find
this to be of no consequence. In order for a legislative enact-
ment to be deemed a bill of attainder, it must (1) specify the
affected persons, (2) inflict punishment, and (3) lack a judicial
trial.50 L.B. 1 does not qualify as a bill of attainder under any
of these criteria.
2. l.b. 1 AS uNCoNStitutioNAl SCheme
galindo 	also 	presents 	various 	facial 	challenges 	to
L.B. 1. These arguments have largely already been addressed
by our court in State v. Hessler,51 and we conclude they have
no merit.
(a) Inducement to Waive Jury Finding
of Aggravators
galindo asserts that under the principles announced in
United States v. Jackson,52 L.B. 1 presents an unconstitutional
inducement to waive his right to a jury finding of aggravating
circumstances. Specifically, galindo asserts that the most accu-
rate weighing of aggravating against mitigating circumstances
49 Id.
50 Id. See, also, Selective Service v. Minn. Public Int. Res. Gp., 468 U.S. 841,
104 S. Ct. 3348, 82 L. Ed. 2d 632 (1984); State v. Palmer, supra note 45.
51 State v. Hessler, supra note 7.
52 United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138
(1968).
STATE v. gALINdO 	623
Cite as 278 Neb. 599

can only be achieved when the same entity making the sen-
tencing determination has heard all of the evidence relevant
to the finding of aggravating circumstances. Because the other
two judges of the sentencing panel do not preside over a jury
aggravation hearing, exercise of that right results in two judges
being less informed than they would have been had galindo
waived the jury findings of aggravating circumstances. galindo
also complains that only when a judicial panel makes the find-
ing of aggravating circumstances does the statutory scheme
require written, unanimous findings of the facts supporting
the determination.
In Jackson, the U.S. Supreme Court found unconstitutional
a federal statutory provision that permitted capital punish-
ment only when the defendant was tried by a jury and the jury
recommended the death sentence. If the defendant waived the
right to a jury trial or pled guilty, then the maximum punish-
ment was life imprisonment. The Court held that the statute
improperly coerced or encouraged the defendant to waive the
Sixth Amendment right to a jury or the Fifth Amendment right
to plead not guilty and that it needlessly penalized the defend-
ant who asserted such rights.
The argument that L.B. 1, like the scheme considered in
Jackson, penalizes a defendant’s exercise of the right to have a
jury finding of aggravating circumstances was recently rejected
in Hessler.53 We concluded that the Nebraska death penalty
scheme “does not improperly coerce or encourage a defend-
ant to waive his or her right to a jury and does not penalize
a defendant who asserts such right.”54 Unlike the provision in
Jackson, whereby the defendant could completely avoid the
death penalty by waiving a jury trial, “[u]nder the Nebraska
statutes, there is no such direct benefit achieved at the expense
of waiving the right to a jury . . . .”55
In particular, we explained that “[w]hile the sentencing
panel might be more thoroughly versed about the case if it
53 State v. Hessler, supra note 7.
54 Id. at 503, 741 N.W.2d at 425.
55 Id.
624 	278 NEBRASkA REPORTS

had also found aggravating circumstances, this does not mean
that the sentencing panel would necessarily make a sentencing
decision that was more favorable to the defendant.”56 And we
similarly found no constitutional significance to the fact that
the jurors are not required to unanimously agree on every fac-
tual predicate that may have led to their (unanimous) finding of
an aggravating circumstance.
[19] galindo attempts to illustrate that when the jury deter-
mined the Norfolk murders were especially heinous, atrocious,
cruel, or manifested exceptional depravity, he had no way of
knowing, based on the instructions given to the jury, whether
the jury based its decision on findings of the victims’ mental
anguish or on the conclusion that galindo relished the mur-
ders. But galindo fails to explain how such specific knowledge
would be useful to him. The U.S. Supreme Court in Schad v.
Arizona57 explained there is no constitutional mandate that the
underlying facts of the crime be unanimously agreed upon by
the jury: “‘[d]ifferent jurors may be persuaded by different
pieces of evidence, even when they agree upon the bottom
line. Plainly, there is no general requirement that the jury reach
agreement on the preliminary factual issues which underlie
the verdict.’” We find no reason to reconsider our decision in
Hessler, and we conclude that whatever advantage written fac-
tual findings by the jury might provide, it is a far cry from the
advantage considered unconstitutional in Jackson.
(b) Ability to Effectively Weigh Aggravating
Circumstances and Admissibility of
Record From Aggravation Hearing
galindo’s next argument is that L.B. 1 is unconstitutional
because it provides for no means by which the nonpresiding
judges of the sentencing panel can properly weigh the aggra-
vating circumstances found by a jury against the mitigating
circumstances found by the panel. galindo comes to this con-
clusion after strictly reading L.B. 1 so as to prohibit the panel’s
56 Id.
57 Schad v. Arizona, 501 U.S. 624, 631-32, 111 S. Ct. 2491, 115 L. Ed. 2d
555 (1991).
STATE v. gALINdO 	625
Cite as 278 Neb. 599

consideration of the record from the aggravation hearing. Thus,
galindo argues it was error for the panel in his trial to receive
the aggravation record. At the same time, galindo asserts it
is impossible for the panel to weigh the aggravating circum-
stances against mitigating circumstances unless the aggrava-
tion record is considered. In sum, galindo seeks to create a
Catch-22 that would place the statutory scheme in violation of
due process. We have already held, in Hessler, that the record
from the aggravation hearing is admissible. Thus, there is no
“unworkable”58 scheme.
Section 29-2521(3) states that if the jury has determined
the aggravating circumstances, then the panel must next hold
a hearing to determine any mitigating circumstances. And
at that hearing, the panel may receive “any matter that the
presiding judge deems relevant to (a) mitigation, including,
but not limited to, the mitigating circumstances set forth in
section 29-2523, and (b) sentence excessiveness or dispropor-
tionality as provided in subdivision (3) of section 29-2522.”59
galindo’s argument is that the aggravation hearing record is
not “relevant” to mitigation, sentence excessiveness, or dispro-
portionality and that its consideration is therefore prohibited
by L.B. 1.60
galindo’s strained attempt to demonstrate an unconstitu-
tional scheme runs contrary to our rules of statutory construc-
tion that afford a presumption of constitutionality to legislative
enactments. Also, we give statutes a sensible construction in
light of the object sought to be accomplished, the evils and
mischiefs sought to be remedied, and the purpose sought to
be served.61 In Hessler, we said: “[T]he death penalty stat-
utes read as a whole make clear that the sentencing panel
needs to consider evidence of the crime and of aggravating
circumstances in order to properly perform its balancing and
58 Brief for appellant at 42.
59 § 29-2521(3).
60 Brief for appellant at 40.
61 See, State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002); State v. Hookstra,
263 Neb. 116, 638 N.W.2d 829 (2002).
626 	278 NEBRASkA REPORTS

proportionality sentencing functions.”62 Moreover, we noted
that under § 29-2522, the sentencing panel is required to
“‘consider[] both the crime and the defendant’”63 in determin-
ing whether aggravating circumstances justify imposition of
a death sentence, whether mitigating circumstances exceed
or approach the weight of aggravating circumstances, and
whether a death sentence is excessive or disproportionate to
the penalty imposed in similar cases. We explained in Hessler
that the records of the guilt and aggravation phases of the
trial clearly have probative value regarding the crime and
the defendant.
[20-22] galindo makes a further attempt at his Catch-22
by asserting that the aggravation hearing record was inadmis-
sible because it violated his right to confrontation. The Sixth
Amendment to the U.S. Constitution guarantees the right of
an accused in a criminal prosecution “to be confronted with
the witnesses against him,” and the main and essential pur-
pose of confrontation is to secure the opportunity of cross-
examination.64 galindo was in fact given the right to confront
all the witnesses during the guilt and aggravation phases of
his trial, and thus, as a threshold matter, it does not appear
that the Confrontation Clause is implicated by receipt of the
trial record. Also, as will be discussed in further detail below,
we have held that the right to confrontation is not appli-
cable to the sentencing phase of a criminal trial.65 Although
a defendant is entitled to due process upon sentencing, the
U.S. Constitution does not require that he or she be given
the full panoply of rights accorded when the issue is guilt
or innocence.66
We conclude that galindo has failed to demonstrate that the
record from the aggravation hearing was inadmissible. And we
62 State v. Hessler, supra note 7, 274 Neb. at 513, 741 N.W.2d at 431-32.
63 Id. at 513, 741 N.W.2d at 432.
64 State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
65 State v. Cook, 236 Neb. 636, 463 N.W.2d 573 (1990). See, also, State v.
Barker, 227 Neb. 842, 420 N.W.2d 695 (1988).
66 State v. Miller, 221 Neb. 862, 381 N.W.2d 156 (1986).
STATE v. gALINdO 	627
Cite as 278 Neb. 599

find no merit to galindo’s attacks on L.B. 1 that revolve around
the sentencing panel’s consideration of the record from the
aggravation hearing.
3. NotiCe of AggrAvAtioN
As an alternative to his argument that he should not have
been charged and tried under L.B. 1, galindo argues that the
information against him was defective because it failed to com-
ply with L.B. 1. galindo argues that L.B. 1 demands that the
original information contain a notice of aggravation, and that,
as his did not, he cannot be sentenced to death.
The original information against galindo did not contain a
notice of aggravation because, at the time it was filed, the statu-
tory scheme did not require such notice. An amended informa-
tion containing the required notice of aggravation under the
newly enacted Neb. Rev. Stat. § 29-1603(2)(a) (Reissue 2008)
was filed the same day that L.B. 1 was enacted.
[23] Leaving aside whether galindo correctly interprets
§ 29-1603, we observe that galindo is demanding strict com-
pliance with a procedural rule before it even existed. We apply
our reasoning in Mata I67 and Gales,68 wherein we remanded
the cause for resentencing under L.B. 1, despite the fact that
the information against the defendants did not contain a notice
of aggravation. The notice of aggravation is a procedural rule,
and while procedural statutes do apply to pending litigation,
it is a general proposition that “new procedural statutes have
no retroactive effect upon any steps that may have been taken
in an action before such statutes were effective. . . . All things
performed and completed under the old law must stand.”69 We
find no error stemming from the fact that the original informa-
tion did not contain a notice of aggravation.
4. Jury
Having established that galindo was properly charged under
L.B. 1, we turn next to galindo’s argument that he was not
67 Mata I, supra note 32.
68 State v. Gales, supra note 25.
69 Id. at 635, 658 N.W.2d at 631 (citation omitted).
628 	278 NEBRASkA REPORTS

tried by a fair and impartial jury. galindo’s pretrial motions for
change of venue were denied. galindo alleges that the scale of
the crimes, the publicity, and the relatively small population of
the county where the crimes occurred made it impossible for
him to be tried fairly there. galindo claims, due to these dif-
ficulties, the trial court improperly tried to influence the venire
in order to obtain jurors who would state their willingness to be
impartial. galindo also claims the trial court refused to excuse
for cause many jurors who had demonstrated they could not be
fair and impartial.
(a) Alleged Inappropriate “Pep Talk” to Jury
galindo argues that the judge made inappropriate comments
to the venire prior to the individual voir dire. He alleges that
these comments were designed to convince jurors who did
not want to be on the jury panel to sit, and he alleges that
jurors were clearly influenced by the comments. According to
galindo, the trial court’s comments violated his right to due
process and a fair trial.
Prior to examination of the 71 potential jurors, the trial
judge made the following remarks:
Before we get started, I’d like to make a few comments
about jury duty generally. Many times we just show a
video; I’m not going to show a video today of the trial
process. This is a bit of a unique trial, but I just want to
talk to you generally about jury duty.
I believe that some people perceive jury duty as
being an inconvenience and an imposition in their work
and daily lives. Some see it as a sacrifice that they
are unwilling to make and find ways to seek to avoid
jury service.
However, the greatest sacrifice was made by this coun-
try’s founding fathers who by the 6th Amendment to the
U.S. Constitution established the right of the accused to a
trial by a jury of his or her peers and by the fighting men
and women of our armed forces who have maintained that
right since 1791.
There was an article that appeared in the Omaha World
Herald a few years ago. It was written by an individual by
STATE v. gALINdO 	629
Cite as 278 Neb. 599

the name of Phillip Bissett who was a former member of
the House Judiciary Committee of the Maryland general
Assembly. I think that this is instructive and it gives a
good insight into jury duty responsibility. It was written
for Memorial day, but I think it has meaning for any of
us this day or any other day, and I’d like to read a portion
of that article to you.
. . . Bissett states, “The right to a trial by jury after all
is one of the fundamental freedoms that Americans have
fought and died for since the founding of our Republic.
In a nation ruled by laws, not tyrants, jury duty ought
to be considered a sacred obligation. Serving on a jury
is one of the most important ways every American can
serve his,” and I’ll add “or her country. Our justice
system depends on citizens who answer the call of jury
service. When you are selected to serve on a jury, you
become an active participant in insuring fair and bal-
anced justice in your community. Citizens with doubts
about jury service should consider the words of Thomas
Jefferson, ‘The jury is the only anchor ever yet imag-
ined by man by which a government can be held to the
principles of its Constitution. The jury is the ultimate
safeguard of our civil rights.’ The American fighting
men and women died safeguarding our civil rights. We
dishonor their memory by not fulfilling the civil respon-
sibilities that go hand in hand with those civil rights. If
you’re called to serve on a jury this year, remember it’s
far from the ultimate sacrifice. Step forward with pride
and serve. It’s a chance to participate in democracy
that most of the world’s 6.3 billion people would love
to have.”
galindo’s counsel did not object to these comments at the
time they were made. On the third day of voir dire, however,
galindo’s counsel objected to the comments as denying his
right to select a fair jury. The court overruled the objection,
explaining that “[d]ifferent judges have different introductory
comments . . . . I see nothing that prohibits that . . . .” The
judge further explained that the comments were simply an
instruction on juror responsibility.
630 	278 NEBRASkA REPORTS

