State v. Torres

upon that information in formulating D.S.’ discharge instruc-
tions. The discharge instructions included a therapy referral and
recommended that a physical examination be conducted. The
trial court did not err in finding that the interview of D.S. was
reasonably pertinent to medical diagnosis and treatment.
The only issue in this appeal was whether the trial court
properly admitted D.S.’ interview over Vigil’s hearsay objec-
tion. We determine that the trial court did not err in finding that
the elements of the medical purpose exception found in rule
803(3) were met. Therefore, Vigil’s assignment of error lacks
merit and we affirm the convictions and sentences imposed
below.
CONCLUSION
For the reasons stated above, we affirm the judgment of the
trial court.
A ffirmed.
H eAvicAn, C.J., WrigHt, and gerrArd, JJ., not participating.
StAte of nebrASkA, Appellee , v. mArco
enrique torreS, Jr ., AppellAnt.
812 N.W.2d 213
Filed February 3, 2012. 	No. S-10-111.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determining
admissibility.
2. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
3. Statutes. The interpretation of a statute presents a question of law.
4. Motions to Suppress: Confessions: Constitutional Law: Appeal and Error. In
reviewing a motion to suppress a confession based on the claimed involuntariness
of the statement, an appellate court applies a two-part standard of review. With
regard to historical facts, an appellate court reviews the trial court’s findings
for clear error. Whether those facts suffice to meet the constitutional standards,
142 	283 NEbRaSka REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

however, is a question of law, which an appellate court reviews independently of
the trial court’s determination.
5. Judgments: Appeal and Error. When issues on appeal present questions of law,
an appellate court has an obligation to reach an independent conclusion irrespec-
tive of the decision of the court below.
6. Sentences: Aggravating and Mitigating Circumstances: Appeal and Error.
When reviewing the sufficiency of the evidence to sustain the trier of fact’s
finding of an aggravating circumstance, the relevant question for the Nebraska
Supreme Court is whether, after viewing the evidence in the light most favorable
to the State, any rational trier of fact could have found the essential elements of
the aggravating circumstance beyond a reasonable doubt.
7. ____: ____: ____. a sentencing panel’s determination of the existence or non-
existence of a mitigating circumstance is subject to de novo review by an appel-
late court.
8. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2008), prohibits the admission of other bad acts evidence for the pur-
pose of demonstrating a person’s propensity to act in a certain manner.
9. ____: ____. Evidence of other crimes which is relevant for any purpose other
than to show the actor’s propensity is admissible under Neb. Evid. R. 404(2),
Neb. Rev. Stat. § 27-404(2) (Reissue 2008).
10. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is
often referred to as having a “special” or “independent” relevance, which means
that its relevance does not depend upon its tendency to show propensity.
11. Rules of Evidence: Other Acts: Appeal and Error. an appellate court’s analy-
sis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008),
considers (1) whether the evidence was relevant for some purpose other than to
prove the character of a person to show that he or she acted in conformity there-
with; (2) whether the probative value of the evidence is substantially outweighed
by its potential for unfair prejudice; and (3) whether the trial court, if requested,
instructed the jury to consider the evidence only for the limited purpose for which
it was admitted.
12. Rules of Evidence. a proponent of evidence offered pursuant to Neb. Evid. R.
404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2008), shall, upon objection to its
admissibility, be required to state on the record the specific purpose or purposes
for which the evidence is being offered, and the trial court shall similarly state the
purpose or purposes for which such evidence is received.
13. Rules of Evidence: Jury Instructions. any limiting instruction given upon
receipt of evidence offered pursuant to Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 2008), shall likewise identify only those specific purposes
for which the evidence was received.
14. Intent: Words and Phrases. Intent is generally defined as the state of mind
accompanying an act.
15. Rules of Evidence: Other Acts. Under Neb. Evid. R. 404(2), Neb. Rev. Stat.
§ 27-404(2) (Reissue 2008), evidence of other crimes or wrongs, while not
admissible to prove the character of a person in order to show that he or she acted
in conformity therewith, is admissible for other purposes, including motive.
STaTE v. TORRES 	143
Cite as 283 Neb. 142

16. Words and Phrases. Though difficult to define, character has been described as
the generalized tendency to act in a particular way.
17. Criminal Law: Words and Phrases. Motive is defined as that which leads or
tempts the mind to indulge in a criminal act.
18. Jury Instructions: Appeal and Error. In making a determination as to whether
the giving of an overly broad jury instruction is harmless, an appellate court must
decide whether the giving of the instruction materially influenced the jury to
reach a verdict adverse to the substantial rights of the defendant.
19. Conspiracy: Hearsay: Rules of Evidence. Neb. Evid. R. 801(4)(b)(v), Neb. Rev.
Stat. § 27-801(4)(b)(v) (Reissue 2008), is applicable regardless of whether the
defendant is charged with conspiracy.
20. ____: ____: ____. before a trier of fact may consider testimony under Neb.
Evid. R. 801(4)(b)(v), Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 2008), a prima
facie case establishing the existence of a conspiracy must be shown by indepen-
dent evidence.
21. Sentences: Death Penalty. That a method of execution is cruel and unusual pun-
ishment bears solely on the legality of the execution of the sentence and not on
the validity of the sentence itself.
22. Statutes: Constitutional Law: Sentences. a law which purports to apply to
events that occurred before the law’s enactment, and which disadvantages a
defendant by creating or enhancing penalties that did not exist when the offense
was committed, is an ex post facto law and will not be endorsed by the courts.
23. Constitutional Law: Appeal and Error. The Nebraska Supreme Court ordinarily
construes Nebraska’s ex post facto clause to provide no greater protections than
those guaranteed by the federal Constitution.
24. Aggravating and Mitigating Circumstances: Mental Distress: Juries. a jury
may not consider a victim’s mental anguish in finding the existence of the aggra-
vating circumstance set forth in Neb. Rev. Stat. § 29-2523(1)(d) (Reissue 2008).
25. Aggravating and Mitigating Circumstances: Proof: Words and Phrases.
Exceptional depravity pertains to the state of mind of the actor and may be proved
by or inferred from the defendant’s conduct at or near the time of the offense.
26. Homicide: Aggravating and Mitigating Circumstances. The Nebraska Supreme
Court has identified specific narrowing factors that support a finding of excep-
tional depravity: (1) apparent relishing of the murder by the killer, (2) infliction
of gratuitous violence on the victim, (3) needless mutilation of the victim, (4)
senselessness of the crime, or (5) helplessness of the victim.
27. Homicide: Aggravating and Mitigating Circumstances: Other Acts: Words
and Phrases. History as contemplated by Neb. Rev. Stat. § 29-2523(1)(a) (Reissue
2008) refers to the individual’s past acts preceding the incident for which he or
she is on trial, and substantial refers to an actual, material, and important history
of acts of terror of a criminal nature, but does not refer to the particular incident
involving the homicide for which he or she is subject to sentence.
28. Sentences: Aggravating and Mitigating Circumstances: Proof. There is no
burden of proof with regard to mitigating circumstances, but because the capital
sentencing statutes do not require the State to disprove the existence of mitigating
circumstances, the risk of nonproduction and nonpersuasion is on the defendant.
144 	283 NEbRaSka REpORTS

29. Aggravating and Mitigating Circumstances: Words and Phrases. For pur-
poses of Neb. Rev. Stat. § 29-2523(2)(c) (Reissue 2008), extreme means that the
disturbance must be existing in the highest or the greatest possible degree, very
great, intense, or most severe.
30. Sentences: Death Penalty: Aggravating and Mitigating Circumstances:
Appeal and Error. In reviewing a sentence of death, the Nebraska Supreme
Court conducts a de novo review of the record to determine whether the aggravat-
ing and mitigating circumstances support the imposition of the death penalty.
31. ____: ____: ____: ____. In reviewing a sentence of death, the Nebraska Supreme
Court considers whether the aggravating circumstances justify imposition of
a sentence of death and whether any mitigating circumstances found to exist
approach or exceed the weight given to the aggravating circumstances.
32. ____: ____: ____: ____. The Nebraska Supreme Court is required, upon appeal,
to determine the propriety of a death sentence by conducting a proportionality
review, comparing the aggravating and mitigating circumstances with those pres-
ent in other cases in which a district court imposed the death penalty.
33. ____: ____: ____: ____. The Nebraska Supreme Court’s proportionality review,
which is separate from the sentencing panel’s, looks only to other cases in which
the death penalty has been imposed and requires the court to compare the aggra-
vating and mitigating circumstances of a case with those present in other cases
in which the death penalty was imposed, and ensure that the sentence imposed
in a case is no greater than those imposed in other cases with the same or simi-
lar circumstances.
appeal from the District Court for Hall County: JAmeS d.
livingSton, Judge. affirmed.
kirk E. Naylor, Jr., and peter k. blakeslee for appellant.
Jon bruning, attorney General, and J. kirk brown for
appellee.
H eAvicAn, c.J., connolly, gerrArd, StepHAn, mccormAck ,
and miller-lermAn, JJ., and inbody, Chief Judge.
H eAvicAn, c.J.
I. INTRODUCTION
Marco Enrique Torres, Jr., was convicted by jury of two
counts of first degree murder, one count of robbery, three counts
of use of a deadly weapon to commit a felony, and one count
of unauthorized use of a financial transaction device. Torres
was sentenced to death on each count of murder, 50 years’ to
50 years’ imprisonment on each of the robbery and use counts,
and 20 months’ to 5 years’ imprisonment for the unauthorized
use of a financial transaction device. In this automatic appeal
STaTE v. TORRES 	145
Cite as 283 Neb. 142

of his conviction and death sentence,1 Torres assigns a number
of errors related to both the trial and sentencing phases of his
trial. We affirm.
II. FaCTUaL baCkGROUND
1. WelfAre cHeck leAdS to
diScovery of victimS
On March 5, 2007, at approximately 8:50 p.m., law enforce-
ment officers responded to a request to perform a welfare check
on the owner of a Grand Island, Nebraska, home, Edward Hall.
The check was requested by Gina padilla, a resident of the
home. In the home, officers discovered Hall’s body, bound with
an orange extension cord, gagged with the belt from a bath-
robe, and seated in an armchair on the first floor of the home.
The body of Timothy Donohue, another resident of the home,
was discovered upstairs.
2. AutopSy reSultS And dnA evidence
autopsies were performed on both Hall and Donohue by a
forensic pathologist. Hall’s autopsy revealed that he had suf-
fered three “contact” gunshot wounds to the head and that
those wounds were made by a small-caliber weapon. Hall’s lips
were purple, suggesting a lack of oxygen prior to his death.
Hall’s cause of death was listed as asphyxiation by gagging,
suffocation, physical restraint, and multiple deeply penetrating
gunshot wounds. The pathologist testified that in any case, the
gunshots would have killed Hall, but that if Hall had not been
shot, he would have asphyxiated.
Donohue’s cause of death was three gunshot wounds to the
head and chest. The pathologist testified that these shots were
fired at close range, again probably contact or near-contact
shots.
The pathologist was unable to give an exact time of death for
either Hall or Donohue, but did testify that it was his opinion
that both died at or around the same time, on March 3, 2007,
or possibly in the early hours of March 4. The pathologist indi-
cated that it was not possible to determine who died first.
1 See Neb. Rev. Stat. § 29-2525 (Reissue 2008).
146 	283 NEbRaSka REpORTS