Assuming galindo’s objection was timely made,70 we agree
with the trial court. galindo points out the proposition that
“trial courts should refrain from commenting on evidence or
making remarks prejudicial to a litigant or calculated to influ-
ence the minds of the jury.”71 But it is absurd to imply that the
trial judge is prohibited from influencing the jury in any man-
ner whatsoever.
In State v. Bjorklund,72 we held that the trial judge did not
violate the defendant’s right to due process and a fair trial
when the judge told the jury before deliberations, “‘god be
with us.’” We explained:
The trial judge made no comment on the evidence, the
law, or the defendant, and, as noted in the reviewing
judge’s findings, the jurors did not interpret his words as
such. The phrase “god be with us” did not enhance the
credibility of any witness, serve as an instruction on rea-
sonable doubt, or in any way suggest to the jurors what an
appropriate verdict would be in this case.73
Thus, it is clear that the influence prohibited is of a nature that
encroaches upon the juror’s role as the fact finder and arbiter of
guilt. We conclude that the trial judge’s comments to the venire
for galindo’s trial were not inappropriate.
Furthermore, we find nothing prejudicial in judicial com-
mentary about the importance of jury duty in our judicial sys-
tem. To establish reversible error, a defendant must demonstrate
that a trial court’s conduct, whether action or inaction during
the proceeding against the defendant, prejudiced or otherwise
adversely affected a substantial right of the defendant.74 As the
court explicitly stated, the comments were directed at the pos-
sible attitude that jury duty is an inconvenience. To dissuade a
70 See State v. Rodriguez, 244 Neb. 707, 509 N.W.2d 1 (1993).
71 See, State v. Duncan, 265 Neb. 406, 412, 657 N.W.2d 620, 627 (2003).
Accord State v. Chapman, 234 Neb. 369, 451 N.W.2d 263 (1990).
72 State v. Bjorklund, 258 Neb. 432, 442, 604 N.W.2d 169, 189 (2000), abro-
gated on other grounds, Mata II, supra note 33.
73 Id. at 503, 604 N.W.2d at 225.
74 State v. Duncan, supra note 71; State v. Privat, 251 Neb. 233, 556 N.W.2d
29 (1996).
STATE v. gALINdO 	631
Cite as 278 Neb. 599

potential juror from such an attitude is of equal benefit to the
defendant as it is to the State. Neither galindo’s right to due
process nor his right to a fair trial was violated by the trial
judge’s comments on jury duty.
(b) Failure to Strike Jurors for Cause
[24] galindo argues that numerous jurors from the venire
should have been stricken from the jury for cause because they
had already formed an opinion of galindo’s guilt. However, of
the 19 jurors that galindo argues should have been stricken for
cause, only jurors Nos. 65 and 38 actually sat after the parties
had exhausted their peremptory strikes. We have explained that
even the erroneous overruling of a challenge for cause will not
warrant reversal unless it is shown on appeal that an objection-
able juror was forced upon the challenging party and sat upon
the jury after the party exhausted his or her peremptory chal-
lenges.75 Therefore, in determining whether the trial court com-
mitted reversible error in failing to strike the challenged jurors
for cause, we consider only jurors Nos. 65 and 38.
galindo’s brief does not specifically discuss these two jurors,
and he focuses instead on several jurors who were ultimately
removed by peremptory challenge. galindo simply cites to
juror No. 65 as one of the “[m]any jurors [who] expressed an
opinion that [galindo] was guilty, but were asked to set that
aside.”76 He then cites to juror No. 38 as one of the “[o]ther
jurors [who] indicated that they could not be fair or impartial,
but were asked to set that aside.”77 For the sake of complete-
ness, we examine these jurors in more detail.
Juror No. 65 had some acquaintance with victims of the
robbery. She used to work with Tuttle, koepke, and Sun’s ex-
wife. She knew Cahoy because they were both from the same
75 State v. Hessler, supra note 7; State v. Quintana, 261 Neb. 38, 621 N.W.2d
121 (2001). See, also, Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446,
173 L. Ed. 2d 320 (2009); United States v. Martinez-Salazar, 528 U.S.
304, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000); Ross v. Oklahoma, 487
U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); Olmstead v. Noll, 82
Neb. 147, 117 N.W. 102 (1908).
76 Brief for appellant at 68.
77 Id. at 71.
632 	278 NEBRASkA REPORTS

Nebraska town. Juror No. 65 remembered seeing Mausbach
when she was a customer of the bank. Finally, juror No. 65’s
mother-in-law lived next door to the family that was held at
gunpoint by galindo in order to steal a getaway car.
Nevertheless, juror No. 65 had no knowledge of the case
based on any discussions with surviving victims or their fami-
lies. She stated that she had not gone to any of the funerals or
memorial services for any of the victims. Juror No. 65 indi-
cated that there was nothing about her relationship with any of
these persons that would preclude her from taking an oath to sit
as a fair and impartial juror and decide the case solely on the
evidence presented during trial.
When asked about pretrial publicity, juror No. 65 stated
she had read about the case in a newspaper and “[t]here’s the
appearance that [galindo] was involved.” Nevertheless, she
repeatedly affirmed that she would judge galindo based solely
on the evidence presented at trial.
Juror No. 38 also had some acquaintance with a family
member of one of the victims. Juror No. 38 worked with
Bryant’s husband for approximately 8 months after the shoot-
ings. Juror No. 38 explained that he saw Bryant’s husband at
work somewhat regularly, but there was no indication from the
questioning of juror No. 38 that they were particularly close.
Juror No. 38 stated that he never spoke with Bryant’s husband
about the robbery. As a customer of the bank, juror No. 38 was
also acquainted with Cahoy, and he had gone to high school
with the daughter of the woman galindo had taken the car keys
from. He did not attend any of the funeral or memorial services
for the victims.
Juror No. 38 had stated in his questionnaire that he was not
“sure” whether he could be impartial. In the beginning of voir
dire, juror No. 38 reaffirmed this uncertainty. After the process
was explained in more detail, however, he stated he believed he
could put aside any feelings and opinions and presume galindo
innocent until proved otherwise. Juror No. 38 explained that
the way his questionnaire had been worded, he was not sure,
“but the way it’s been explained today, I believe that I could
base a verdict on evidence provided.” Juror No. 38 admitted
he had read many newspaper articles about the crime and had
STATE v. gALINdO 	633
Cite as 278 Neb. 599

formed the opinion that galindo was guilty. Nevertheless, he
stated, “I’ve been instructed to put aside those feelings and I
believe I can do that.”
While Neb. Rev. Stat. § 29-2006(2) (Reissue 1995) states
that good cause to challenge a juror includes that he or she has
formed or expressed an opinion as to the guilt or innocence of
the accused, it also states that if the opinion was formed based
on “reading newspaper statements, communications, comments
or reports, or upon rumor or hearsay,” then the potential juror
may serve if he or she says “on oath that he feels able, not-
withstanding such opinion, to render an impartial verdict upon
the law and the evidence” and if the court is satisfied that the
potential juror is in fact “impartial and will render such ver-
dict.” Only if the juror’s opinion was formed based upon “con-
versations with witnesses of the transactions or reading reports
of their testimony or hearing them testify” is dismissal of the
juror for cause mandatory.78 There is no evidence that jurors
Nos. 65 and 38 had formed their opinions based on conversa-
tions with witnesses of the transactions or reading or hearing
their testimony, and the trial judge determined that the jurors
were being truthful when they stated under oath that they could
be impartial.
The mere fact that a prospective juror is personally acquainted
with the victim or the victim’s family does not automatically
disqualify a person from sitting on a criminal jury.79 Only when
it appears that they cannot or will not put aside the relationship
with the victim and render impartial verdicts based solely on
the evidence need jurors be excused for cause.80 The inquiry
78 § 29-2006(2). See, also, Neb. Rev. Stat. § 25-1636 (Reissue 2008).
79 See, Taylor v. State, 808 So. 2d 1148 (Ala. Crim. App. 2000); Com. v.
Colson, 507 Pa. 440, 490 A.2d 811 (1985), abrogated on other grounds,
Com. v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001). See, also, State v.
Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998); Carrillo v. People, 974
P.2d 478 (Colo. 1999); Stokes v. State, 281 ga. 825, 642 S.E.2d 82 (2007);
Powers v. State, 945 So. 2d 386 (Miss. 2006); State v. Jaynes, 353 N.C.
534, 549 S.E.2d 179 (2001); State v. Gell, 351 N.C. 192, 524 S.E.2d 332
(2000); State v. Sheppard, 84 Ohio St. 3d 230, 703 N.E.2d 286 (1998);
Com. v. Robinson, 581 Pa. 154, 864 A.2d 460 (2004).
80 King v. State, 273 ga. 258, 539 S.E.2d 783 (2000).
634 	278 NEBRASkA REPORTS

in ruling on a motion to strike a prospective juror for cause
is whether the conditions behind a juror’s familiarity with a
party, victim, attorney, or witness are such that those connec-
tions would probably subconsciously affect his or her decision
of the case adversely to the defendants; however, this does not
encompass a mere social acquaintanceship in the absence of
other indicia of a relationship so close as to indicate the proba-
bility of partiality.81 There is no evidence in this case that jurors
Nos. 65 and 38 had such a close relationship with any of the
victims or their families.
[25] The law does not require that a juror be totally ignorant
of the facts and issues involved in the case; it is sufficient if the
juror can lay aside his or her impression or opinions and render
a verdict based upon the evidence.82 For the reasons discussed
above, neither juror No. 65 nor juror No. 38 was subject to
mandatory disqualification. Thus, their retention or rejection
was a matter of discretion with the trial court that is subject to
reversal only when clearly wrong.83 Our review of the voir dire
does not reveal error in the trial court’s judgment that jurors
Nos. 65 and 38 could be fair and impartial.
Juror No. 65’s statement that “[t]here’s the appearance that
[galindo] was involved” barely rises to an opinion of guilt.
This statement does not call into question juror No. 65’s later
affirmation that she could render an impartial verdict upon the
law and the evidence. Juror No. 38’s doubts likewise do not
lead us to the conclusion that the trial court was clearly wrong
in believing juror No. 38’s affirmation that he could set aside
personal opinions and consider only the evidence at trial.
[26] If the voir dire examination of a juror considered as a
whole does not show bias or partiality, a challenge upon that
ground is properly overruled, although during his or her exami-
nation statements are made which, if unexplained, might have
been a ground for challenge.84
81 Ratliff v. Com., 194 S.W.3d 258 (ky. 2006). See, also, e.g., Vaughn v.
Griffith, 565 So. 2d 75 (Ala. 1990).
82 See State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).
83 See State v. Hessler, supra note 7.
84 See May v. State, 155 Neb. 786, 54 N.W.2d 62 (1952).
STATE v. gALINdO 	635
Cite as 278 Neb. 599