DNa testing was performed on the bathrobe belt found gag-
ging Hall and the extension cord binding Hall, as well as on
cigarette butts found in Donohue’s room. Torres’ DNa was
found in a mixture with Hall’s DNa on the belt and could not
be excluded as a source of DNa on the extension cord. and
Torres’ DNa was a contributor to DNa mixtures found on the
cigarette butts.
3. relAtionSHip betWeen HAll
And otHer plAyerS
From the record, it appears that Hall was a generous person.
This generosity was apparently responsible for Donohue’s tak-
ing up residence in Hall’s home—Hall allowed Donohue to
move into a room on the second floor. This generosity was also
apparently the reason for padilla’s presence in Hall’s home; she
moved in after agreeing to keep the house clean and look after
Hall’s many cats.
padilla was dating a man named “Jose Cross,” who dealt
drugs in the Grand Island area. Cross eventually moved into
Hall’s home and used the house as a base for his drug busi-
ness. Through that drug business, Cross was acquainted with
a man named “William packer,” who also ran an area drug
business. It was through packer that Torres met Cross, padilla,
and Donohue.
4. torreS obtAinS gun
In early February 2007, Torres informed packer that he
wished to obtain a gun. packer took Torres to the home of
a man who arranged for the delivery of a weapon. The man
left Torres and packer alone in a room with the weapon, and,
according to the man’s testimony, after Torres and packer left
the room, the gun was also gone. The man further testified that
the gun in question was a black or brown .22-caliber revolver.
5. eventS of mArcH 2007
On March 1, 2007, Torres contacted Cross about staying at
Hall’s home, as he had nowhere else to go. Cross was reluctant,
but Donohue agreed to allow Torres to stay in his room.
Early the next morning, March 2, 2007, Cross and padilla
left Hall’s home for a planned trip to Texas with padilla’s
STaTE v. TORRES 	147
Cite as 283 Neb. 142

mother, leaving Torres with Hall and Donohue. according to
Cross, Torres, who was originally from Texas, was interested in
returning to Texas. Cross testified that he did not want Torres
to know that the couple was leaving or where they were going,
because he knew Torres had a gun.
It is not clear from the record what Torres, Donohue, and
Hall did during the daytime hours of March 2, 2007. but at
approximately 11 p.m., Hall went to a discount store in Grand
Island to purchase a home theater system. afterward, Hall, who
was driving his white Ford Focus station wagon, took a friend
and her son out for a late meal. Hall paid for the meal at 12:49
a.m. on March 3 and then dropped off the friend and her son
at the son’s apartment. This was apparently the last time Hall
was seen alive; another witness testified that she had daily or
near-daily contact with Hall, but that the last time she spoke
with him was on March 2.
bank records show that between 2:41 and 2:54 a.m. on
March 3, 2007, Hall’s automatic teller machine (aTM) card
was used several times. aTM security footage reveals that it
was Torres who was using Hall’s card. bank records indicated
that the last transaction, at 2:54 a.m., occurred at a discount
store in Grand Island. Security footage from that store shows
Torres entering the store alone at approximately 2:52 a.m. and
leaving at approximately 3:30 a.m. Torres then apparently went
to a motel in Grand Island.
Telephone records from the motel show that repeated calls
were made to Cross’ cellular telephone from rooms in which
Torres was known to have stayed. according to Cross, in one
call, Torres allegedly asked for drugs, so Cross arranged for his
brother, who was also in Grand Island, to bring some drugs to
Torres. In a second call, Torres allegedly told Cross that Cross
and padilla should not go back to Hall’s house without letting
Torres know. Torres then indicated that after Cross and padilla
had left Hall’s house earlier the previous day, Donohue became
angry and tried to break into Cross and padilla’s room. When
Torres tried to stop him, Hall came upstairs and mentioned
something about calling the police. Cross testified, “[Torres]
told me that, you know, can’t have cops, and he had to put
them to sleep.” Cross testified that he understood that to mean
148 	283 NEbRaSka REpORTS

that Torres had killed Hall and Donohue. Cross testified that he
did not remember when these conversations took place; tele-
phone records suggest that the calls were probably placed at 10
a.m. or later on March 3, 2007.
Torres checked out of the motel in Grand Island on March
5, 2007. Several days later, on or about March 8, Torres arrived
in Houston, Texas. Once in Houston, he contacted an ex-
girlfriend who resided there. The ex-girlfriend met Torres, who
was driving a white station wagon, and accompanied him to a
local motel.
While at the motel, Torres learned of the investigation into
the murders of Hall and Donohue and that he was wanted for
questioning. Torres also learned that law enforcement was on
the lookout for Hall’s white Ford Focus station wagon. That
vehicle was later found in Texas and had been burned. a partial
vehicle identification number was traced back to Hall and to
the investigation into Hall’s murder. Torres’ ex-girlfriend testi-
fied that she accompanied Torres to the area where the burned
station wagon was recovered, but that she did not actually wit-
ness Torres set fire to the vehicle. Houston area law enforce-
ment later determined that Torres was staying in the area and
apprehended him on March 26, 2007.
6. torreS intervieWed in texAS
Grand Island law enforcement officers went to Texas to
interview Torres. according to the testimony of a Grand Island
investigator, one of the first things Torres did during the inter-
view was deny killing “those people.” During the interview,
Torres indicated that he knew packer, Cross, and padilla, as
well as some of their acquaintances, including Hall, Donohue,
and the man who arranged for the delivery of a weapon to
Torres. Torres acknowledged that he used drugs with some of
these individuals.
Torres then indicated that packer, Cross, and padilla were
manufacturing a methamphetamine-like substance at Hall’s
house with the assistance of Donohue and with Hall’s knowl-
edge. During this interview, Torres initially blamed Cross and
padilla for the murders and, when he learned both had alibis,
shifted the blame to packer.
STaTE v. TORRES 	149
Cite as 283 Neb. 142

In Torres’ possession when he was apprehended was packer’s
cellular telephone. Torres explained that he had gotten the tele-
phone from packer and also that Hall had given Torres Hall’s
car and aTM card. at one point, Torres indicated that Cross
and padilla went with him to the aTM to use the card. but
Torres also told law enforcement that padilla had given him
Hall’s aTM card, jokingly noting to Torres, “[h]a ha, I have . . .
Hall’s card” as she did so. Torres stated that he used the card at
the discount store only to prove to padilla that she had already
taken all of the money out of the account. In addition, law
enforcement recovered from Torres’ motel room in Houston
ammunition for a .22-caliber weapon.
7. triAl
Torres’ trial was held august 17 to 27, 2009. The jury found
him guilty of two counts of first degree murder, one count of
robbery, three counts of use of a deadly weapon to commit a
felony, and one count of unauthorized use of a financial trans-
action device.
8. penAlty pHASe
The State alleged four aggravating factors pursuant to Neb.
Rev. Stat. § 29-2523 (Reissue 2008): (1) The murder was com-
mitted in an effort to conceal the commission of a crime or to
conceal the identity of the perpetrator of such crime2; (2) at the
time the murder was committed, the offender also committed
another murder3; (3) the murder was especially heinous, atro-
cious, cruel, or manifested exceptional depravity by ordinary
standards of morality and intelligence4; and (4) the offender
has a substantial prior history of serious assaultive or terror-
izing criminal behavior.5 Following his convictions, pursuant
to Neb. Rev. Stat. § 29-2520(3) (Reissue 2008), Torres waived
his right to a jury determination of whether the aggravat-
ing circumstances had been met. On November 13, 2009, a
2 § 29-2523(1)(b).
3 § 29-2523(1)(e).
4 § 29-2523(1)(d).
5 § 29-2523(1)(a).
150 	283 NEbRaSka REpORTS

three-judge panel was convened for a sentencing determination
hearing. at that hearing, the State offered into evidence the
bill of exceptions from Torres’ trial, as well as testimony from
several law enforcement officers. Torres introduced evidence
regarding the effects of methamphetamine on the body.
On January 29, 2010, the sentencing panel made written
findings as required by statute and found all four aggravating
factors as alleged above with respect to Hall’s murder and three
of the four aggravating factors with respect to Donohue’s mur-
der. With respect to Donohue, the panel declined to find that
his murder was “especially heinous, atrocious, cruel, or mani-
fested exceptional depravity by ordinary standards of morality
and intelligence.”6 The panel also considered and rejected all
statutory and nonstatutory mitigating factors.
We are now presented with Torres’ automatic appeal of his
convictions and sentences.
III. aSSIGNMENTS OF ERROR
Torres assigns, renumbered, that the district court erred in
(1) admitting evidence of certain prior acts of Torres under
Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue
2008); (2) admitting the testimony of two witnesses regarding
Torres’ alleged efforts to get those witnesses to testify falsely
on Torres’ behalf; and (3) overruling his motion to suppress.
Torres also assigns, restated and consolidated, that the sen-
tencing panel erred in (4) receiving for purposes of the State’s
proof of aggravating circumstances the trial court’s bill of
exceptions over Torres’ objections; (5) its retroactive appli-
cation of Neb. Rev. Stat. §§ 83-964 to 83-972 (Cum. Supp.
2010); (6) not finding that § 83-964 is unconstitutional in
violation of the distribution of powers clause of the Nebraska
Constitution,7 Nebraska case law, and the Due process and
Equal protection Clauses of the 14th amendment to the U.S.
Constitution; (7) not finding Neb. Rev. Stat. §§ 29-2519 to
29-2546 (Reissue 2008 & Cum. Supp. 2010) unconstitutional
on their face; (8) not finding § 29-2523(1)(a), (b), and (d)
6 § 29-2523(1)(d).
7 Neb. Const. art. II, § 1.
STaTE v. TORRES 	151
Cite as 283 Neb. 142