We defer to the trial court’s judgment on a motion to strike
for cause, because the trial court is in the best position to assess
the demeanor of the venire and of the individuals who compose
it.85 As explained by the U.S. Supreme Court:
[T]he manner of the juror while testifying is oftentimes
more indicative of the real character of his opinion than
his words. That is seen below, but cannot always be
spread upon the record. Care should, therefore, be taken
in the reviewing court not to reverse the ruling below
upon such a question of fact, except in a clear case.86
We are not insensitive to the issues of the personal connections
of the community and the pretrial publicity in this case. These
factors may have made the trial judge’s task more challenging.
But we conclude that the task was, in the end, successfully
accomplished. There is nothing in the record of this case to
indicate that the jurors who ultimately sat on galindo’s trial
were anything but fair and impartial.
(c) Venue
[27] Of course, galindo’s challenge to the trial court’s fail-
ure to strike jurors for cause is intertwined with his belief that
a fair jury simply could not be found in Madison County. He
alleges that under Irvin v. Dowd,87 we must assume partiality of
the Madison County jury as a matter of law, no matter how sin-
cere the jurors were when they pledged to be impartial. galindo
asserts he was denied his rights to due process, a fair trial, and
an impartial jury, because the trial court denied his request for
a change of venue. Although we have set out factors for deter-
mining whether to grant a motion for change of venue, galindo
does not specifically rely on these factors. Instead, galindo
makes a twofold argument. First, he contends that pretrial pub-
licity was pervasive and prejudicial. Second, he contends that
the statements of potential jurors showed that voir dire was
85 See, Uttecht v. Brown, 551 U.S. 1, 127 S. Ct. 2218, 167 L. Ed. 2d 1014
(2007); State v. Hessler, supra note 7.
86 Reynolds v. United States, 98 U.S. (8 Otto) 145, 156-57, 25 L. Ed. 244
(1878).
87 Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).
636 	278 NEBRASkA REPORTS

insufficient to protect his rights to a fair and impartial jury. A
motion for change of venue is addressed to the discretion of the
trial judge, whose ruling will not be disturbed absent an abuse
of discretion.88 A trial court abuses its discretion in denying a
motion to change venue when a defendant establishes that local
conditions and pretrial publicity make it impossible to secure a
fair and impartial jury.89
[28] We have held that voir dire examination provides the
best opportunity to determine whether a court should change
venue.90 But galindo asserts that the “‘“pattern of deep and
bitter prejudice”’”91 against him in Madison County man-
dated a change of venue, no matter what the jurors stated in
voir dire.
(i) Pretrial Publicity
We have stated that under Irvin,92 “‘adverse pretrial public-
ity can create such a presumption of prejudice in a community
that the jurors’ claims that they can be impartial should not
be believed.’”93 But “juror exposure to information about a
state defendant’s prior convictions or to news accounts of the
crime with which he is charged [does not] alone presumptively
deprive[] the defendant of due process.”94 “Partiality may be
presumed only in situations where ‘the general atmosphere in
the community or courtroom is sufficiently inflammatory.’”95
88 State v. Hessler, supra note 7.
89 State v. Rodriguez, supra note 82.
90 Id.
91 Id. at 941, 726 N.W.2d at 169.
92 Irvin v. Dowd, supra note 87.
93 State v. Williams, 239 Neb. 985, 991, 480 N.W.2d 390, 395 (1992), quoting
Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984).
See, also, 6 Wayne R. LaFave et al., Criminal Procedure § 23.2(f) (3d ed.
2007).
94 Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 44 L. Ed. 2d 589
(1975).
95 State v. Williams, supra note 93, 239 Neb. at 991, 480 N.W.2d at 395,
quoting Murphy v. Florida, supra note 94.
STATE v. gALINdO 	637
Cite as 278 Neb. 599

A court will normally not presume unconstitutional par-
tiality because of media coverage, unless the record shows a
“‘barrage of inflammatory publicity immediately prior to trial,’
. . . amounting to a ‘huge . . . wave of public passion’”96 or
resulting in “a trial atmosphere . . . utterly corrupted by press
coverage.”97 The quantum of news coverage is not dispositive.
Even the community’s extensive knowledge about the crime
or the defendant through pretrial publicity is insufficient in
itself to render a trial constitutionally unfair when the media
coverage consists of merely factual accounts that do not reflect
animus or hostility toward the defendant.98 Although we have
frequently stated that the defendant must show pervasive, mis-
leading pretrial publicity, the more important consideration is
whether the media coverage was factual, as distinguished from
“invidious or inflammatory.”99
In Irvin, publicity against the defendant included prejudicial
details of his criminal record over the course of the previous
20 years. The publicity detailed the fact that the defendant
had failed a lie detector test and had confessed not only to the
murder charged, but to five other murders and 24 burglaries
committed around the same time. He was portrayed as a “‘con-
fessed slayer of six,’” “remorseless and without conscience,” a
parole violator, and fraudulent check artist.100 dramatic news-
paper articles portrayed law enforcement pledges to see him
punished and explained that defense counsel had no choice but
to defend his client. Of a panel of 370 potential jurors, almost
90 percent entertained some opinion as to the defendant’s
guilt. Two-thirds of the venire were aware of the other murders
96 Patton v. Yount, supra note 93, 467 U.S. at 1033, quoting Murphy v.
Florida, supra note 94, and Irvin v. Dowd, supra note 87.
97 Murphy v. Florida, supra note 94, 421 U.S. at 798. See, also, Dobbert v.
Florida, supra note 34.
98 See, Patton v. Yount, supra note 93; Dobbert v. Florida, supra note 34;
State v. Rodriguez, supra note 82.
99 See Murphy v. Florida, supra note 94, 421 U.S. at 801 n.4. See, also, State
v. Rodriguez, supra note 82; State v. Boppre, 234 Neb. 922, 453 N.W.2d
406 (1990).
100 Irvin v. Dowd, supra note 87, 366 U.S. at 726.
638 	278 NEBRASkA REPORTS

attributed to the defendant.101 Eight out of twelve of the jurors
finally placed in the jury box thought the defendant was
guilty—although they all stated under oath they could set aside
that preconception.
The 	Court 	concluded 	that 	under 	these 	circumstances,
“accounting for the frailties of human nature,” “it would be
difficult to say that each [juror] could exclude this precon-
ception of guilt from his deliberations.”102 Therefore, the trial
court’s finding of impartiality did not meet constitutional stan-
dards and the conviction in the venue where the crime occurred
was void.103
In support of an allegedly similar deep and bitter prejudice
against him in Madison County, galindo points to the exten-
siveness of the publicity. But in contrast to the facts in Irvin,
much of the publicity galindo complains of is the same pub-
licity that we found insufficient to mandate a change of venue
for Rodriguez’ trial. In State v. Rodriguez,104 we explained that
while the media coverage was indeed “extensive,” it consisted
mostly of factual accounts. We noted that Rodriguez did not
contend that the coverage displayed any hostility or animosity
toward him. Since the time of Rodriguez’ trial, the media has
generated more publicity, but the nature of the publicity has
not significantly changed. It remains largely factual, and none
of the pretrial publicity revealed evidence inadmissible for the
jury’s consideration at trial. Press coverage which is factual in
nature cannot serve as the basis for a change of venue.105
Like Rodriguez, galindo does not argue that the publicity
displayed animus or hostility toward him. This is distinct from
Irvin, where pretrial publicity made it impossible to obtain a
fair trial in the venue where the crime was committed. The
relevant question is not whether the potential jurors knew
101 Id. See, also, Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed.
2d 663 (1963).
102 Irvin v. Dowd, supra note 87, 366 U.S. at 727-28.
103 Irvin v. Dowd, supra note 87.
104 State v. Rodriguez, supra note 82, 272 Neb. at 941, 726 N.W.2d at 169.
105 State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 (1999).
STATE v. gALINdO 	639
Cite as 278 Neb. 599

about the case but whether they “had such fixed opinions that
they could not judge impartially the guilt of the defendant.”106
We do not believe that the media coverage was the type that
would have inflamed public passion against him or corrupted
the trial atmosphere such that the trial judge should have pre-
sumed prejudice for any potential juror. Nor do we believe
that the jurors’ statements during voir dire reflected such a
widespread hostility toward galindo that prejudice should have
been presumed.
(ii) Jurors’ Statements
galindo also alleges that the juror questionnaires and the
voir dire demonstrate a pervasive, biased community senti-
ment against him. In evaluating the reliability of jurors’ state-
ments that they can be impartial, another relevant consider-
ation is whether most of the venire members have stated that
they cannot be impartial. In Murphy v. Florida,107 the U.S.
Supreme Court, discussing Irvin, where nearly 90 percent
of the venire members stated that they could not be fair and
impartial, concluded:
In a community where most veniremen will admit to a
disqualifying prejudice, the reliability of the others’ pro-
testations may be drawn into question; for it is then more
probable that they are part of a community deeply hostile
to the accused, and more likely that they may unwittingly
have been influenced by it.
But here, less than 29 percent of the jury pool members
stated in the questionnaire that they did not believe they could
be impartial. In contrast, almost 60 percent believed they could
be impartial. Similarly, of the 71 of the venire members, 21
(about 291⁄2 percent) were excused because they maintained
their belief that they could not be fair and impartial. But
these venire members did not represent “most” of the venire,
and these numbers fell far short of the 90 percent of venire
members in Irvin who could not set aside their prejudice. We
conclude that the jurors’ statements, taken as a whole, were
106 See Patton v. Yount, supra note 93, 467 U.S. at 1035.
107 See Murphy v. Florida, supra note 94, 421 U.S. at 803.
640 	278 NEBRASkA REPORTS

insufficient to show that the court should have presumed the
jurors would be affected by community partiality despite their
statements to the contrary.
(iii) Size of Community
Lastly, galindo argues that the small size of the community,
in relation to the large scale of the crime, mandated a change
of venue. galindo complains that because of the size of the
city and the fact that the murdered bank tellers worked with
the public, many potential jurors had some direct or indirect
acquaintance with at least one of the victims. But this is not
enough to assume prejudice under Irvin.108 To the extent voir
dire revealed a relatively small degree of separation between
the victims and the community, we find nothing in the record
that calls into question the analysis already set forth above
that the jury ultimately selected was fair and impartial. To
hold otherwise would mandate a change of venue anywhere
the community is relatively small in proportion to the crime
or the number of victims. But neither the Fifth nor the Sixth
Amendment demands or even contemplates a jury of stran-
gers.109 A serious case will tend to draw most of the public’s
attention in any size community, and absent particular evidence
of the community’s inability to put on a fair trial, such inability
will not be presumed simply because of the community’s size
and the relationships among its people.
We find no merit to galindo’s argument that the failure to
grant his motion for change of venue denied him his right to a
trial before a fair and impartial jury.
(d) “Life Qualifying” the Venire
galindo next asserts that due process and the prohibition
against cruel and unusual punishment were violated when the
trial court denied his request to “‘life qualify’” the venire.110
Specifically, galindo sought to inquire whether any of the
108 Irvin v. Dowd, supra note 87.
109 Casey v. Moore, 386 F.3d 896 (9th Cir. 2004); Jerrel v. State, 756 P.2d 301
(Alaska App. 1988); Duke v. State, 99 P.3d 928 (Wyo. 2004).
110 Brief for appellant at 94.
STATE v. gALINdO 	641
Cite as 278 Neb. 599

potential jurors would automatically impose the death penalty
in every first degree murder case. In denying the request, the
trial court reasoned that Nebraska’s sentencing scheme provides
that the judge, not the jury, is to determine whether the death
sentence will be imposed. galindo argues that even though the
jury does not impose the ultimate sentence, those jurors who
believe in imposing the death sentence in all circumstances
would vote to find an aggravator, despite the evidence.
[29] generally, the extent to which parties may examine
jurors as to their qualifications rests largely in the discretion
of the trial court, the exercise of which will not constitute
reversible error unless clearly abused, and where it appears
that harmful prejudice has been caused thereby.111 But galindo
relies on Morgan v. Illinois,112 wherein the U.S. Supreme Court
held that the defendant had the constitutional right to inquire
if any of the prospective jurors would always impose the death
penalty following a conviction of first degree murder. We find
Morgan distinguishable from the present case.
[30] Central to the Court’s decision in Morgan was the
fact that Illinois had chosen to delegate to the jury the task
of weighing the aggravating circumstances against mitigating
circumstances and to determine whether the penalty of death
should be imposed. The Court said that the proper standard
for determining when a prospective juror may be excluded for
cause because of his or her views on capital punishment is
whether the juror’s views would prevent or substantially impair
the performance of his or her duties as a juror in accordance
with the juror’s instructions and oath.113 Under this standard,
the Court explained: “[A] juror who in no case would vote
for capital punishment, regardless of his or her instructions,
is not an impartial juror and must be removed for cause.”114
111 State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999); Yount v. Seager,
181 Neb. 665, 150 N.W.2d 245 (1967); State v. Bruna, 12 Neb. App. 798,
686 N.W.2d 590 (2004).
112 Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492
(1992).
113 See id.
114 Id., 504 U.S. at 728.
642 	278 NEBRASkA REPORTS