unconstitutional on its face, as interpreted by this court and
as applied to Torres; (9) using “the victim’s ‘mental suffering’
and the ‘victim’s uncertainty as to [his] ultimate fate’” as sup-
port for finding that Hall’s murder was “especially heinous,
atrocious, cruel” under § 29-2523(1)(d) and also finding that
the State proved this aggravator beyond a reasonable doubt;
(10) finding that the State proved beyond a reasonable doubt
the existence of the aggravators under § 29-2523(1)(a) and (b);
and (11) concluding that no statutory or nonstatutory mitigat-
ing factors existed.
IV. STaNDaRD OF REVIEW
[1,2] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility.8 It is within the discretion of the trial court to deter-
mine relevancy and admissibility of evidence of other wrongs
or acts under rule 404(2) and Neb. Evid. R. 403,9 and the
trial court’s decision will not be reversed absent an abuse of
discretion.10
[3] The 	interpretation 	of 	a 	statute 	presents 	a 	question
of law.11
[4] In reviewing a motion to suppress a confession based
on the claimed involuntariness of the statement, an appel-
late court applies a two-part standard of review. With regard
to historical facts, an appellate court reviews the trial court’s
findings for clear error. Whether those facts suffice to meet the
constitutional standards, however, is a question of law, which
an appellate court reviews independently of the trial court’s
determination.12
8 State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
9 Neb. Rev. Stat. § 27-403 (Reissue 2008).
10 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
11 See Middle Niobrara NRD v. Department of Nat. Resources, 281 Neb. 634,
799 N.W.2d 305 (2011).
12 State v. Seberger, 279 Neb. 576, 779 N.W.2d 362 (2010).
152 	283 NEbRaSka REpORTS

[5] When issues on appeal present questions of law, an
appellate court has an obligation to reach an independent con-
clusion irrespective of the decision of the court below.13
[6] When reviewing the sufficiency of the evidence to sus-
tain the trier of fact’s finding of an aggravating circumstance,
the relevant question for this court is whether, after viewing
the evidence in the light most favorable to the State, any ratio-
nal trier of fact could have found the essential elements of the
aggravating circumstance beyond a reasonable doubt.14
[7] The sentencing panel’s determination of the existence or
nonexistence of a mitigating circumstance is subject to de novo
review by this court.15
V. aNaLYSIS
1. rule 404 evidence
In his first assignment of error, Torres argues that the district
court erred in admitting evidence of a prior incident wherein
Torres kidnapped packer and then held packer, Cross, and
padilla at gunpoint. On February 12, 2007, packer called Cross
and asked Cross for permission to stop by Hall’s residence,
where Cross was living. Cross agreed. but, Cross said, when
packer arrived, Torres was with packer, holding packer at
gunpoint. Torres then forced Cross and packer into Cross and
padilla’s room. Torres made Cross bind packer with duct tape.
Torres took packer’s aTM card, obtained the personal iden-
tification number for the card, and ordered Cross and padilla
to withdraw nearly $800 from the account. Cross gave the
money to Torres. Eventually, Torres released packer, Cross, and
padilla, but took and kept packer’s money and packer’s cellular
telephone. Cross testified that Torres let packer go after Cross
agreed to provide transportation for Torres to Texas.
During this event, Torres made packer contact the Lincoln
and Omaha airport authorities, as well as two airlines and vari-
ous other individuals, in order to obtain a plane ticket to get
13 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
14 Id.
15 See id.
STaTE v. TORRES 	153
Cite as 283 Neb. 142

Torres to Texas. apparently, Torres planned to fly to Texas to
meet with some associates. Meanwhile, Cross was to drive to
Texas to deliver a package of “ice,” a potent form of metham-
phetamine, for Torres. Though apparently packer was unable
to provide the “ice” to Torres, Torres attempted to fill the
order so it could be taken to Texas. Though the record is not
clear about the details, Torres apparently kidnapped packer in
an attempt to make him fill the order for “ice,” which Torres
needed to be delivered to Texas. Cross testified that during the
kidnapping and the days following, he made certain promises
to Torres involving driving Torres to Texas because Cross
wanted to “get rid of the problem, which was to take [Torres]
back to [Texas].”
We note that Torres was, in a separate case, convicted of
kidnapping and robbery and the two associated use of a fire-
arm counts for the February 2007 incident described above
and was sentenced to consecutive terms totaling 90 to 140
years’ imprisonment.
[8-11] Section 27-404(2) provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Rule 404(2) prohibits the admission of other bad acts evidence
for the purpose of demonstrating a person’s propensity to act in
a certain manner.16 but evidence of other crimes which is rele-
vant for any purpose other than to show the actor’s propensity
is admissible under rule 404(2).17 Evidence that is offered for
a proper purpose is often referred to as having a “special” or
“independent” relevance, which means that its relevance does
not depend upon its tendency to show propensity.18 an appel-
late court’s analysis under rule 404(2) considers (1) whether the
16 State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
17 Id.
18 Id.
154 	283 NEbRaSka REpORTS

evidence was relevant for some purpose other than to prove the
character of a person to show that he or she acted in conform-
ity therewith; (2) whether the probative value of the evidence
is substantially outweighed by its potential for unfair prejudice;
and (3) whether the trial court, if requested, instructed the jury
to consider the evidence only for the limited purpose for which
it was admitted.19
[12,13] a proponent of evidence offered pursuant to rule
404(2) shall, upon objection to its admissibility, be required to
state on the record the specific purpose or purposes for which
the evidence is being offered, and the trial court shall simi-
larly state the purpose or purposes for which such evidence is
received.20 and any limiting instruction given upon receipt of
such evidence shall likewise identify only those specific pur-
poses for which the evidence was received.21
before trial, both the State and Torres filed motions regard-
ing the admissibility of the evidence relating to this kidnapping
and robbery. a hearing was held on these motions, at which
time the bill of exceptions from Torres’ trial on the kidnapping
charge was admitted into evidence. Following the hearing, the
district court overruled Torres’ motion and found by clear and
convincing evidence that the incident did occur and was admis-
sible for purposes of motive, intent, plan, knowledge, opportu-
nity, and identity. The district court noted:
In this particular set of facts the evidence . . . goes to
the relationship between [Torres] and the location of the
criminal activity alleged; it goes to the method used in
the criminal activity alleged such as the use of a gun, the
tying up of individuals and goes to motive of obtaining
money and transportation to the State of Texas. The Court
will allow the evidence for these limited purposes under
[rule 404(2)].
However, at trial, the district court admitted the evidence as
relevant only to show Torres’ intent, motive, and opportunity.
19 Id.
20 State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
21 See id.
STaTE v. TORRES 	155
Cite as 283 Neb. 142

The jury was instructed accordingly, both at the time the evi-
dence was admitted and in the final instructions to the jury
prior to the submission of the case.
On appeal, Torres argues that the evidence of this kidnap-
ping was inadmissible, as it was not independently relevant,
but, rather, was relevant only to show his propensity to be
violent.
because the jury was instructed only with respect to motive,
intent, and opportunity, this court will address only those rea-
sons for independent relevance. We affirm the district court’s
decision insofar as it concluded that this evidence was admis-
sible to show Torres’ motive, but conclude that this evidence
was not relevant to show his intent or opportunity. as such, it
was error for the district court to instruct the jury that it could
consider the evidence with respect to intent and opportunity.
However, as we explain below, we conclude that the admission
of this evidence for these latter reasons was harmless.
(a) Opportunity
We begin by considering whether this evidence was rele-
vant to show Torres’ opportunity to rob and murder Hall and
Donohue. The district court explained that the kidnapping
offered evidence of the relationship between Torres and Hall’s
house. but we disagree that this prior incident is relevant to
show opportunity.
In essence, the district court found that such evidence was
relevant to show that because Torres had been in the house
when he kidnapped and robbed packer, Cross, and padilla, he
had the opportunity to later enter the house to rob and murder
Hall and Donohue. but there is no evidence in the record sug-
gesting that this was so. For example, there is no evidence that
by having been in the house before, Torres had access to a key,
security code, or any other information that might give him the
opportunity to again enter the house for the purpose of robbing
and murdering Hall and Donohue. and as with intent, oppor-
tunity was largely undisputed: Other evidence established that
Torres was staying at Hall’s house, and it would not have been
necessary to admit evidence of the entire incident in order to
establish that Torres had been to Hall’s house before. as such,
156 	283 NEbRaSka REpORTS

we conclude that the prior kidnapping incident was inadmis-
sible to show Torres’ opportunity.
(b) Intent
[14] Intent is generally defined as “[t]he state of mind
accompanying an act.”22 In this case, the State was required to
prove that Torres intended to steal from Hall and that he pur-
posely and with deliberate and premeditated malice murdered
Hall and Donohue. but we do not find that intent was at issue
in this case. Here, there is no dispute that these crimes were
intentional; there is only a dispute over whether Torres com-
mitted them. We agree with Torres that this evidence was not
admissible to show his intent where intent was not at issue.
(c) Motive
We next address motive. The district court concluded the
February 2007 incident showed that Torres’ motive to restrain,
rob, and kill Hall was to obtain money and transportation to
Texas, which was something that Torres, during that prior
incident, attempted to obtain in the same manner from packer,
Cross, and padilla.
On appeal, Torres argues that the evidence relating to the
kidnapping of packer, Cross, and padilla is simply character, or
propensity, evidence and relevant only to show that he is a vio-
lent person and that the evidence is therefore inadmissible. We
disagree and instead conclude that the district court correctly
admitted the evidence to show Torres’ motive.
[15-17] Under rule 404(2), “[e]vidence of other crimes or
wrongs,” while “not admissible to prove the character of a
person in order to show that he or she acted in conformity
therewith,” is admissible for other purposes, including motive.
Though difficult to define, character has been described as the
generalized tendency to act in a particular way.23 On the other
hand, motive is defined more specifically as that which leads or
22 black’s Law Dictionary 881 (9th ed. 2009).
23 David p. Leonard, The New Wigmore: Evidence of Other Misconduct and
Similar Events § 8.3 (Richard D. Friedman ed. 2009).
STaTE v. TORRES 	157
Cite as 283 Neb. 142