Stated another way, a juror who would impose the death
penalty in all situations regardless of the weighing process is
“announcing an intention not to follow the instructions” that
he or she “consider” all the mitigating factors supported by
the evidence.115
[31] The Court explained that it thus followed that “[w]ere
voir dire not available to lay bare the foundation of petitioner’s
challenge for cause against those prospective jurors who would
always impose death following conviction, his right not to be
tried by such jurors would be rendered as nugatory and mean-
ingless . . . .”116 despite the fact that voir dire is generally left
to the discretion of the trial judge, the Court explained that the
trial court’s judgment was “‘subject to the essential demands of
fairness.’”117 The Court concluded that these essential demands
of fairness mandate that a defendant on trial for his or her life
be permitted on voir dire to ascertain whether a prospective
juror holds a belief that “reflects directly on that individual’s
inability to follow the law.”118
In Nebraska, unlike in Illinois, jurors’ beliefs regarding
whether all first degree murderers should be sentenced to death
do not reflect directly on their ability to follow the law. This is
because juries in Nebraska do not make the ultimate sentenc-
ing determination. While it might be permissible to allow the
type of questioning that galindo wished to conduct, it is not
mandated by the principles of fundamental fairness that limit
the trial court’s discretion in governing voir dire. We cannot
conclude that the trial court abused its discretion in denying
galindo’s request to “life qualify” the venire.
(e) Minimizing Jurors’ Role in death
Penalty determination
galindo argues that in addition to refusing his request to life
qualify the venire, the trial court handicapped the jury’s ability
to do its duty by minimizing its role in determining galindo’s
115 Id., 504 U.S. at 738.
116 Id., 504 U.S. at 733-34 (emphasis in original).
117 Id., 504 U.S. at 730.
118 Id., 504 U.S. at 735.
STATE v. gALINdO 	643
Cite as 278 Neb. 599

sentences. galindo asserts that the trial court’s standard death
qualification question violated his rights to due process and a
fair trial and the right against cruel and unusual punishment.
That question was as follows:
Now, . . . galindo is charged with first degree murder.
Under Nebraska law if a person is found guilty of first
degree murder, death is one of the possible penalties.
If . . . galindo is found guilty of first degree murder, a
panel of three judges will determine his sentence, not the
jury. knowing that a panel of judges, not the jury, must
determine the sentence, do you have any personal beliefs
which would prevent you from making a finding of guilty
of first degree murder even if the evidence supports such
a finding?
We conclude that there is no constitutional violation stemming
from this statement.
According to galindo, the trial court’s statement is analo-
gous to commentary considered impermissible by the U.S.
Supreme Court in Caldwell v. Mississippi.119 Under Mississippi
law at the time of the Caldwell decision, the jury in first
degree murder cases made the ultimate sentencing determina-
tion. during closing arguments for the defendant’s trial, the
prosecution attempted to rebut defense counsel’s argument that
the defendant’s life was in the jury’s hands and that it had a
solemn responsibility in determining whether to impose the
death penalty. The prosecution responded that defense counsel
was very “‘unfair’” to imply that it would be the jury putting
the defendant to death, explaining, “‘[Y]our decision is not the
final decision. . . . Your job is reviewable.’”120 The trial court
overruled defense counsel’s objection to this line of argument,
and the prosecution continued to explain to the jury that all
death penalty determinations were automatically reviewed by
the justices of the state supreme court.
The U.S. Supreme Court held that the prosecution’s argument
to the jury violated the defendant’s Eighth Amendment rights.
119 Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231
(1985).
120 Id., 472 U.S. at 325.
644 	278 NEBRASkA REPORTS

The Court held that the Eighth Amendment prohibits the impo-
sition of a death sentence by a sentencer “who has been led to
believe that the responsibility for determining the appropriate-
ness of the defendant’s death rests elsewhere.”121 “[C]apital sen-
tencers,” the Court explained, should instead “view their task as
the serious one of determining whether a specific human being
should die at the hands of the State.”122
Moreover, the Court explained that “[i]n the capital sen-
tencing context there are specific reasons to fear substantial
unreliability as well as bias in favor of death sentences when
there are state-induced suggestions that the sentencing jury
may shift its sense of responsibility to an appellate court.”123
The Court concluded that “[b]ias against the defendant clearly
stems from the institutional limits on what an appellate court
can do—limits that jurors often might not understand.”124 The
Court summarized:
The “delegation” of sentencing responsibility that the
prosecutor here encouraged would thus not simply post-
pone the defendant’s right to a fair determination of the
appropriateness of his death; rather it would deprive him
of that right, for an appellate court, unlike a capital sen-
tencing jury, is wholly ill-suited to evaluate the appropri-
ateness of death in the first instance. . . .
. . . .
. . . But for a sentencer to impose a death sentence out
of a desire to avoid responsibility for its decision presents
the specter of the imposition of death based on a factor
wholly irrelevant to legitimate sentencing concerns. The
death sentence that would emerge from such a sentenc-
ing proceeding would simply not represent a decision
that the State had demonstrated the appropriateness of the
defendant’s death.125
121 Id., 472 U.S. at 329. See, also, State v. Lotter, 266 Neb. 245, 664 N.W.2d
892 (2003).
122 Caldwell v. Mississippi, supra note 119, 472 U.S. at 329.
123 Id., 472 U.S. at 330.
124 Id.
125 Id., 472 U.S. at 330, 332.
STATE v. gALINdO 	645
Cite as 278 Neb. 599

The 	U.S. 	Supreme 	Court, 	however, 	has 	since 	clarified
Caldwell as follows:
Caldwell [is] “relevant only to certain types of com-
ment—those that mislead the jury as to its role in the
sentencing process in a way that allows the jury to feel
less responsible than it should for the sentencing deci-
sion.” . . . Thus, “[t]o establish a Caldwell violation, a
defendant necessarily must show that the remarks to the
jury improperly described the role assigned to the jury by
local law.”126
The prosecution’s commentary to the jury in Caldwell is
clearly distinct from the commentary by the trial judge in
galindo’s voir dire. Most fundamentally, as the trial court
noted, the jury in galindo’s trial was not the “sentencer.” Based
on the trial judge’s statement, there could be no “false belief”
that responsibility for determining the appropriateness of the
death sentence rests elsewhere, because that decision does
lie elsewhere.
Nor did the commentary influence the jury to “shift its
sense of responsibility” in its function of determining death
eligibility. The commentary complained of here occurred prior
to trial as part of the jury selection process. The trial judge
was simply trying to ascertain whether, despite the fact that
the panel, and not the jury, would determine the ultimate
sentence, any of the potential jurors would be unable to find
galindo guilty because he might be put to death based on
such a verdict.127 While the death qualification question did
not inform the jury at that time that it would be charged with
finding aggravating circumstances, this was deliberate. As
required by § 29-1603(2)(c), the existence or content of the
notice of aggravation was not disclosed to the jury prior to the
return of the guilty verdicts. Section 29-1603(2)(c) states that
“[t]he existence or contents of a notice of aggravation shall
126 Romano v. Oklahoma, 512 U.S. 1, 9, 114 S. Ct. 2004, 129 L. Ed. 2d 1
(1994) (citations omitted).
127 See, State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989); State v.
Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). See, also, Lockett v. Ohio,
438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978).
646 	278 NEBRASkA REPORTS

not be disclosed to the jury until after the verdict is rendered
in the trial of guilt.” Thus, the narrowness of the information
revealed to the potential jurors during voir dire was an attempt
to avoid unduly prejudicing the jury against galindo during the
guilt phase of the bifurcated trial.
By the time of the aggravation hearing, the nature of the jury’s
responsibility was fully explained. The jury was instructed:
“Aggravating circumstances are reasons why [galindo] may be
sentenced to death” and “[i]f no aggravating circumstance is
found to exist, the court shall enter a sentence of life imprison-
ment.” While the jury was also informed that the three-judge
panel determined galindo’s ultimate sentence, this unavoidable
knowledge did not inaccurately diminish the jurors’ sense of
responsibility or interject irrelevant concerns. And certainly,
unlike the concern over the jurors’ knowledge of the confines
of appellate review considered in Caldwell, there was no dan-
ger of the jury misunderstanding precisely what a three-judge
panel does.
[32] Voir dire is conducted under the supervision of the
court, and a great deal must, of necessity, be left to its sound
discretion.128 “The Constitution, after all, does not dictate a cate-
chism for voir dire, but only that the defendant be afforded an
impartial jury.”129 We find no constitutional violation stemming
from the trial court’s death eligibility questions.
5. E nmund/Tison
We turn now to a cluster of arguments made by galindo
pertaining to the U.S. Supreme Court’s decisions in Enmund
v. Florida130 and Tison v. Arizona.131 The Enmund/Tison rul-
ings address accomplice liability for felony murder and the
constitutional mandate that in capital cases, the punishment
be tailored to both the nature of the crime and the defendant’s
128 Morgan v. Illinois, supra note 112.
129 Id., 504 U.S. at 729.
130 Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140
(1982).
131 Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127
(1987).
STATE v. gALINdO 	647
Cite as 278 Neb. 599

personal responsibility and moral guilt.132 galindo asserts
that under those cases, he had a right to know under which
theory of first degree murder he was being tried and had a
right to step instructions mandating specific findings pertain-
ing to his level of culpability. In order to address these argu-
ments, we first discuss, in some detail, those two cases and
their progeny.
In Enmund, the defendant was sentenced to death after being
convicted as an aider and abettor to felony murder. The only
evidence of the defendant’s participation in the crime was that
he waited in a car a few hundred feet away to help the two rob-
bers, who had killed the victims, escape. The Court held that
the defendant’s death sentence was a violation of his Eighth
Amendment rights, because there was no evidence the defend-
ant himself killed, attempted to kill, or intended or contem-
plated that a life would be taken.
Under the statutory scheme by which the defendant was
convicted and sentenced to death, the State only needed to
show that the aider and abettor to the felony murder intended
the underlying crime. The jury was instructed that it need not
conclude there was a premeditated design or intent to kill, and
there was no requirement under the statutes charged that the
State present any proof as to the defendant’s mental state.
This, the Court explained, was distinguishable from the
statutory schemes of most other states which generally rejected
the death penalty for simple accomplice liability in felony
murders—what the Court later called “felony murder simplic-
iter.”133 The Court observed that of those states that allowed
capital punishment for felony murder accomplices, the death
penalty was more narrowly conscribed to situations where
sufficient aggravating circumstances are present. And most of
those states made it a statutory mitigating circumstance that the
defendant was an accomplice in a capital felony committed by
another person and that his participation was relatively minor.
132 Enmund v. Florida, supra note 130. See, also, Schad v. Arizona, supra note
57; Tison v. Arizona, supra note 131.
133 Tison v. Arizona, supra note 131, 481 U.S. at 148.
648 	278 NEBRASkA REPORTS