tempts the mind to indulge in a criminal act.24 a person’s prior
actions can help to show motive because of the light they shed
on that person’s state of mind.25 So in the case of motive, the
prior act and the uncharged act need not be similar.26
There is a fine line between prior bad acts evidence that goes
only to the character of the actor and prior bad acts evidence
that speaks upon the actor’s motive to commit a later crime.
and the weaker the inferences of motive, the less probative the
evidence on the ultimate issue of identity and the stronger the
argument that the court should exclude the evidence to avoid
the risk of unfair prejudice.27
We agree that motive reasoning requires propensity infer-
ences. but, so long as the evidence is also relevant for reasons
not based on the defendant’s character, it is admissible under
rule 404(2). as one commentator noted:
The rule regulating the circumstantial use of uncharged
misconduct . . . only forbids the use of the evidence
[when such use is based upon a moral judgment of an
actor’s character traits]. If there is a rational chain of
inferences that does not require an evaluation of character,
the court may admit the evidence. That is the purpose and
message of the uncharged misconduct rule. as one author
put it, “all character evidence offered to show action in
conformity with character is propensity evidence, but
not all propensity evidence is character evidence.” The
theory behind the use of uncharged misconduct to prove
“motive” shows that the rule does not avoid all propensity
inferences, but only those that are based on character. It
is supposed that the dangers associated with character do
not exist, or at least are minimized, when the phenomenon
that drives behavior is not based on morality.28
24 State v. Floyd, 277 Neb. 502, 763 N.W.2d 91 (2009).
25 Leonard, supra note 23, § 8.4.1.
26 See id.
27 Id., § 8.5.1(c).
28 Id., § 8.3 at 495-96.
158 	283 NEbRaSka REpORTS

We acknowledge that in previous cases, we have defined the
concept of “special” or “independent” relevance as relevance
that “does not depend upon its tendency to show propensity.”29
but in context, it is clear that we were referring to propensity
generally, in the sense of a character trait and not a specific
propensity to do a particular thing. as we explained in State
v. McManus30:
If the evidence is relevant because it tends to show the
defendant’s criminal disposition or propensity to commit
a certain type of crime, it is relevant for an improper pur-
pose and is inadmissible under rule 404(2). However, if it
is relevant to show something other than the defendant’s
character, then it is relevant for a proper purpose and is
admissible under rule 404(2).
In other words, “propensity” is meant to refer simply to crimi-
nal propensity, i.e., character.
It is obvious that evidence is not barred by rule 404(2) just
because its relevance could be characterized in terms of “pro-
pensity.” For instance, one of the paradigmatic uses of other
acts evidence is the use of previous acts to establish a modus
operandi, or “signature,” that is methodologically so reminis-
cent of the charged crime as to earmark it as the defendant’s
handiwork.31 It is well established that such evidence is admis-
sible when the acts are sufficiently similar to be probative on
the issue of identity—yet it is equally clear that the special rele-
vance of the evidence depends on what can be characterized as
the defendant’s “propensity” to commit crimes in an idiosyn-
cratic way. Motive evidence is much the same: It can easily be
framed as relevant because it shows a defendant’s “propensity”
to commit crimes for a particular reason, i.e., motive. Someone
who has a motive to commit a crime could also be described
as having a “propensity” to commit the crime. but where the
defendant’s motive is particular—in other words, is not based
29 See, e.g., State v. Williams, 282 Neb. 182, 195, 802 N.W.2d 421, 432
(2011).
30 State v. McManus, 257 Neb. 1, 7-8, 594 N.W.2d 623, 628-29 (1999).
31 See, e.g., U.S. v. Ingraham, 832 F.2d 229 (1st Cir. 1987).
STaTE v. TORRES 	159
Cite as 283 Neb. 142

in the defendant’s character—evidence of prior acts is nonethe-
less admissible to show the defendant’s motive to commit the
charged crime because an inference of a criminal propensity is
not required to establish independent relevance.
We agree with the district court that in this case, the evi-
dence of the February 2007 kidnapping was independently
relevant to show Torres’ motive. We note that the motive
for that first incident—to obtain money and transportation
to Texas—was the same motive Torres had for robbing Hall.
Thus, the link between the two incidents is clear; the evidence
surrounding the kidnapping shows that Torres’ motivation was
to get to Texas. Torres made packer call for plane tickets and
made plans for Cross to drive to Texas while Torres flew there.
Cross testified that Torres released packer, Cross, and padilla
only after Cross agreed to drive Torres to Texas. During this
event, Torres also had Cross and padilla withdraw money from
packer’s bank account, which money Torres then kept. and in
the incident resulting in Hall’s and Donohue’s deaths, Torres
stole Hall’s aTM card and attempted multiple times to with-
draw money from Hall’s bank account. Torres also stole Hall’s
car, which was later found in Texas and was further linked to
Torres by the testimony of Torres’ ex-girlfriend.
The evidence surrounding the kidnapping and robbery of
packer, Cross, and padilla was, therefore, independently rele-
vant because it proved Torres’ rather desperate desire for money
and transportation to Texas. and when Hall and Donohue
were killed, the perpetrator apparently took Hall’s money and
then drove Hall’s car to Texas. The logical relevance of the
rule 404(2) evidence does not depend on an inference that
Torres acted in conformity with a general propensity to com-
mit crimes—rather, it depends on the inference that the person
who killed Hall and Donohue wanted money and transportation
to Texas, and the rule 404(2) evidence proved Torres’ pressing
desire to obtain those specific things. although the evidence
also reflects poorly on Torres’ character, its logical relevance is
independent of that.
additionally, we note that the fact that Hall and Donohue
ultimately were murdered, in addition to Hall’s being robbed,
is of no consequence to our determination here. First, as noted
160 	283 NEbRaSka REpORTS

above, unlike other theories relating to the introduction of
prior bad acts evidence, admission based upon motive does not
require any similarity between the prior act and the charged
act. This is so because it is the state of mind behind the acts
that shows the motive. and in this case, the prior evidence
shows that the motives to commit each robbery were the same,
even though the latter robbery eventually ended in the deaths
of Hall and Donohue.
We are also not persuaded by the insistence in the concur-
rence that Torres’ motive for the packer kidnapping was not the
same as his motive for Hall’s and Donahue’s murders. The con-
currence bases this assertion on its review of the evidence from
the kidnapping trial and concludes that the motive as shown at
that trial was the result of a drug deal gone bad and was not
an effort to obtain money and transportation to Texas. but the
concurrence acknowledges that the need for money and trans-
portation was underlying Torres’ actions as shown at the kid-
napping trial. We do not find this conclusion inconsistent with
this court’s determination that the continued need for money
and transportation was still a motivating factor for Torres to rob
Hall and murder Hall and Donohue.
We therefore conclude that the evidence at issue was admis-
sible to show Torres’ motive.
(d) Evidence More prejudicial Than probative
We next turn to the question of whether the probative value
of the evidence was substantially outweighed by the danger of
unfair prejudice, and we conclude that it was not. Specifically,
as explained above, this event was probative of Torres’ motive
to rob Hall and eventually murder Hall and Donohue. We
acknowledge that the evidence was highly prejudicial to Torres;
however, it was also highly probative of Torres’ motive to com-
mit the charged crimes. We find that the court did not abuse its
discretion in concluding that the probative value of the evidence
was not outweighed by the potential for unfair prejudice.
(e) Harmless Error
[18] We have concluded that the district court was correct
in admitting the challenged evidence because it was inde-
pendently relevant to the issue of Torres’ motive, but that the
STaTE v. TORRES 	161
Cite as 283 Neb. 142

district court erred in admitting the evidence to show Torres’
intent and opportunity. We must therefore determine whether
the district court’s error prejudiced Torres, or whether instead
the error was harmless. In making that determination, we
must decide whether the giving of the overly broad instruction
materially influenced the jury to reach a verdict adverse to the
substantial rights of Torres.32
Though the district court erroneously instructed the jury that
it could consider the prior incident wherein Torres kidnapped
packer, Cross, and padilla as independently relevant evidence
of Torres’ intent and opportunity, it did not instruct the jury that
it could consider that incident for any reason the jury wished.
The instruction as given protected Torres from an inference
that simply because he committed the earlier kidnapping, he
also committed the crimes at issue in this case. Moreover, we
have concluded that intent was not at issue in this case. Torres
could not have been prejudiced by an instruction to the jury
that it could consider this evidence for intent when there was
no dispute that the crimes at issue were committed intention-
ally. Similarly, instructing the jury that it could consider the
previous kidnapping as relevant to opportunity could not have
prejudiced Torres, because his opportunity to commit the crime
was not contested and, in any event, the prior kidnapping was
not particularly helpful in that regard.
In short, there was no basis from which the jury could con-
clude that Torres committed the charged crimes but did not do
so intentionally; nor was there any basis for the jury to rea-
son that Torres could not have committed the charged crimes
because he had no opportunity to do so. Therefore, permitting
the jury to consider Torres’ prior bad acts as relevant to those
issues could not have prejudiced Torres. The court’s erroneous
limiting instruction provides no basis for reversing Torres’ con-
victions or sentences.
as such, while we conclude that the district court erred in
instructing the jury that it could consider evidence of the prior
incident involving packer, Cross, and padilla as relevant to
32 See, Ellis, supra note 13; State v. McKinney, 273 Neb. 346, 730 N.W.2d 74
(2007).
162 	283 NEbRaSka REpORTS

show intent and opportunity, we conclude that any error therein
was harmless error and not reversible error.
2. conSpirAcy exception to H eArSAy rule
In his second assignment of error, Torres assigns that the
district court erred in allowing two witnesses to testify regard-
ing Torres’ attempts to have them fabricate evidence exonerat-
ing him. Torres contends that the testimonies of these witnesses
was hearsay and did not fall within the coconspirator exclu-
sion set forth in Neb. Evid. R. 801(4)(b)(v), Neb. Rev. Stat.
§ 27-801(4)(b)(v) (Reissue 2008).
Some background is helpful. at trial, there was evidence
presented that Torres attempted to bribe witnesses and fabricate
evidence in his case. Robert Mattson, one of Torres’ fellow
inmates at the Hall County jail, testified that Torres wanted
Robert to have his wife, Jennifer Mattson, contact law enforce-
ment with a story suggesting that a person other than Torres
had admitted to Hall’s and Donohue’s murders. according to
Jennifer, Torres had offered her $10,000 to do so and she met
with Torres’ mother in furtherance of this plan. Torres actually
wrote Jennifer a letter, which was addressed by name to one of
his original attorneys, but by location to Jennifer’s address, and
which detailed the story Torres wished her to tell.
and another of Torres’ fellow inmates, Stacy alexander, tes-
tified that alexander contacted his girlfriend, amanda Lane, and
requested that she assist Torres in convincing alexander’s ex-
brother-in-law, James Hemmingway, to approach law enforce-
ment with a story about Torres. Lane testified that she and
Hemmingway met Torres’ mother at the Grand Island police
station. Other evidence shows that Torres’ mother actually
accompanied Hemmingway inside the police station. However,
once there, Hemmingway admitted the fabrication to law
enforcement and provided the narrative which Lane had writ-
ten for him. Lane testified that Torres’ mother paid her $300,
which she split with Hemmingway.
[19,20] Rule 801(3) provides that “[h]earsay is a statement,
other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the
matter asserted.” However, “[a] statement is not hearsay if [it]
STaTE v. TORRES 	163
Cite as 283 Neb. 142

is offered against a party and is . . . a statement by a cocon-
spirator of a party during the course and in furtherance of the
conspiracy.”33 This court has held that rule 801(4)(b)(v) is
applicable regardless of whether the defendant is charged with
conspiracy.34 but before a trier of fact may consider testimony
under the coconspirator exception to the hearsay rule, a prima
facie case establishing the existence of a conspiracy must be
shown by independent evidence.35
(a) Testimony of Jennifer
We begin with the testimony of Jennifer. On appeal, Torres
argues that the district court erred in finding Jennifer’s testi-
mony was not hearsay under rule 801(4)(b)(v) because there
was no evidence presented that she planned to participate in the
plot to fabricate evidence.
Torres’ argument is without merit. There is no requirement
under the plain language of rule 801(4)(b)(v) that the person
testifying to the statement be a part of the conspiracy. and
this court, in State v. Hudson,36 found that statements made by
a coconspirator, but testified to by a non-coconspirator, were
admissible under rule 801(4)(b)(v).
Rather, the only requirements for such statement to be
admissible are that (1) the statement be made by a coconspira-
tor, (2) the statement be in furtherance of the conspiracy, and
(3) the State show prima facie evidence of that conspiracy by
independent evidence. all of these requirements were met with
respect to Jennifer’s testimony.
First, the statements in question were made by Jennifer’s
husband, Robert, a coconspirator. These statements were made
to Jennifer with the intent to gain her agreement to participate
in Robert’s and Torres’ plan to fabricate evidence in order to
exonerate Torres. and Robert’s own testimony, introduced prior
33 § 27-801(4).
34 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), abrogated in
part on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749
(2010).
35 See id.
36 State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).
164 	283 NEbRaSka REpORTS

to Jennifer’s testimony, established that the conspiracy existed.
Thus, Jennifer’s testimony regarding Robert’s statements to her
was admissible under rule 801(4)(b)(v).
(b) Testimony of Lane
With respect to Lane’s testimony, Torres argues that there
was insufficient evidence shown that a conspiracy existed and
that as such, the statements were not admissible under rule
801(4)(b)(v). We again find Torres’ argument without merit.
prior to Lane’s testifying, alexander testified that he asked
Lane to do certain things as requested by Torres. and in her own
testimony, Lane stated without objection that alexander wanted
her to talk to Hemmingway about having him “take this story
that [Torres] told [alexander] to the cops.” Through alexander’s
testimony, the State showed that Torres and alexander had
some type of agreement. When considered along with Lane’s
testimony, the State has shown that this agreement involved,
at least in part, alexander’s inducing Lane and Hemmingway
to provide to law enforcement a story intended to exonerate
Torres. Such actions constituted a conspiracy, and Torres’ argu-
ment that the State failed to show prima facie evidence of that
conspiracy is without merit.
Torres’ second assignment of error is without merit.
3. motion to SuppreSS
In his third assignment of error, Torres argues that the dis-
trict court erred in overruling his motion to suppress. Torres
contends that law enforcement failed to honor his request to cut
off questioning during an interview on March 26, 2008, which
he claims he did when he stated that he was “done” at around
the 2-hour 30-minute mark of the interview.
We stated in State v. Rogers37:
The U.S. Supreme Court has explained that once the right
to cut off questioning has been invoked, the police are
restricted to “‘scrupulously honor[ing]’” that right. This
means, among other things, that there must be an appre-
ciable cessation to the interrogation. However, before the
police are under such a duty, the invocation of the right to
37 State v. Rogers, 277 Neb. 37, 52, 760 N.W.2d 35, 50-51 (2009).
STaTE v. TORRES 	165
Cite as 283 Neb. 142

cut off questioning must be “unambiguous,” “unequivocal,”
or “clear.” This requirement of an unequivocal invocation,
the Court has explained, prevents the creation of a “third
layer of prophylaxis” which could transform the prophy-
lactic rules of Miranda “‘into wholly irrational obstacles
to legitimate police investigative activity.’” To invoke the
right to cut off questioning, the suspect must articulate his
or her desire with sufficient clarity such that a reasonable
police officer under the circumstances would understand
the statement as an invocation of the right to remain silent.
and if the suspect’s statement is not an “unambiguous or
unequivocal” assertion of the right to remain silent, then
there is nothing to “scrupulously honor” and the officers
have no obligation to stop questioning.
In this case, Torres waved his hand in front of the interview-
ing officer, who had been asking a question about telephone
calls made by Torres to Cross. at the same time, Torres said
to the officer, “End of conversation; we’re done.” However,
immediately afterward, and with no prompting or questioning
by law enforcement, Torres continued the conversation regard-
ing the telephone calls. a review of the interview also shows
that Torres subsequently continued to freely engage in the
interview and continued to converse with the officers.
based upon these facts, we cannot say that Torres unambigu-
ously or unequivocally asserted his right to remain silent. This
court recently noted that “[w]e have never held that any utter-
ance of ‘I’m done,’ no matter what the surrounding circum-
stances or other statements, will be construed as cutting off all
further questioning.”38 For this reason, the district court did not
err in denying Torres’ motion to dismiss.
Torres’ third assignment of error, and final trial error assign-
ment, is without merit.
4. A dmiSSion of triAl bill of exceptionS
during Sentencing proceeding
In his fourth assignment of error, Torres assigns that the
sentencing panel erred in receiving for purposes of the State’s
38 State v. Schroeder, 279 Neb. 199, 218, 777 N.W.2d 793, 809 (2010).
166 	283 NEbRaSka REpORTS

proof of aggravating circumstances the trial court’s bill of
exceptions. Torres argues that the admission of the trial court’s
bill of exceptions contained inadmissible hearsay and violated
his due process and confrontation rights.
Following the jury verdicts of guilty, Torres waived his
right to a jury determination of any alleged aggravating cir-
cumstances, as provided in § 29-2520(3). That subsection
provides:
The defendant may waive his or her right to a jury deter-
mination of the alleged aggravating circumstances. The
court shall accept the waiver after determining that it is
made freely, voluntarily, and knowingly. If the defend-
ant waives his or her right to a jury determination of
the alleged aggravating circumstances, such determina-
tion shall be made by a panel of judges as a part of the
sentencing determination proceeding as provided in sec-
tion 29-2521.
Section 29-2521 provides the general framework for the sen-
tencing procedure taken in cases involving the death penalty:
(1) When a person has been found guilty of murder in
the first degree and (a) a jury renders a verdict finding
the existence of one or more aggravating circumstances
as provided in section 29-2520 or (b)(i) the information
contains a notice of aggravation as provided in section
29-1603 and (ii) such person waives his or her right
to a jury determination of the alleged aggravating cir-
cumstances, the sentence of such person shall be deter-
mined by:
(a) a panel of three judges . . . .
Section 29-2521(3) sets out the specific procedure to be fol-
lowed “[w]hen a jury renders a verdict finding the existence of
one or more aggravating circumstances as provided in section
29-2520.” and, as is relevant in this case, § 29-2521(2) pro-
vides the procedure where a defendant has waived his or her
right to a jury determination:
In 	the 	sentencing 	determination 	proceeding 	before 	a
panel of judges when the right to a jury determination of
the alleged aggravating circumstances has been waived,
the panel shall, as soon as practicable after receipt of the
written report resulting from the presentence investigation
STaTE v. TORRES 	167
Cite as 283 Neb. 142

ordered as provided in section 29-2261, hold a hearing.
at such hearing, evidence may be presented as to any
matter that the presiding judge deems relevant to sen-
tence and shall include matters relating to the aggravating
circumstances alleged in the information, to any of the
mitigating circumstances set forth in section 29-2523,
and to sentence excessiveness or disproportionality. The
Nebraska Evidence Rules shall apply to evidence relat-
ing to aggravating circumstances. Each aggravating cir-
cumstance shall be proved beyond a reasonable doubt.
Any evidence at the sentencing determination proceeding
which the presiding judge deems to have probative value
may be received. The state and the defendant or his or
her counsel shall be permitted to present argument for
or against sentence of death. The presiding judge shall
set forth the general order of procedure at the outset of
the sentencing determination proceeding. The panel shall
make written findings of fact based upon the trial of guilt
and the sentencing determination proceeding, identifying
which, if any, of the alleged aggravating circumstances
have been proven to exist beyond a reasonable doubt.
Each finding of fact with respect to each alleged aggra-
vating circumstance shall be unanimous. If the panel is
unable to reach a unanimous finding of fact with respect
to an aggravating circumstance, such aggravating cir-
cumstance shall not be weighed in the sentencing deter-
mination proceeding. after the presentation and receipt
of evidence and argument, the panel shall determine an
appropriate sentence as provided in section 29-2522.
(Emphasis supplied.)
Torres argues that the sentencing panel should not have been
permitted to receive the trial record into evidence. He claims
that this was improper because two of the three members of
the panel were thereby limited to evaluating the evidence from
a transcript instead of live testimony. but we rejected a similar
argument in State v. Ryan.39 In Ryan, the sentencing provisions
39 State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995), abrogated on other
grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
168 	283 NEbRaSka REpORTS