Specifically commenting on this mitigating circumstance, the
Court explained: “By making minimal participation in a capital
felony committed by another person a mitigating circumstance,
these sentencing statutes reduce the likelihood that a person
will be executed for vicarious felony murder.”134
Based on a review of the statutory schemes and the cir-
cumstances under which the death penalty had actually been
imposed, the Court concluded that society generally rejected
the idea of capital punishment for felony murder simpliciter.
And, unless the death penalty applied to a particular situa-
tion measurably contributes to the goal of either retribution or
deterrence, then it is nothing more than the purposeless and
needless imposition of pain and suffering.135
[33] The Court concluded that imposing the death penalty
on those guilty of felony murder simpliciter did not measur-
ably contribute to the goal of deterrence, because the likelihood
of a killing in the course of a robbery was not so substantial
that “one should share the blame for the killing if he somehow
participated in the felony.”136 This left retribution as the only
possible justification for executing the defendant, but, pun-
ishment as retribution “must be tailored to [the defendant’s]
personal responsibility and moral guilt” and to the defendant’s
“intentions, expectations, and actions.”137 It must be tailored to
the defendant’s culpability, “not on that of those who commit-
ted the robbery and shot the victims.”138 The Court concluded
that “[p]utting [the defendant] to death to avenge two killings
that he did not commit and had no intention of committing or
causing does not measurably contribute to the retributive end of
ensuring that the criminal gets his just deserts.”139
The U.S. Supreme Court in Tison clarified that simply
because 	the 	circumstances 	in 	Enmund 	did 	not 	meet 	the
134 Enmund v. Florida, supra note 130, 458 U.S. at 792.
135 Enmund v. Florida, supra note 130.
136 Id., 458 U.S. at 799.
137 Id., 458 U.S. at 800, 801.
138 Id., 458 U.S. at 798.
139 Id., 458 U.S. at 801.
STATE v. gALINdO 	649
Cite as 278 Neb. 599

culpability requirements for imposing the death penalty, it did
not follow that the death penalty could not be constitutionally
imposed against any accomplice to felony murder who did not
“kill, or intended that a killing take place.”140 The defendants in
Tison were convicted of felony murder and sentenced to death
in connection with their actions in providing weapons and
assisting in an armed prison escape of two convicted murder-
ers. They then helped flag down an innocent family to steal
their vehicle, watched the family be murdered by the escapees,
and continued in the joint criminal venture for several days
afterward until their eventual arrest. This, the Court explained,
was a far cry from “the minor actor” in Enmund.141
[34,35] The Court explained that even though they did not
themselves kill or intend to kill, it was constitutionally per-
missible to execute the two defendants in Tison because they
were both major participants in a dangerous crime. The Court
then stated:
[T]he reckless disregard for human life implicit in know-
ingly engaging in criminal activities known to carry a
grave risk of death represents a highly culpable mental
state, a mental state that may be taken into account
in 	making 	a 	capital 	sentencing 	judgment 	when 	that
conduct causes its natural, though also not inevitable,
lethal result.142
And “the greater the defendant’s participation in the felony
murder, the more likely that he acted with reckless indifference
to human life.”143
The Court explicitly declined in Tison “to precisely delin-
eate the particular types of conduct and states of mind war-
ranting imposition of the death penalty”144 in other cases, but
it did hold that “major participation in the felony committed,
140 Tison v. Arizona, supra note 131, 481 U.S. at 173 (Brennan, J., dissenting;
Marshall, J., joins; Blackmun and Stevens, JJ., join in part).
141 Tison v. Arizona, supra note 131, 481 U.S. at 149.
142 Id., 481 U.S. at 157-58.
143 Id., 481 U.S. at 153.
144 Id., 481 U.S. at 158.
650 	278 NEBRASkA REPORTS

combined with reckless indifference to human life, is sufficient
to satisfy the Enmund culpability requirement.”145
(a) Step Instruction
galindo’s principal argument is that the trial court erred in
denying his requested step instruction for the jury. galindo
requested a step instruction to determine whether a verdict
of first degree murder was based on the theory of premedita-
tion or felony murder. galindo then requested that the jury be
instructed that if it found him guilty of felony murder, it must
determine (1) whether galindo was “a major participant in the
felony” committed and (2) whether he demonstrated “reckless
indifference to human life.”
galindo argues that because the jury was given a general
verdict form, we cannot know whether it convicted him solely
as an aider and abettor to felony murder and rejected a pre-
meditated intent to kill. If it did, then galindo asserts that his
crimes fall under the concerns of Enmund/Tison, because he did
not himself kill four of the victims and he purportedly killed
Elwood accidentally. And galindo argues that the Enmund/
Tison factors are “‘functional equivalent[s]’” of elements of the
offense of death-eligible felony murder that, under Ring, must
be found by a jury beyond a reasonable doubt.146
(i) Separating Premeditated From Felony Murder
[36] We have explained that premeditated murder and felony
murder are but different ways to commit a single offense of
first degree murder.147 And where a single offense may be com-
mitted in a number of different ways and there is evidence to
support each of the ways, the jury need only be unanimous in
its conclusion that the defendant violated the law by commit-
ting the act.148 It need not be unanimous in its conclusion as
to which of several consistent theories it believes resulted in
145 Id.
146 Brief for appellant at 55.
147 State v. Parker, 221 Neb. 570, 379 N.W.2d 259 (1986). See, also, State v.
Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991).
148 Id.
STATE v. gALINdO 	651
Cite as 278 Neb. 599

the violation. Therefore, we have held that the trial court is not
required to provide separate verdict forms for these two differ-
ent theories of first degree murder.149
The U.S. Supreme Court has agreed, but has noted that sim-
ply because such a general verdict under two alternate theories
of first degree murder does not “fall beyond the constitutional
bounds of fundamental fairness and rationality,” this is “not
[to] suggest that jury instructions requiring increased verdict
specificity are not desirable.”150 The Arizona Supreme Court in
State v. Smith151 explained further:
[A]s a matter of sound administration of justice and effi-
ciency in processing murder cases in the future, we urge
trial courts, when a case is submitted to a jury on alter-
nate theories of premeditated and felony murder, to give
alternate forms of verdict so the jury may clearly indicate
whether neither, one, or both theories apply.
The court in Smith illustrated that in death penalty cases, this
“would be of great benefit to the trial court and to the review-
ing courts in determining death penalty questions under the
Enmund/Tison analysis.”152 In addition, the court noted that it
had in the past been forced to reverse a general first degree
murder verdict when it found the evidence failed to support the
underlying felony—because it was simply unknown whether
the verdict was based on felony murder or premeditation.
For the following reasons, we conclude that galindo’s
Enmund/Tison arguments are without merit.
(ii) Enmund/Tison Findings as Functional
Elements of Offense
galindo’s main purpose in separating premeditated from
felony murder in the proposed jury instructions was to demand
149 See, State v. Buckman, supra note 147; State v. Parker, supra note 147.
See, also, Schad v. Arizona, supra note 57; State v. Smith, 160 Ariz. 507,
774 P.2d 811 (1989); San Martin v. State, 717 So. 2d 462 (Fla. 1998);
State v. Fry, 138 N.M. 700, 126 P.3d 516 (2005).
150 Schad v. Arizona, supra note 57, 501 U.S. at 645.
151 State v. Smith, supra note 149, 160 Ariz. at 513, 774 P.2d at 817.
152 Id.
652 	278 NEBRASkA REPORTS

that the jury then make Enmund/Tison findings. It is error when
the instructions provided do not require a jury to find each ele-
ment of the crime under the proper standard of proof.153 Before
Ring, it was clear that there was no entitlement, absent legisla-
tion so providing, to Enmund/Tison findings by a jury beyond a
reasonable doubt. galindo argues, again, that Ring has changed
the analysis.
In Cabana v. Bullock,154 decided shortly before Tison, the U.S.
Supreme Court explained that its ruling in Enmund “establishes
no new elements of the crime of murder that must be found by
the jury.”155 The defendant in Cabana had been sentenced to
death after being found guilty of first degree murder under a
general verdict. It was thus unclear whether the defendant was
found guilty under a theory of premeditated or felony murder.
The evidence was also unclear as to whether the defendant had
actually killed. The Fifth Circuit Court of Appeals reversed the
conviction because it concluded that Enmund prohibited the
defendant’s execution absent Enmund findings by the trier of
fact beyond a reasonable doubt, but the Court reversed, holding
that the circuit court had misunderstood Enmund.
[37] The Court clarified that Enmund “‘does not affect the
state’s definition of any substantive offense, even a capital
offense.’”156 Instead, it is simply a “substantive limitation on
sentencing, and like other such limits it need not be enforced
by the jury.”157 The Court explained:
[T]he decision whether a sentence is so disproportion-
ate as to violate the Eighth Amendment in any particular
case, like other questions bearing on whether a criminal
153 See, Schad v. Arizona, supra note 57; Sandstrom v. Montana, 442 U.S.
510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).
154 Cabana v. Bullock, 474 U.S. 376, 106 S. Ct. 689, 88 L. Ed. 2d 704 (1986),
abrogated on other grounds, Pope v. Illinois, 481 U.S. 497, 107 S. Ct.
1918, 95 L. Ed. 2d 439 (1987).
155 Cabana v. Bullock, supra note 154, 474 U.S. at 385. Accord Walton v.
Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), over-
ruled in part, Ring v. Arizona, supra note 4.
156 Cabana v. Bullock, supra note 154, 474 U.S. at 385.
157 Id., 474 U.S. at 386.
STATE v. gALINdO 	653
Cite as 278 Neb. 599

defendant’s constitutional rights have been violated, has
long been viewed as one that a trial judge or an appellate
court is fully competent to make.158
Accordingly, “[a]t what precise point in its criminal process
a State chooses to make the Enmund determination is of little
concern from the standpoint of the Constitution.”159
In State v. Bjorklund,160 we likewise rejected the defend-
ant’s argument that the death penalty could not be imposed
without a jury’s finding that the defendant intended to kill,
attempted to kill, or actually did kill the victim; had a major
personal involvement in any underlying felony during which
the victim was killed; or showed a reckless indifference to
human life. In affirming the imposition of the death penalty,
we explained:
[I]t is not the province of the jury to make the findings
posited by [the defendant] in this assignment of error.
The lack of a jury finding in this regard has no impact on
sentencing because the Enmund v. Florida, supra, ques-
tion is addressed as a mitigating circumstance during the
sentencing phase of a capital case. It is, by statute, a miti-
gating circumstance that “[t]he offender was an accom-
plice in the crime committed by another person and his
participation was relatively minor.” § 29-2523(2)(e). The
trial court found during sentencing that [the defendant]
failed to establish this mitigator by a preponderance of
the evidence . . . .161
We also observed that based on the evidence at trial, the con-
cerns of the Court in Enmund were not present.162
galindo argues that, under Ring, Enmund/Tison findings are
akin to statutory aggravating circumstances and are likewise
functional equivalents of elements of the offense. galindo
158 Id.
159 Id.
160 State v. Bjorklund, supra note 72.
161 Id. at 479, 604 N.W.2d at 211.
162 See, State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998); State v. Ryan,
248 Neb. 405, 534 N.W.2d 766 (1995), abrogated on other grounds,
Mata II, supra note 33.
654 	278 NEBRASkA REPORTS

argues that this is so because without those findings, an accom-
plice to felony murder cannot be subjected to the increased
penalty of death. This is the first time that the relationship
between Enmund/Tison and Ring has been squarely presented
to this court. We determine, however, that the relevant hold-
ings of Bjorklund and Cabana remain good law. Enmund/Tison
“findings” are not elements of the offense of felony murder,
even when the death penalty is imposed.
[38] Under Ring, the U.S. Supreme Court held there was a
right to jury factfinding of aggravating circumstances, because
if state law makes a factual finding a necessary prerequisite to
imposing a greater punishment than authorized without such
a finding, then a defendant has a Sixth Amendment right to
have this finding made by a jury beyond a reasonable doubt.163
In short, Ring extended Sixth Amendment jury protections to
aggravating sentencing considerations.164 The Court explained
that “[c]apital defendants . . . are entitled to a jury determina-
tion of any fact on which the legislature conditions an increase
in their maximum punishment.”165
[39] The Court has since explained that the “animating
principle [of the rule in Ring] is the preservation of the jury’s
historic role as a bulwark between the State and the accused
at the trial.”166 “[T]he Sixth Amendment does not countenance
legislative encroachment on the jury’s traditional domain.”167
That domain includes “the existence of ‘“any particular fact”’
that the law makes essential to his punishment.”168
163 Ring v. Arizona, supra note 4. See, United States v. Booker, 543 U.S. 220,
125 S. Ct. 738, 160 L. Ed. 2d 621 (2005); Schriro v. Summerlin, supra
note 19; Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000).
164 See Mata II, supra note 33.
165 Ring v. Arizona, supra note 4, 536 U.S. at 589.
166 Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 717, 172 L. Ed. 2d 517
(2009).
167 Id.
168 United States v. Booker, supra note 163, 543 U.S. at 232.
STATE v. gALINdO 	655
Cite as 278 Neb. 599