in effect at the time required a sentencing panel to determine
aggravating and mitigating circumstances and provided for a
hearing at which “‘evidence may be presented as to any mat-
ter that the court deems relevant to sentence [and a]ny such
evidence which the court deems to have probative value may
be received.’”40 We have reached the same conclusion under
the comparable current statute.41 and, we noted, the statute
required the panel’s determination to be “‘supported by writ-
ten findings of fact based upon the records of the trial and the
sentencing proceeding.’”42
based on that statutory language, we concluded that the
sentencing panel “not only [had] the statutory authority to
consider the trial record,” but was “statutorily required to make
written findings of fact based upon that record.”43 and as noted
above, § 29-2521(2) now contains language that is effectively
identical to the language we relied upon in Ryan. It is a well-
established principle of statutory interpretation that when leg-
islation is enacted which makes related preexisting law appli-
cable thereto, it is presumed that the Legislature acted with full
knowledge of the preexisting law and judicial decisions of the
Supreme Court construing and applying it.44 We conclude that
based on the language of § 29-2521(2), our decision in Ryan is
controlling and the sentencing panel is not only permitted, but
required, to consider the trial record.
In addition to finding that the procedure followed by the sen-
tencing panel was proper, we reject Torres’ arguments regard-
ing hearsay, confrontation, and due process. We turn first to
hearsay. Hearsay is defined by rule 801(3) as a “statement,
other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the
40 Ryan, supra note 39, 248 Neb. at 442, 534 N.W.2d at 790 (emphasis
omitted).
41 See, State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009); State v.
Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
42 Ryan, supra note 39, 248 Neb. at 441, 534 N.W.2d at 790 (emphasis
omitted).
43 Id. at 442, 534 N.W.2d at 790.
44 State v. Buckman, 267 Neb. 505, 675 N.W.2d 372 (2004).
STaTE v. TORRES 	169
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matter asserted”; in other words, an out-of-court statement. but
the bill of exceptions at issue was a word-for-word transcrip-
tion of all of the statements made by the witnesses in court
and at Torres’ trial. The bill of exceptions, then, quite plainly
falls outside of the definition of hearsay. and even if the bill
of exceptions was hearsay, it would nevertheless be admissible
under § 29-2520 or § 29-2521 as discussed above.
We next address and reject Torres’ argument that his right to
confrontation was violated when the panel admitted the record
of the trial of guilt. but in situations such as this, where a jury
determination of aggravating circumstances was waived, the
statutes are clear that the panel’s determination of those cir-
cumstances is to be part of the sentencing proceeding.45 and
we have found that the right to confrontation is inapplicable to
sentencing proceedings.46
Nor do we find that Torres’ due process rights were vio-
lated. The capital sentencing statutes make it clear that the
sentencing panel is to make the determination of aggravating
circumstances based upon the trial of guilt and a sentencing
hearing. Torres waived his right to have the jury determine the
aggravating circumstances. In doing so, he waived many of the
rights that are present during such a hearing, but not available
at sentencing.47 a defendant’s decision to waive a jury finding
of aggravating circumstances obviously implicates procedural
differences, the advantages and disadvantages of which can be
weighed by the defendant.48 Moreover, Torres was permitted to
introduce whatever evidence and witnesses he chose during the
sentencing determination proceeding.
Torres’ fourth assignment of error is without merit.
5. retroActive A pplicAtion of
§§ 83-964 to 83-972
In his fifth assignment of error, Torres argues that the
sentencing panel erred in retroactively applying §§ 83-964
45 §§ 29-2520(3) and 29-2521(2).
46 Galindo, supra note 41.
47 See id.
48 See Ellis, supra note 13.
170 	283 NEbRaSka REpORTS

to 83-972. Torres contends that the retroactive application of
the death penalty statutes would be a violation of the rights
given him under the Ex post Facto Clauses of the U.S. and
Nebraska Constitutions.49 at its essence, Torres’ argument is
that he could not be sentenced to death unless a method of
execution existed, at the time of sentencing, under which he
could be put to death.
[21] We recently addressed Torres’ basic argument in both
State v. Mata,50 and State v. Ellis.51 In Mata, this court found
electrocution to be unconstitutional as cruel and unusual pun-
ishment under Neb. Const. art. I, § 9. but even as we held the
method of execution unconstitutional, we upheld the defend-
ant’s death sentence, noting:
Under Nebraska law, the sentencing panel can fix the
sentence either at death or at life imprisonment. because
a panel’s sentencing authority does not extend beyond
that, the method of imposing a death sentence is not an
essential part of the sentence. and Nebraska’s statutes
specifying electrocution as the mode of inflicting the
death penalty are separate, and severable, from the pro-
cedures by which the trial court sentences the defendant.
In short, that a method of execution is cruel and unusual
punishment “‘“bears solely on the legality of the execu-
tion of the sentence and not on the validity of the sentence
itself.”’” because we find no error in imposing a sentence
of death, we affirm the district court’s judgment.52
[22,23] We did not explicitly address the validity of a death
sentence in the context of the Ex post Facto Clauses of the
U.S. and Nebraska Constitutions in Mata or Ellis. both U.S.
Const. art. I, § 10, and Neb. Const. art. I, § 16, provide that
no ex post facto law may be passed. a law which purports to
apply to events that occurred before the law’s enactment, and
which disadvantages a defendant by creating or enhancing
49 See, U.S. Const. art. I, § 10; Neb. Const. art. I, § 16.
50 Mata, supra note 39.
51 Ellis, supra note 13.
52 Mata, supra note 39, 275 Neb. at 67-68, 745 N.W.2d at 278-79.
STaTE v. TORRES 	171
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penalties that did not exist when the offense was committed, is
an ex post facto law and will not be endorsed by the courts.53
This court ordinarily construes Nebraska’s ex post facto clause
to provide no greater protections than those guaranteed by the
federal Constitution.54
We find Torres’ argument on this point to be without merit.
put simply, the sentencing court always had the authority
to sentence Torres to death; the State’s enactment of a new
method of execution and its accompanying protocol simply
made it possible for the State to enforce that sentence. as Mata
made clear, the method of execution does not bear upon the
sentence of death itself. Nothing about this scenario violates
Torres’ rights under the Ex post Facto Clauses of the federal
and state Constitutions.
Torres’ fifth assignment of error is without merit.
6. SepArAtion of poWerS
In his sixth assignment of error, Torres argues that § 83-964
is unconstitutional, in violation of the distribution of pow-
ers clause of the Nebraska Constitution, Nebraska case law,
and the Due process and Equal protection Clauses of the
14th amendment to the U.S. Constitution. Section 83-964
provides: “a sentence of death shall be enforced by the intra-
venous injection of a substance or substances in a quantity
sufficient to cause death. The lethal substance or substances
shall be administered in compliance with an execution proto-
col created and maintained by the Department of Correctional
Services.”
In Ellis, we recently addressed the question of whether
the Legislature could properly delegate to the Department of
Correctional Services the function of creating, maintaining, and
administering a lethal injection protocol and concluded that it
could.55 We decline to revisit that decision.
as such, Torres’ sixth assignment of error is without merit.
53 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
54 Id.
55 Ellis, supra note 13.
172 	283 NEbRaSka REpORTS

7. conStitutionAl cHAllenge to deAtH penAlty
StAtuteS And § 29-2523(1)(a), (b), And (d)
In his seventh and eighth assignments of error, Torres
argues generally that the Nebraska death penalty statutes56 are
unconstitutional on their face and specifically contends that
§ 29-2523(1)(a), (b), and (d) are unconstitutional on their face,
as interpreted by the courts of the State of Nebraska and as
applied in this case. We have previously rejected these argu-
ments and do so again today.
(a) aggravator (1)(a)
Torres first argues that § 29-2523(1)(a), which provides as
an aggravating circumstance that the defendant “has a substan-
tial prior history of serious assaultive or terrorizing criminal
activity,” is unconstitutional because it fails to define the terms
“substantial,” “history,” and “serious assaultive or terrorizing
criminal activity.” We have addressed and rejected this argu-
ment before, including most recently in Ellis.57 We decline to
overrule that authority, and as such, we decline to conclude
that aggravator (1)(a) is unconstitutional, either facially or as
interpreted by the courts of this state.
Torres also argues that this aggravator is unconstitutional as
applied to him, because the sentencing panel used as evidence
of this prior history the incident wherein he kidnapped packer,
Cross, and padilla. Torres notes that he fed packer food and
drugs and released him unharmed and contends that if this
behavior were sufficient to support a finding of this aggravator,
such would be unconstitutional.
Torres attempts to downplay the incident involving packer,
Cross, and padilla. Torres suggests that he held them for a
period of time, fed them food and drugs, and then let them
go. This characterization is not entirely accurate. Torres held
56 §§ 29-2519 to 29-2546.
57 Ellis, supra note 13. See, also, Hessler, supra note 41; State v. Bjorklund,
258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on other grounds, Mata,
supra note 39; State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); State
v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977), disapproved on other
grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986); State v.
Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).
STaTE v. TORRES 	173
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packer at gunpoint and forced him to drive to Hall’s home to
meet Cross and padilla. Torres then held all three at gunpoint.
Torres forced Cross and padilla to tie packer up. He forced
packer to hand over his aTM card and its personal identi-
fication number. Torres then made Cross and padilla with-
draw money from packer’s account to buy food for everyone.
Though Cross and padilla were allowed to leave on their own,
they were concerned for packer’s safety and did not want any-
one to get hurt, so they returned. Torres then continued to hold
them at gunpoint and forced packer to make various telephone
calls to obtain transportation to Texas. Torres eventually let
packer go. packer indicated that he was released so he could
make a court date. However, packer and Cross both also testi-
fied that part of the reason packer was released was because
Cross promised to drive Torres to Texas. and though packer
was allowed to leave, Torres kept packer’s cellular telephone
and also took $800 from packer.
Given the circumstances of Torres’ prior assaultive behavior,
we decline to conclude that the application of aggravator (1)(a)
would be unconstitutional as applied to Torres. Torres’ argu-
ment with regard to this aggravator is without merit.
(b) aggravator (1)(b)
Torres next argues that § 29-2523(1)(b) is unconstitutional.
This subsection provides as an aggravating circumstance that
“[t]he murder was committed in an effort to conceal the com-
mission of a crime, or to conceal the identity of the perpetrator
of such crime.” but we have repeatedly held that this aggrava-
tor is constitutional, most recently in State v. Hessler,58 and we
decline to revisit that holding today. Torres’ argument regarding
aggravator (1)(b) is without merit.
(c) aggravator (1)(d)
Finally, Torres contends that § 29-2523(1)(d), which pro-
vides as an aggravating circumstance that the murder was
58 Hessler, supra note 41. See, also, Bjorklund, supra note 57; State v.
Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998), modified 255 Neb. 889,
587 N.W.2d 673 (1999); State v. Moore, 250 Neb. 805, 553 N.W.2d 120
(1996), disapproved on other grounds, State v. Reeves, 258 Neb. 511, 604
N.W.2d 151 (2000).
174 	283 NEbRaSka REpORTS

“especially heinous, atrocious, cruel, or manifested exceptional
depravity by ordinary standards of morality and intelligence,”
is unconstitutional. In particular, Torres takes issue, as many
have before him, with the “exceptional depravity” prong of this
aggravator.
We decline to address what so many courts have previously
found to be a constitutional aggravator,59 and we conclude that
the aggravator as a whole, and the “exceptional depravity”
prong in particular, is not unconstitutional on its face or as
interpreted by the courts of this state.
Torres also argues that aggravator (1)(d) is unconstitutional
as applied to him. Torres contends:
In the case at bar, the defense pathologist noted that the
extension cord used to tie the victim . . . Hall did not
appear to be that tight, and there was no evidence that
he had been tied up for an extended period of time. . . .
In the absence of grounds for exceptional depravity that
more “suitably directed, limited, and defined” that prong
of the aggravator, the aggravator is simply too vague and
overbroad to be constitutionally applied . . . .60
We do not find this contention relevant to a discussion of
whether aggravator (1)(d) was constitutional as applied to
Torres. In its findings, the panel noted that Torres relished
the murders, as evidenced by the fact that he told Cross that
he put Hall and Donohue to “sleep,” as well as the fact that
he later retold the story of the murders to a fellow inmate,
Robert, while incarcerated. The panel also noted that Hall was
tied up and gagged and was helpless when robbed, shot, and
killed. These facts are not lessened by the fact that the cord
binding Hall was not very tight or the fact that Hall might not
have been tied up very long before he was shot. We decline
to conclude that these factors would somehow make the
59 See, Ellis, supra note 13; Mata, supra note 39; Hessler, supra note 41;
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005); Bjorklund, supra
note 57; Palmer, supra note 57; Ryan, supra note 57. See, also, Joubert v.
Hopkins, 75 F.3d 1232 (8th Cir. 1996); Williams v. Clarke, 40 F.3d 1529
(8th Cir. 1994).
60 brief for appellant at 94.
STaTE v. TORRES 	175
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application of this aggravator to Torres unconstitutional. His
argument on this point, and also with regard to this aggravator,
is without merit.
8. conSidering HAll’S “mentAl Suffering” And
“uncertAinty AS to H iS ultimAte fAte” to
Support exiStence of § 29-2523(1)(d)
(a) Did Sentencing panel Err in
Considering “Mental Suffering”?
In his ninth assignment of error, Torres first argues that the
sentencing panel erred when it considered Hall’s “‘mental suf-
fering’” and “‘uncertainty as to [his] ultimate fate’” as support
for finding that § 29-2523(1)(d) applied to Torres. The basis of
Torres’ argument is this court’s decision in State v. Sandoval,61
which was released after the sentencing order was filed in
this case. In Sandoval, this court held that it was error for
the district court to instruct the jury that it could consider the
victim’s “‘mental anguish’” in finding the existence of aggra-
vator (1)(d)—specifically, in including “‘mental anguish’” in
the standard for whether the murder was “‘especially heinous,
atrocious, or cruel.’”62
[24] We agree with Torres insofar as he argues that mental
anguish should have not been considered by the sentencing
panel, and thus, the findings made by the panel to that end
were erroneous. a jury may not consider a victim’s mental
anguish in finding the existence of the aggravating circum-
stance set forth in § 29-2523(1)(d). but unlike in Sandoval,
where the error resulted in a finding that the aggravator was not
established, in this case, the failure of this one finding does not
mean the failure of the entire aggravator.
Sandoval dealt with an erroneous jury instruction with regard
to mental anguish. The jury in Sandoval was asked to determine
only whether the various aggravators were established and did
not provide any additional factual findings. Thus, where the
jury instruction was incorrect, it was not possible for this court
61 State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010), cert. denied 563
U.S. 1012, 131 S. Ct. 2912, 179 L. Ed. 2d 1254 (2011).
62 Id. at 352-53, 788 N.W.2d at 211-12.
176 	283 NEbRaSka REpORTS

to determine whether the jury’s finding of the aggravator had
been based upon the incorrect instruction and the entire aggra-
vator had to be disregarded.63
but aggravator (1)(d) provides as an aggravating circum-
stance that “[t]he murder was especially heinous, atrocious,
cruel, or manifested exceptional depravity by ordinary standards
of morality and intelligence.”64 This aggravating circumstance
contains two separate disjunctive components which may oper-
ate together or independently of one another.65 In Sandoval, the
jury instruction and verdict form did not permit us to determine
upon which prong the jury’s finding of aggravator (1)(d) had
been based—thus, we could not conclude that the jury’s find-
ing had not been based on the inclusion of “‘mental anguish’”
in the court’s instruction on “‘especially heinous, atrocious,
or cruel.’”66 In this case, however, the sentencing panel made
detailed findings and explained that both prongs of the aggra-
vator had been proved. as a result, Torres was not prejudiced
by the sentencing panel’s erroneous understanding of aggrava-
tor (1)(d)’s “especially heinous, atrocious, [or] cruel” provision
so long as the evidence was sufficient to support the panel’s
finding that the murder exhibited exceptional depravity. We
now turn to that question.
(b) Did State prove aggravator (1)(d)
beyond Reasonable Doubt?
Having concluded that the sentencing panel erred in consid-
ering Hall’s mental suffering, we now turn to Torres’ argument
that the sentencing panel erred in finding that the State proved
beyond a reasonable doubt the existence of § 29-2523(1)(d)
with regard to the murder of Hall.
We find that the “exceptional depravity” prong was proved
beyond a reasonable doubt and supports the finding of this
aggravator.
63 See, also, Ryan, supra note 57.
64 § 29-2523(1)(d) (emphasis supplied).
65 Ellis, supra note 13.
66 Sandoval, supra note 61, 280 Neb. at 352-53, 788 N.W.2d at 211-12.
STaTE v. TORRES 	177
Cite as 283 Neb. 142

[25,26] Exceptional depravity pertains to the state of mind
of the actor and may be proved by or inferred from the defend-
ant’s conduct at or near the time of the offense.67 We have
identified specific narrowing factors that support a finding of
exceptional depravity: (1) apparent relishing of the murder by
the killer, (2) infliction of gratuitous violence on the victim,
(3) needless mutilation of the victim, (4) senselessness of the
crime, or (5) helplessness of the victim.68
The evidence in this case was sufficient to show beyond a
reasonable doubt the presence of this aggravator with regard to
Hall’s death. a “helpless” victim is readily understood to be one
who is unable to defend oneself, or to act without help.69 The
evidence establishes that Hall was bound and gagged when he
was shot, showing not only that Hall was helpless, but that the
murder was senseless because Hall posed no threat to Torres.
and Hall was not simply shot to death—he had been gagged
and strangled to the point of asphyxiation, demonstrating the
infliction of gratuitous violence. The evidence was clearly
sufficient to prove the existence of exceptional depravity, and
therefore, the sentencing panel did not err in finding that the
State proved beyond a reasonable doubt aggravator (1)(d).
9. proof of AggrAvAtorS
In his 10th assignment of error, Torres contends the sentenc-
ing panel also erred in finding that the State proved beyond
a reasonable doubt the existence of § 29-2523(1)(a) and (b).
Torres does not appeal the sentencing panel’s determination
that at the time the murder was committed, he also committed
another murder, thereby establishing aggravator (1)(e).
(a) aggravator (1)(a)
Torres first argues that the sentencing panel erred in finding
he had a substantial history of serious assaultive or terrorizing
activity and that thus, the finding of aggravator (1)(a) was in
error. Torres argues that he had only two prior incidents, a
67 See Ryan, supra note 39.
68 Id.
69 Ellis, supra note 13.
178 	283 NEbRaSka REpORTS

domestic violence charge from 1999 and the kidnapping and
other charges surrounding the February 2007 incident with
packer, Cross, and padilla. Torres contends that the kidnapping
was “not sufficiently removed in time or sequence from the
events of the homicides to warrant a finding that the kidnap-
ping established a ‘substantial history’” and notes that the only
prior violent offense he had was a misdemeanor domestic vio-
lence assault from “many years earlier.” 70
[27] We have previously addressed an argument similar to
the one made by Torres here. In State v. Moore,71 the defendant
argued that one prior murder, committed just 4 days before the
murder the sentencing panel was considering, while indicative
of serious assaultive criminal behavior, could not be described
as a substantial history as contemplated by § 29-2523(1)(a). We
disagreed, noting:
“‘“History”’ refers to the individual’s past acts preceding
the incident for which he is on trial and ‘“substantial,”’
. . . refers to an actual, material, and important history of
acts of terror of a criminal nature. It does not refer to the
particular incident involving the homicide for which he is
subject to sentence.”72
In this case, Torres had previously been convicted of kidnap-
ping, robbery, and two counts of use of a weapon to commit a
felony in the February 2007 incident involving packer, Cross,
and padilla. That event took place 3 weeks prior to the mur-
ders of Hall and Donohue. particularly given the nature of that
prior incident, it alone is a sufficient substantial history under
aggravator (1)(a).
Even if it were not, aggravator (1)(a) would still have been
met. In addition to being met by a substantial prior history, the
aggravator is met when the offender was previously convicted
of a “crime involving the use or threat of violence.”73 and in
this case, as noted above, Torres was convicted of kidnapping
70 brief for appellant at 103.
71 Moore, supra note 58.
72 Id. at 836, 553 N.W.2d at 141 (quoting Holtan, supra note 57).
73 § 29-2523(1)(a).
STaTE v. TORRES 	179
Cite as 283 Neb. 142