But, as the Court explained in Cabana, Eighth Amendment
considerations such as those in Enmund and Tison are tradi-
tionally the domain of a trial judge or appellate court, and not
a jury. On remand in Ring, the Arizona Supreme Court spe-
cifically addressed the relationship between Ring and Enmund/
Tison. Although the defendant had also complained to the U.S.
Supreme Court that he was entitled to a jury determination of
the Enmund/Tison factors, that issue was never addressed by
its decision.169
The Arizona Supreme Court determined that Ring did not
require a jury determination of “Enmund-Tison findings.”170
Such findings were part of an Eighth Amendment proportion-
ality analysis and were nothing more than a judicially crafted
instrument used to measure proportionality between a defend-
ant’s criminal culpability and the sentence imposed. They do
not concern whether the State has met its burden to prove the
offense, but instead whether, given a defendant’s culpable men-
tal state, the government can impose capital punishment con-
sistent with the Eighth Amendment’s proportionality threshold.
This is “conceptually and constitutionally distinct”171 from the
Sixth Amendment analysis in Ring. As stated by another court
in rejecting any relationship between Ring and Enmund/Tison,
the Enmund/Tison determination “is a limiting factor, not an
enhancing factor.”172
[40] We agree. Enmund and Tison did nothing more than
provide guidance to the courts in their traditional Eighth
Amendment analysis of certain circumstances. In fact, as a
careful reading of Enmund and Tison makes clear, any attempt
to bottle Enmund and Tison into a formula of “factors” or
“findings” is inappropriate and contradicts the U.S. Supreme
Court’s statement that it was not providing a precise delineation
of “particular types of conduct and states of mind warranting
169 Ring v. Arizona, supra note 4.
170 State v. Ring, 204 Ariz. 534, 563, 65 P.3d 915, 944 (2003).
171 Id. at 565, 65 P.3d at 946.
172 Brown v. State, 67 P.3d 917, 920 (Okla. Crim. App. 2003). But see Palmer
v. Clarke, 293 F. Supp. 2d 1011 (d. Neb. 2003), reversed and remanded in
part 408 F.3d 423 (8th Cir. 2005).
656 	278 NEBRASkA REPORTS

imposition of the death penalty” in other cases.173 As explained
in Schriro,174 Ring did not touch on what elements are essen-
tial for a constitutional statutory scheme. And the Nebraska
Legislature has not chosen to make any sort of Enmund/Tison
finding a prerequisite to imposing a greater punishment than
that which would be authorized, under law, without such a
finding. In other words, Enmund/Tison considerations are not
facts on which “the legislature conditions an increase in their
maximum punishment.”175 They are, accordingly, not within the
jury’s traditional domain. As previously discussed, Ring was a
limited, procedural holding concerning the Sixth Amendment.
It does not cast any doubt on the traditional view that Enmund
and Tison present no new elements of the offense of death-
eligible felony murder.
(b) Bill of Particulars
galindo also argues that the trial court erred in overruling
his bill of particulars by which he sought to know exactly
what theory of first degree murder the State intended to prove
against him. galindo asserts he had a due process right to know
whether the State would attempt to prove that he was a major
participant in the crime who displayed a reckless indifference
to human life. Under Ring and related cases,176 galindo claims
that the indictment must inform the defendant of any issue that
would increase the punishment for the offense charged.
In line with our holdings concerning general verdict forms
for first degree murder, we have said that it is not error to
charge a defendant in the information with first degree murder
without specifying whether the State’s theory is felony murder
or premeditated murder.177 Rather, the charge is for a single
crime and arises out of one set of facts.178 And, we have already
173 Tison v. Arizona, supra note 131, 481 U.S. at 158.
174 Schriro v. Summerlin, supra note 19.
175 Ring v. Arizona, supra note 4, 536 U.S. at 589.
176 See, e.g., Apprendi v. New Jersey, supra note 163; Jones v. State, 261 ga.
665, 409 S.E.2d 642 (1991).
177 See State v. Buckman, supra note 147.
178 Id.
STATE v. gALINdO 	657
Cite as 278 Neb. 599

concluded that the holding in Ring is inapplicable to Enmund/
Tison considerations. We accordingly find no error in the trial
court’s refusal to grant galindo’s bill of particulars.
(c) Whether Eighth Amendment Prohibits Any
of galindo’s death Penalty Sentences
To the extent that galindo challenges the constitutionality
of his ultimate penalty under Enmund/Tison, we conclude that
none of the convictions violate galindo’s Eighth Amendment
right against excessive punishment. While findings of culpabil-
ity under Enmund/Tison need not necessarily be made by the
jury,179 for all five victims, the jury found aggravating circum-
stance (1)(f). Section 29-2523(1)(f) states that at the time of the
murder, the defendant knowingly created a great risk of death
to at least several persons.
The instruction on accomplice liability relevant to this aggra-
vating circumstance read as follows:
[galindo] can be guilty of an aggravator even though
he personally did not commit the act involved in the crime
so long as he aided someone else to commit it. [galindo]
aided someone else if:
(1) [galindo] intentionally encouraged or intentionally
helped another person to commit the aggravator; and
(2) [galindo] intended that an aggravator be commit-
ted; or [he] knew that the other person intended to com-
mit or expected the other person to commit the aggrava-
tor; and
(3) the aggravator in fact was committed by that
other person.
Thus, under this instruction, a finding of aggravating circum-
stance (1)(f) was a finding that galindo intentionally or know-
ingly encouraged an act in which he knew or expected would
create a great risk of death to several persons. Put another way,
the jury found that galindo acted with a reckless disregard for
human life.
In 	addition, 	the 	sentencing 	panel 	specifically 	rejected
the 	presence 	of 	mitigating 	circumstance 	(2)(e). 	Section
179 See discussion infra Part V.5(a)(ii).
658 	278 NEBRASkA REPORTS

29-2523(2)(e) states that the offender was an accomplice in
the crime committed by another person and that his or her
participation was relatively minor. The sentencing panel stated
it found “no evidence to support the existence of this mitigat-
ing circumstance and concludes that it does not apply.” As the
U.S. Supreme Court in Enmund said: “By making minimal
participation in a capital felony committed by another person
a mitigating circumstance, these sentencing statutes reduce
the likelihood that a person will be executed for vicarious
felony murder.”180
In fact, galindo does not deny that he was a major partici-
pant in the underlying felony. galindo was one of the principal
planners of the robbery and one of the principal actors. As
the U.S. Supreme Court indicated in Tison, the relationship
between major participation and reckless disregard for human
life is almost inseparable. This is especially true when the
crime involves the armed robbery of a bank. Assuming without
deciding that Enmund/Tison considerations are relevant when a
defendant has actually killed one of the victims, the State has
made more than an adequate showing here that those consider-
ations are satisfied. galindo was a major participant in the rob-
bery, and he acted with a reckless disregard for human life; the
Eighth Amendment does not prohibit him from being sentenced
to the death penalty.
6. evideNtiAry C hAlleNgeS C oNSidered duriNg
AggrAvAtioN ANd SeNteNCiNg phASeS
We turn next to miscellaneous challenges galindo makes to
the trial court’s evidentiary rulings during the aggravation and
sentencing stages of trial. First, galindo argues that he was
prejudiced by the jury’s exposure during the aggravation hear-
ing to a photograph of Lundell’s body. Second, galindo argues
that the three-judge panel should not have been allowed to
consider the presentence investigation report, the aggravation
hearing record, and certain victim impact statements. Finally,
galindo argues that he was prejudiced when the sentenc-
ing panel, for purposes of proportionality review, refused to
180 Enmund v. Florida, supra note 130, 458 U.S. at 792.
STATE v. gALINdO 	659
Cite as 278 Neb. 599

consider his offers of other first degree murder cases for which
the death penalty was not imposed and the “Baldus Report.”
(a) Photograph of Lundell’s Body during
Aggravation Hearing
galindo chose jury determination of aggravating circum-
stances.181 One 	of 	the 	aggravating 	circumstances 	alleged
and found was that based upon galindo’s participation in
Lundell’s murder, he had a substantial prior history of seri-
ous assaultive or terrorizing criminal activity.182 The evidence
was relevant to the jury’s finding that the State had proved
aggravator (1)(a).
Over galindo’s objection, the court allowed the jury to view
a photograph of Lundell’s decomposed body. The patholo-
gist testified that he was unable to determine the exact cause
of Lundell’s death. The photograph does show, however, that
Lundell had been gagged and that his legs and feet were bound.
The photograph also shows that Lundell’s body had been
burned before being taped up in a blanket and buried.
galindo had offered to stipulate to the location of Lundell’s
body, but the State refused to enter into the stipulation.
galindo argues that because of his offer to stipulate and the
fact that the exact cause of death was not able to be deter-
mined from the photograph, the photograph had little proba-
tive value. In contrast, galindo claims the photograph was
particularly prejudicial. galindo asserts that the photograph
was thus inadmissible under Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 2008). galindo did not stipulate to his
involvement in Lundell’s murder, and he does not contend that
the State did not have to prove his involvement to show he had
a substantial prior history of serious assaultive or terrorizing
criminal activity.
Under the previous law, when a sentencing judge or panel
of judges decided both aggravating and mitigating circum-
stances, this court held that the sentencing panel could consider
unadjudicated misconduct in the penalty phase of a capital
181 See § 29-2520(2) (Reissue 2008).
182 See § 29-2523(1)(a).
660 	278 NEBRASkA REPORTS

trial.183 The issue in State v. Reeves184 was whether the sentenc-
ing panel could consider unadjudicated misconduct to rebut the
existence of a mitigating circumstance, i.e., that the defendant
had no significant history of prior criminal activity. But we
relied extensively on cases in which other state and federal
courts had permitted evidence of unadjudicated offenses to
prove an aggravating factor in the sentencing phase of a capital
trial. Those courts reasoned that the evidence is not unfairly
prejudicial, because guilt has already been determined in the
sentencing phase. They further reasoned that evidence of a
defendant’s previous violent criminal conduct is particularly
relevant to individualized capital sentencing. After reviewing
these cases, we agreed with those courts:
“[A]s is true in all other criminal causes, the sentencing
authority in a death penalty case should be presented
with a full range of relevant information so as to fashion
a particular penalty in accord with ‘the prevalent modern
penal philosophy of individualized punishment.’” . . .
In Nebraska, the sentencing court in noncapital cases is
allowed wide latitude in the information it considers,
including consideration of unadjudicated misconduct. .
. . This wide latitude should not be circumscribed in
capital cases, where the need for individualized punish-
ment is crucial because of the seriousness of the offense
and gravity of possible penalties which may be imposed
after conviction.
. . . .
“In the proceeding for determination of sentence, evi-
dence 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 circum-
stances set forth in section 29-2523. Any such evidence
which the court deems to have probative value may
be received.”
183 See State v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990), vacated and
remanded on other grounds 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d
409 (1990).
184 Id.
STATE v. gALINdO 	661
Cite as 278 Neb. 599

. . . .
Moreover, because in Nebraska capital sentencing is
conducted by a single judge or a panel of three judges
and not by a jury, the risk that the sentencer might be
unduly prejudiced by the admission of such evidence
is minimized.185
As this statement illustrates, our holding and reasoning in
Reeves also apply to aggravating circumstances, with the added
requirement that the State must prove the unadjudicated offense
beyond a reasonable doubt under Nebraska Evidence Rules.186
Because unfair prejudice in the determination of galindo’s
guilt for the charged murders was not an issue and the evidence
is relevant for sentencing, the admission of the photograph was
controlled by rule 403.
[41,42] In a homicide prosecution, photographs of a victim
may be received into evidence for the purpose of identification,
to show the condition of the body or the nature and extent of
wounds and injuries to it, and to establish malice or intent.187
Even had the State accepted the stipulation, the photograph
remained probative of the condition of the body, malice, and
intent. But we point out that, generally, a defendant cannot
negate an exhibit’s probative value through a tactical decision
to stipulate.188 The State is allowed to present a coherent pic-
ture of the facts of the crimes charged, and it may generally
choose its evidence in so doing.189
[43] The admission of photographs of a gruesome nature
rests largely with the discretion of the trial court, which must
determine their relevancy and weigh their probative value
185 Id. at 733-34, 453 N.W.2d at 374-75 (citations omitted).
186 See § 29-2521(2).
187 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
188 See, State v. Rife, 215 Neb. 132, 337 N.W.2d 724 (1983); State v.
McDaniel, 17 Neb. App. 725, 771 N.W.2d 173 (2009); Butler v. State, 647
N.E.2d 631 (Ind. 1995); Noe v. State, 616 So. 2d 298 (Miss. 1993); State
v. Tharp, 27 Wash. App. 198, 616 P.2d 693 (1980).
189 See, Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L.
Ed. 2d 574 (1997); State v. McPherson, 266 Neb. 734, 668 N.W.2d 504
(2003); State v. McDaniel, supra note 188.
662 	278 NEBRASkA REPORTS

against their prejudicial effect.190 The trial court did not abuse
its discretion in admitting the photograph of Lundell’s body.
(b) Presentence Investigation Considered
by Three-Judge Panel
galindo also claims error stemming from the admission of the
presentence investigation report before the three-judge panel.
galindo’s argument against the admissibility of the presentence
investigation is mostly entangled with arguments against the
validity of L.B. 1 already considered above. However, galindo
also asserts that the presentence investigation report was inad-
missible hearsay; violated his rights to confrontation; and was
not admissible under L.B. 1, at least for certain purposes—on
which galindo is unclear.
Section 29-2521(3) states:
When a jury renders a verdict finding the existence of one
or more aggravating circumstances as provided in section
29-2520, the panel of judges shall, as soon as practi-
cable after receipt of the written report resulting from the
presentence investigation ordered as provided in section
29-2261, hold a hearing to receive evidence of mitigation
and sentence excessiveness or disproportionality.
(Emphasis supplied.) Neb. Rev. Stat. § 29-2261(1) (Cum. Supp.
2006), in turn, stated that in the case of first degree mur-
der where either the jury finds the existence of one or more
aggravating circumstances or the offender waives the right to
a jury determination of aggravators and the information con-
tains a notice of aggravation, “the court shall not commence
the sentencing determination proceeding as provided in sec-
tion 29-2521 without first ordering a presentence investigation
of the offender and according due consideration to a written
report of such investigation.” (Emphasis supplied.)
galindo’s arguments that L.B. 1 does not conceive of the
admission of presentence investigations, and thus that his due
process rights under the scheme were violated, stem from his
assertion that the terms “court” and “panel” as used in these
sections are not interchangeable. He also spends much time
190 State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002).
STATE v. gALINdO 	663
Cite as 278 Neb. 599

arguing what “due consideration”191 might entail. According
to galindo, it is possible that under L.B. 1, the presentence
investigation is meant to be utilized by the trial judge, i.e.,
“the court,” only for the purpose of determining the appro-
priate sentence for crimes other than first degree murder or
for purposes of sending the report on to the department of
Correctional Services. In contrast, when there is a “panel,”
i.e., when the death penalty is at stake, galindo asserts that
the statutory language indicates that, at most, the panel may
consider the presentence investigation for the purpose of find-
ing mitigating circumstances. galindo argues that the panel
may not utilize the report to weigh the aggravating against
mitigating circumstances or in its ultimate sentencing determi-
nation—in large part because of galindo’s previous argument
that the panel cannot consider evidence of aggravating circum-
stances at all.
It is unclear what prohibited usage of the report galindo is
alleging actually occurred. We surmise, however, that he finds
prejudice from the court’s knowledge of anything negative in
the report, including his attempted escape from prison or other
postincarceration behaviors that the sentencing panel specifi-
cally referred to in its consideration of whether there existed
the nonstatutory mitigating circumstance that he cooperated
with authorities. Under galindo’s interpretation of L.B. 1,
the report can be used only for his benefit and can in no way
prejudice him.
galindo attributes too much to the statutes’ alternate usage
of “panel” and “court.” We find nothing in the statutes to sup-
port galindo’s narrow interpretation of the permitted use of
the report. Section 29-2521(3) plainly states that the panel of
judges shall receive the presentence investigation report before
holding a hearing to receive evidence of mitigation and sen-
tence excessiveness or disproportionality. It logically follows
that the report is to be considered for these purposes. As will
be discussed below, in response to galindo’s allegation that the
panel imposed a nonstatutory aggravator, the panel did not use
191 Brief for appellant at 42.
664 	278 NEBRASkA REPORTS

the presentence investigation report for any prohibited purpose
under this reading of the statute.
[44,45] With regard to the hearsay and confrontation argu-
ments, we equally find no merit. The sentencing phase is sepa-
rate and apart from the trial phase. We recognize that under
Nebraska’s sentencing scheme, the Nebraska Evidence Rules
apply to evidence relating to aggravating circumstances.192 But
the Legislature did not provide that the Nebraska Evidence
Rules shall apply to all evidence relevant to sentencing. We
have held that the traditional rules of evidence may be relaxed
following conviction so that the sentencing authority can
receive all information pertinent to the imposition of sen-
tence.193 We conclude that this rule is still applicable to the
sentencing phase of a capital trial except for evidence related to
the finding of statutory aggravating circumstances. Presentence
investigation reports have a particularly established role in
the sentencing process. We have recognized that these reports
are essential to a court’s enlightened and just sentencing.194
And a court does not violate a defendant’s due process rights
by considering information in a presentence report when the
defendant had notice and an opportunity to obtain access to the
information in the report and to deny or explain the informa-
tion to the sentencing authority.195 Further, we have held that
the Confrontation Clause does not attach to the use of presen-
tence reports in capital sentencing proceedings.196 We find no
error stemming from the panel’s consideration of the presen-
tence investigation report.
192 See §§ 29-2520(4)(a) and 29-2521(2).
193 State v. Hessler, supra note 7; State v. Bjorklund, supra note 72; State v.
Strohl, supra note 105; State v. Ryan, supra note 162; State v. Anderson
and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980).
194 See State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986).
195 See State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001) (distinguish-
ing Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393
(1977)). See, e.g., State v. True, 236 Neb. 274, 460 N.W.2d 668 (1990);
State v. Williams, 217 Neb. 539, 352 N.W.2d 538 (1984).
196 See State v. Rust, supra note 194.
STATE v. gALINdO 	665
Cite as 278 Neb. 599

(c) Record From Aggravation Hearing
We 	have 	already 	considered 	this 	argument 	in 	part
V.2(b) above.
(d) Victim Statements Before Sentencing Panel
galindo makes three basic arguments regarding the trial
court’s admission, over his objection, of the victim impact
statements. galindo first argues that because § 29-2521(3) does
not specifically list victim impact statements as something to
be considered by the panel, then any such statements are barred
by statute. Second, relying on what he claims to be the “water-
shed rule”197 announced in Crawford v. Washington,198 galindo
argues that the victim impact statements violate the Sixth
Amendment’s confrontation clause. Finally, galindo asserts
that if victim impact statements are admissible, he has a right
to have any victim impact statements limited to those contained
in the presentence investigation report and limited to “nearest
surviving relative” as defined by § 29-119.
(i) Nebraska Crime Victim’s Reparations Act
Victim impact statements are provided for in the Nebraska
Crime Victim’s Reparations Act (NCVRA).199 The NCVRA
was enacted to enable the rights set forth in article I, § 28, of
the Nebraska Constitution.200 Article I, § 28, of the Nebraska
Constitution specifies that the rights of a “victim of a crime, as
shall be defined by law, or his or her guardian or representa-
tive,” include the right to “make an oral or written statement
at sentencing, parole, pardon, commutation, and conditional
release proceedings.” Article I, § 28, further states that its
“enumeration of certain rights for crime victims shall not be
construed to impair or deny others provided by law or retained
by crime victims” and that “[n]othing in this section shall
197 Brief for appellant at 84.
198 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004).
199 Neb. Rev. Stat. §§ 81-1801 to 81-1842 (Reissue 2008). See, also, Neb.
Rev. Stat. §§ 81-1843 to 81-1851 (Reissue 2008).
200 §§ 81-1801.01 and 81-1851.
666 	278 NEBRASkA REPORTS

constitute a basis for error in favor of a defendant in any crimi-
nal proceeding . . . .”
Section 81-1848 of the NCVRA states that victims, as
defined in § 29-119, have certain enumerated rights, including
the “right to make a written or oral impact statement to be used
in the probation officer’s preparation of a presentence investi-
gation report concerning the defendant”201 and the right “to
submit a written impact statement at the sentencing proceeding
or to read his or her impact statement submitted pursuant to
subdivision (1)(d)(iv).”202
“Victim” is defined in § 29-119 in relevant part as “[i]n the
case of a homicide, . . . the nearest surviving relative under
the law as provided by § 30-2303 but does not include the
alleged perpetrator of the homicide.” Neb. Rev. Stat. § 30-2303
(Reissue 2008) describes the order of intestate succession.
(ii) L.B. 1
[46] galindo is fundamentally mistaken in his apparent
belief that principles of strict construction of criminal statutes
mandate that those things not specifically listed are thereby
prohibited. This is especially true where other statutes explic-
itly provide for the admissibility of those things upon which
the first statute is silent. In interpreting statutes, all existing
acts should be considered.203 And, in the absence of clear legis-
lative intent, the construction of a statute will not be adopted
which has the effect of nullifying another statute.204 We find no
merit to galindo’s contention that L.B. 1 prohibits the panel’s
consideration of victim impact statements.
(iii) Confrontation
[47] The U.S. Supreme Court has held that victim impact
statements considered at sentencing to show the personal
characteristics of the victim or the emotional impact of the
201 § 81-1848(1)(d)(iv).
202 § 81-1848(1)(d)(vii).
203 Whipps Land & Cattle Co. v. Level 3 Communications, 265 Neb. 472, 658
N.W.2d 258 (2003).
204 Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 (2001).
STATE v. gALINdO 	667
Cite as 278 Neb. 599

crime on the family do not violate the U.S. Constitution.205
Furthermore, as already mentioned, we have long held that the
Sixth Amendment right to be “‘confronted with the witnesses
against’” one is not applicable to the sentencing phase of a
criminal trial.206 But galindo claims this precedent is no longer
good law after the U.S. Supreme Court’s decision in Crawford.
galindo asserts that victim impact statements fall under the
definition in Crawford of “‘testimonial’ statements”207 and
that therefore, he has a right to cross-examine the statements.
Although a Crawford analysis is equally applicable to some
of galindo’s other confrontation-based arguments against the
admissibility of evidence before the panel, it is only in the con-
text of the victim impact statements that his argument is fully
articulated. And so, it is here that we discuss it.
[48] Paraphrasing the definition in Crawford of a testimonial
statement, galindo asserts that “[v]ictim impact statements are
solemn declarations or affirmations made for the purpose of
establishing or proving some fact, namely, the impact a victim’s
death has had on family members.”208 Of course, galindo does
not go so far as to actually contest the sincerity of the victims’
sentiments expressed in the impact statements. He does not so
much lament the inability to cross-examine the victims as the
fact that the victims’ statements were considered at all. In fact,
the record is unclear as to whether galindo’s Crawford objec-
tion was to all the victims’ statements or was instead limited
to the State’s proposed introduction of a videotape containing
victim statements, an action which the trial court disallowed.
We conclude that Crawford has no effect on the longstanding
proposition that the right to confrontation is inapplicable to
sentencing proceedings.
205 Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720
(1991). See, also, State v. Bjorklund, supra note 72; State v. Ryan, 257
Neb. 635, 601 N.W.2d 473 (1999).
206 State v. Cook, supra note 65, 236 Neb. at 644, 463 N.W.2d at 579. Accord,
State v. Barker, supra note 65; State v. Williams, supra note 195; State v.
Reeves, supra note 127; State v. Anderson and Hochstein, supra note 193.
207 Crawford v. Washington, supra note 198, 541 U.S. at 51.
208 Brief for appellant at 85.
668 	278 NEBRASkA REPORTS

The Sixth Amendment’s Confrontation Clause provides that
“‘[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.’”209
Crawford considered the meaning of the phrase “witnesses
against him” and to what extent an out-of-court statement was
a “witness against” the defendant. The Court held that any
testimonial statement was subject to the defendant’s right to
confrontation. The pivotal holding was that “testimonial state-
ments”210 could not be admitted against a defendant at trial
without an opportunity to cross-examine—regardless of rules
of evidence that would allow the statements under “amorphous
notions of ‘reliability.’”211
The Court in Crawford did not address in what stage of the
trial proceedings confrontation rights apply. It only considered
to what type of evidence that right applies. As such, Crawford
did not abrogate precedent that the right is inapplicable to
sentencing proceedings. Indeed, as the Court in Crawford dis-
cussed, the concern of the Confrontation Clause is the right
to confront one’s “accusers.”212 A defendant cannot be found
guilty based on accusations of witnesses whom the defendant
has not been able to cross-examine.213 In our bifurcated system
of guilt and sentencing, however, there are no longer “accusers”
at the sentencing stage. At the sentencing stage, the accusations
have been resolved by the trier of fact against the defendant.
The defendant is no longer the accused, but the convicted.
The U.S. Supreme Court has explained that “[w]hatever
the prevailing sentencing philosophy, the sentencing author-
ity has always been free to consider a wide range of rele-
vant material.”214
[S]ince the American colonies became a nation, courts
in this country and in England practiced a policy under
209 Crawford v. Washington, supra note 198, 541 U.S. at 38.
210 Id., 541 U.S. at 59.
211 Id., 541 U.S. at 61.
212 Id., 541 U.S. at 43.
213 Crawford v. Washington, supra note 198.
214 Payne v. Tennessee, supra note 205, 501 U.S. at 820-21.
STATE v. gALINdO 	669
Cite as 278 Neb. 599

which a sentencing judge could exercise a wide discretion
in the sources and types of evidence used to assist him
in determining the kind and extent of punishment to be
imposed within limits fixed by law.215
Essential to the selection of an appropriate sentence is the
possession of the fullest information possible concerning the
defendant’s life and characteristics.216 For this reason, we agree
with most courts that have addressed the applicability of
Crawford to the confrontation analysis in sentencing proceed-
ings, and we hold that it in no way requires alteration of the
proposition that Sixth Amendment rights are inapplicable dur-
ing sentencing.217
(iv) Neither Nearest Surviving Relative Under
§ 30-2303 nor Contained in Presentence
Investigation Report
Finally, we find no merit to galindo’s argument that the trial
court committed reversible error in allowing relatives to testify
that may not be considered the nearest surviving relatives under
§ 30-2303. The definition of “victim” upon which galindo
relies merely provides for a baseline right, under the NCVRA,
to give a victim impact statement. The NCVRA does not seek
to limit the sentencing court’s traditional discretion to consider
evidence from a variety of sources. For similar reasons, we find
no merit to galindo’s strict interpretation of the NCVRA to
conclude that no victim impact statement is admissible before
the sentencer unless it was first contained in the presentence
investigation. In summary, we find no error stemming from the
215 Williams v. New York, 337 U.S. 241, 246, 69 S. Ct. 1079, 93 L. Ed. 1337
(1949).
216 See id.
217 See, e.g., U.S. v. Monteiro, 417 F.3d 208 (1st Cir. 2005); U.S. v. Luciano,
414 F.3d 174 (1st Cir. 2005); U.S. v. Martinez, 413 F.3d 239 (2d Cir. 2005);
U.S. v. Katzopoulos, 437 F.3d 569 (6th Cir. 2006); U.S. v. Littlesun, 444
F.3d 1196 (9th Cir. 2006); U.S. v. Chau, 426 F.3d 1318 (11th Cir. 2005);
State v. McGill, 213 Ariz. 147, 140 P.3d 930 (2006). See, also, Szabo v.
Walls, 313 F.3d 392 (7th Cir. 2002); U.S. v. Fleck, 413 F.3d 883 (8th Cir.
2005); U.S. v. Powell, 973 F.2d 885 (10th Cir. 1992); U.S. v. Cantellano,
430 F.3d 1142 (11th Cir. 2005).
670 	278 NEBRASkA REPORTS

three-judge panel’s consideration of the victim impact state-
ments made before it.
(e) Failure to Consider First degree Murder Cases in
Which defendant Was Not Sentenced to
death and “Baldus Report”
galindo’s counsel asked the sentencing panel to receive
into evidence all of the first degree murder sentencing orders
in Nebraska and also a certain report on homicide cases in
Nebraska,218 what he refers to as the “Baldus Report,” although
it is not commonly known under that title.219 The report gives
a narrative of the facts involved in all death-eligible cases
prosecuted from 1973 to 1999. It was written for the Nebraska
Commission on Law Enforcement and Criminal Justice during
the time that L.B. 1 was under consideration. The report ana-
lyzes the impact of aggravating and mitigating circumstances
on prosecutorial and judicial decisionmaking and identifies any
geographic or racial facts in sentencing. The sentencing panel,
citing State v. Lotter220 and State v. Palmer,221 concluded that it
would review only those cases in which the death penalty had
been imposed. The panel thus reviewed 15 cases, commenc-
ing in 1973, in which the death penalty was imposed. It found
that the sentences of death in galindo’s case was not excessive
or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant. For the reasons
explained below, we find no error.
(i) Non-Death-Penalty First Degree
Murder Convictions
galindo argues that § 29-2521(3) does not limit the sentenc-
ing panel’s review to only those cases where the death penalty
218 david C. Baldus et al., Final Report on the disposition of Nebraska Capital
and Non-Capital Homicide Cases (1973-1999): A Legal and Empirical
Analysis (2002).
219 See david C. Baldus et al., Racial Discrimination and the Death Penalty
in the Post-Furman Era: An Empirical and Legal Overview, With Recent
Findings From Philadelphia, 83 Cornell L. Rev. 1638 (1998).
220 State v. Lotter, supra note 162.
221 State v. Palmer, supra note 45.
STATE v. gALINdO 	671
Cite as 278 Neb. 599

is imposed, but instead plainly mandates that the panel consider
all similar cases. galindo concedes that the Eighth Amendment
does not require a court to engage in a proportionality review.
He claims instead that his due process right to the procedures
afforded by the statute was violated.222 galindo also claims his
right to a fair hearing on proportionality was denied, because
merely considering cases where the death penalty was imposed
does not reveal whether those who are sentenced to death are
being discriminated against.
Section 29-2521(3) states that the sentencing panel shall hold
a hearing to receive evidence of mitigation and sentence exces-
siveness or disproportionality. It states that “[e]vidence may
be presented as to any matter that the presiding judge deems
relevant to . . . (b) sentence excessiveness or disproportionality
as provided in subdivision (3) of section 29-2522.”223 Section
29-2522(3), in turn, states that the sentencing determination
shall be based, in addition to the aggravating and mitigating
circumstances, on “[w]hether the sentence of death is excessive
or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.”
In Bjorklund, we held that proportionality review by the sen-
tencing body entails consideration only of other cases in which
the death penalty has been imposed. Specifically, we held that
the term “‘similar cases,’” as used in § 29-2522, refers to cases
where the defendant was sentenced to death.224 We have since
affirmed this holding in Lotter.225 The case law upon which
galindo relies was prior to our holding in Bjorklund, and
galindo gives us no compelling reason to reconsider that hold-
ing. The U.S. Supreme Court has explained that proportionality
review is not a constitutionally required means of ensuring,
under the 8th and 14th Amendments, that the death sentence
222 See Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29
(1984).
223 § 29-2521(3).
224 State v. Bjorklund, supra note 72, 258 Neb. at 482, 604 N.W.2d at 213.
225 State v. Lotter, supra note 162. See, also, State v. Dunster, supra note
195.
672 	278 NEBRASkA REPORTS

not be “so wantonly and so freakishly imposed.”226 And we
find no merit to galindo’s argument that he was denied a fair
hearing on proportionality by considering only death pen-
alty cases.
(ii) “Baldus Report”
The evidence referred to as the “Baldus Report” concludes
that compared to other jurisdictions, the Nebraska capital sys-
tem appears to be reasonably consistent and successful in limit-
ing death sentences to the most culpable offenders.227 The report
concluded that there is no significant evidence of the disparate
treatment of defendants based on the race of the defendant or
the race of the victim.228 The report has little if any relevance
to galindo’s sentencing proceedings. As such, we conclude that
the sentencing panel did not abuse its discretion in refusing to
admit this report.
(f) Nonstatutory Mitigators
We next consider galindo’s assertion that the sentencing
panel improperly found and imposed against him a nonstatu-
tory aggravating circumstance. In its sentencing order, the
panel first lists the five aggravating circumstances found by
the jury. The panel then concludes that no statutory mitigating
circumstances existed. After that, the panel considered whether
any nonstatutory mitigating circumstances were present. In
particular, it considered the nonstatutory mitigating circum-
stance proffered by galindo that he had cooperated with law
enforcement personnel following his arrest. The sentencing
order states:
The panel determines that this mitigating circumstance
does exist. This mitigating circumstance is offset, in part,
by the fact that [galindo] does not demonstrate remorse
for his actions. His cooperation has been tempered by
226 Furman v. Georgia, 408 U.S. 238, 310, 92 S. Ct. 2726, 33 L. Ed. 2d 346
(1972) (Stewart, J., concurring). See, also, Pulley v. Harris, supra note
222.
227 See Baldus et al., supra note 218.
228 Id.
STATE v. gALINdO 	673
Cite as 278 Neb. 599

his actions and behavior during his post-arrest incarcera-
tion. The panel gives this mitigating factor little weight in
determining the sentences to be imposed.
galindo’s postarrest actions and behavior referred to by the
panel included an attempted escape from prison and a general
lack of remorse for his crimes.
The next section of the panel’s order sets forth its task in
making the ultimate determination of whether to impose the
death penalty. The panel explained that “[w]eighed against the
[five] aggravating circumstances are no statutory mitigating
circumstances and one non-statutory mitigating circumstance,
to which the panel gives little weight.” The panel stated that it
had some concern with historic questions surrounding aggra-
vating circumstance (1)(c), but even disregarding that aggravat-
ing circumstance, “the remaining factors are not approached or
exceeded in weight by the one mitigating circumstance.”
According to galindo, the panel’s reference to his postarrest
behavior was effectively the imposition of additional “non-
statutory aggravators”229 against him. Its consideration, argues
galindo, violated not only L.B. 1, but the Eighth Amendment
principle under Furman v. Georgia230 that a legislature specifi-
cally define aggravating circumstances that make a person eli-
gible for the death penalty.
We conclude that the panel, in its sentencing calculus,
did not consider any nonstatutory aggravating circumstance.
Instead, the court’s order, read in its entirety, simply determines
the extent to which galindo had cooperated with law enforce-
ment. The panel was not obligated to consider the nonstatutory
mitigating circumstance of postarrest cooperation in a vacuum
of a single act without reference to galindo’s motivation.
7. eleCtroCutioN AS C ruel ANd uNuSuAl puNiShmeNt
galindo’s challenge to the electric chair as a method of
implementing the death penalty was made prior to our opinion
in Mata II.231 In accordance with our opinion therein, we do
229 Brief for appellant at 91.
230 Furman v. Georgia, supra note 226.
231 Mata II, supra note 33.
674 	278 NEBRASkA REPORTS

find merit to this assignment of error. But, in accordance with
that opinion, we nevertheless affirm the sentence of death.
8. de Novo revieW
When a death sentence is appealed, this court conducts a de
novo review of the record to determine whether the aggravat-
ing and mitigating circumstances support the imposition of the
death penalty; we must also determine whether the sentence is
excessive or disproportionate to the penalty imposed in similar
cases.232 We have reviewed our relevant decisions on direct
appeal from other cases in which aggravating circumstances
were found and the death penalty was imposed by the district
court.233 In particular, we take note of State v. Moore,234 wherein
we affirmed the sentence of death for the defendant’s convic-
tions of two counts of first degree murder of two cabdrivers
during the perpetration of a robbery.
We agree with the sentencing panel that the five aggravating
circumstances found in this case far outweigh the nonstatutory
mitigating circumstance of galindo’s cooperation with authori-
ties. galindo knowingly participated in a dangerous crime in
which five innocent victims were almost immediately shot
and killed without any provocation. He planned for this crime
by assisting in the murder of Lundell so that his recruit, Vela,
could prove himself worthy of the robbery. In our de novo
review, we conclude that the sentence of death is proportion-
ate to the nature of the crimes and to the penalty imposed in
similar cases.
VI. CONCLUSION
For the foregoing reasons, we find no merit to galindo’s
assignments of error, except that assignment challenging electro-
cution as the method of death. We affirm the death sentence
against galindo for the murder of five people in an attempted
bank robbery.
A ffirmed.
heAviCAN, C.J., not participating.
232 § 29-2522; State v. Dunster, supra note 195.
233 See, e.g., State v. Gales, supra note 25 (and cases gathered therein).
234 State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
STATE v. gALINdO 	675
Cite as 278 Neb. 599