and robbery as well as two use of a weapon charges relating
to the prior incident with packer, Cross, and padilla. Such is
sufficient to show a previous conviction for purposes of this
aggravating circumstance.
The sentencing panel did not err in finding that the State
proved beyond a reasonable doubt aggravator (1)(a).
(b) aggravator (1)(b)
Torres next argues that the sentencing panel erred in finding
that § 29-2523(1)(b) was met. That subsection provides as an
aggravating circumstance the situation where one murder was
“committed in an effort to conceal the commission of a crime,
or to conceal the identity of the perpetrator of such crime.”
This court held in State v. Lotter74 that for aggravator (1)(b)
to apply, a defendant “must commit the murder in an effort to
conceal some crime or to conceal the identity of the perpetrator
of some crime other than the murder itself.” In this case, Torres
was found to have both robbed and killed Hall. In addition,
Torres was found to have killed both Hall and Donohue. Given
these facts, the sentencing panel could infer that Hall was
killed to conceal Torres’ identity as the perpetrator of the rob-
bery and, further, that Donohue was killed to conceal Torres’
identity as the murderer of Hall.75
Torres contends that the sentencing panel erred in finding
this aggravator because it lacked a jury finding as to whether
Torres was guilty of premeditated murder or felony murder.
Torres argues that if he was convicted of felony murder, the
predicate felony—in this case, robbery—could not be used as
the “crime” to be concealed for purposes of this aggravator.
Torres cites no authority to suggest that the robbery could not
be used to support the finding of this aggravator; nor do we
find his argument persuasive.
a review of the jury instructions and verdict forms shows
that the jury was instructed as to the elements of both first
degree murder and felony murder with the predicate offense of
robbery. In addition, the jury was instructed as to the elements
74 Lotter, supra note 58, 255 Neb. at 522-23, 586 N.W.2d at 635.
75 See Sandoval, supra note 61.
180 	283 NEbRaSka REpORTS

of the separate charge of robbery. Torres was found guilty on
all charges. Thus, it is clear that the jury found Torres guilty of
robbery and murder, regardless of whether the ultimate convic-
tion was premeditated murder and robbery or felony murder
with robbery as its predicate offense. The robbery was clearly
a separate offense. Nor are we persuaded that the predicate
felony for a felony murder cannot, for purposes of aggrava-
tor (1)(b), be the crime that the perpetrator sought to conceal.
The fact that double jeopardy might preclude punishment for
the predicate felony76 does not change the fact that statutorily
it is a separate crime that the defendant could have sought
to conceal.
The sentencing panel did not err in finding that the State
proved beyond a reasonable doubt aggravator (1)(b).
10. mitigAting fActorS
In his 11th and final assignment of error, Torres asserts that
the sentencing panel erred by not finding any statutory or non-
statutory mitigating factors. We disagree.
Torres first argues that the sentencing panel erred by not
finding the existence of statutory mitigators (2)(c) and (2)(g):
Section 29-2523(2)(c) considers whether the crime was com-
mitted while the offender was under the influence of extreme
mental or emotional disturbance; § 29-2523(2)(g) considers
whether at the time of the crime, the capacity of the defendant
to appreciate the wrongfulness of his or her conduct or to con-
form his or her conduct to the requirements of law was impaired
as a result of mental illness, mental defect, or intoxication.
[28] The sentencing panel’s determination of the existence
or nonexistence of a mitigating circumstance is subject to
de novo review by this court.77 We have held that there is no
burden of proof with regard to mitigating circumstances, but
because the capital sentencing statutes do not require the State
to disprove the existence of mitigating circumstances, the risk
of nonproduction and nonpersuasion is on the defendant.78
76 See State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
77 Ellis, supra note 13.
78 Id.
STaTE v. TORRES 	181
Cite as 283 Neb. 142

(a) Mitigator (2)(c)
Torres argues that this mitigator existed due to his metham-
phetamine use at the time of the murders. Torres directs this
court to the testimony of a licensed drug and alcohol counselor,
during the sentencing phase, that the use of methamphetamine
can induce hyperawareness, paranoia, and breaks with reality.
In addition, packer, who admitted that he was addicted to
methamphetamine, testified that the drug caused memory loss,
created an altered mental state, caused confusion about what
was real and not real, and induced hallucinations and paranoia.
Torres further argues that the record shows he was using meth-
amphetamine at the time of the murders.
We 	question Torres’ implicit 	assumption 	that 	voluntary
intoxication can form the basis for finding mitigator (2)(c).79
but assuming without deciding that such could be the case,
we nonetheless evaluate the factual merits of Torres’ argument
if for no other reason than that the same evidence underlies
Torres’ argument with respect to mitigator (2)(g).
Though Torres contends he was using methamphetamine
at the time of Hall’s and Donohue’s murders, the evidence on
that point is contradictory. The presentence investigation states
that Torres began using methamphetamine in January 2007.
He started by smoking the drug, but in February, Torres began
using it intravenously, and he did so throughout that month.
according to Torres, his girlfriend had been “‘shoot[ing] him
up’”; when that relationship ended, Torres returned to smoking
the drug, apparently one “bowl” every other day. The presen-
tence report indicated that Torres said he continued to do so
until his arrest in March, which happened in Texas on March
26. However, the report also indicates that Torres stated that
by the time he left Nebraska for Texas on or about March 5,
he was not using methamphetamine because “‘a big deal was
going down and he needed to be clear-headed.’”
[29] Upon our de novo review, we conclude that the sen-
tencing panel did not err in not finding the existence of
79 See State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). Cf. State v.
Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
182 	283 NEbRaSka REpORTS

mitigator (2)(c). For purposes of this mitigator, “extreme”
means that the disturbance must be “‘“existing in the highest
or the greatest possible degree, very great, intense, or most
severe.”’”80 The risk of nonproduction and nonpersuasion in
this instance was on Torres; he failed to present sufficient evi-
dence to show that he was under the influence of methamphet-
amine at the time of the murders, let alone to show that any
drug use rose to the level of an extreme mental or emotional
disturbance.
(b) Mitigator (2)(g) and Nonstatutory Mitigators
For these same reasons, we conclude that Torres did not
produce sufficient evidence of methamphetamine use around
the time of the murders which resulted in impairment by
intoxication such as would require a finding of the existence of
mitigator (2)(g) or a finding of nonstatutory mitigators based
upon Torres’ alleged methamphetamine use. and we note that
the sentencing panel explicitly concluded that even if such
impairment were shown, it would be insufficient to outweigh
the aggravating factors found by the panel.
11. Supreme court de novo revieW
And proportionAlity revieW
[30,31] Finally, in reviewing a sentence of death, the Supreme
Court conducts a de novo review of the record to determine
whether the aggravating and mitigating circumstances support
the imposition of the death penalty.81 In so doing, it considers
whether the aggravating circumstances justify imposition of a
sentence of death and whether any mitigating circumstances
found to exist approach or exceed the weight given to the
aggravating circumstances.82 Having considered the evidence,
we are of the opinion that the aggravating circumstances, and
the lack of any mitigating circumstances, justify imposition of
the death penalty.
80 Ellis, supra note 13, 281 Neb. at 611, 799 N.W.2d at 300-301.
81 Ellis, supra note 13.
82 Id.
STaTE v. TORRES 	183
Cite as 283 Neb. 142

[32,33] In addition, we are required, upon appeal, to deter-
mine the propriety of a death sentence by conducting a pro-
portionality review, comparing the aggravating and mitigating
circumstances with those present in other cases in which a
district court imposed the death penalty.83 The purpose of such
review is to ensure that the sentence imposed in a case is no
greater than those imposed in other cases with the same or
similar circumstances.84 Our proportionality review, which is
separate from the sentencing panel’s, looks only to other cases
in which the death penalty has been imposed and requires us
to compare the aggravating and mitigating circumstances of a
case with those present in other cases in which the death pen-
alty was imposed, and ensure that the sentence imposed in a
case is no greater than those imposed in other cases with the
same or similar circumstances.85
In conducting our review, we agree with the sentencing
panel that our decisions in State v. Palmer86 and State v. Peery87
are pertinent here. In Palmer, the defendant was convicted of
felony murder in the death of a coin shop operator who was
robbed, beaten, and tied up. The victim’s cause of death was
strangulation. The defendant was sentenced to death based
upon findings that the murder was committed in an apparent
attempt to conceal the defendant’s identity as the perpetrator
of the robbery and that the murder manifested exceptional
depravity by ordinary standards of morality and intelligence.
and in Peery, the defendant was convicted of first degree
murder and robbery. Like the victim in Palmer, the victim
in Peery was a coin dealer who was robbed and tied up, as
well as gagged, before being shot three times. The defendant
in Peery was sentenced to death based upon findings that the
murder was committed in an apparent attempt to conceal the
defendant’s identity as the perpetrator of the robbery and that
83 Id.
84 Id.
85 Id.
86 Palmer, supra note 57.
87 State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977).
184 	283 NEbRaSka REpORTS

the murder was especially heinous, atrocious, or cruel or mani-
fested exceptional depravity by ordinary standards of morality
and intelligence.
Having reviewed our capital jurisprudence, and taking note
of comparable cases, we are persuaded that the sentences
imposed in this case were not greater than those imposed in
other cases with the same or similar circumstances, and accord-
ingly, we uphold the sentencing panel’s imposition of the death
sentence.
VI. CONCLUSION
although we find that the jury was improperly instructed
regarding some of the evidence admitted under rule 404(2), we
find that this error was harmless. We find no merit to any of
Torres’ other assignments of error relating to his trial.
We also find merit to Torres’ argument that the sentencing
panel incorrectly considered the mental suffering of one of his
victims in determining whether the aggravating circumstance
of § 29-2523(1)(d) was in existence. However, the failure of
this one finding does not affect the existence of the aggravator.
Otherwise, we find no merit to Torres’ assignments of error
regarding sentencing.
accordingly, we affirm Torres’ convictions and sentences.
A ffirmed.
WrigHt, J., not participating.
connolly, J., concurring in part, and in part dissenting.
I dissent from the majority opinion’s conclusion that extrin-
sic evidence of Torres’ kidnapping and robbery of packer was
admissible to show Torres’ motive for robbing Hall or killing
Hall and Donohue. This conclusion is contrary to the pretrial
evidence of Torres’ conflicting motives that the court reviewed
when it admitted the extrinsic evidence. It is also contrary to
the evidence presented at trial about Torres’ actual motives for
the murders. Moreover, finding the prior kidnapping and rob-
bing of packer relevant to Torres’ motive for robbing Hall or
committing the murders required the jurors to engage in classic
propensity reasoning—Torres kidnapped and robbed packer, so
he must have robbed and killed Hall and Donohue. So admit-
ting the evidence violated our standard of admissibility under
STaTE v. TORRES 	185
Cite as 283 Neb. 142

rule 404(2).1 but because the properly admitted evidence of
Torres’ guilt was overwhelming enough to conclude that the
verdict was surely unattributable to erroneous admission of
Torres’ extrinsic acts, I conclude that the error was harmless.
Regarding the sentencing phase of Torres’ trial, I disagree
with the majority opinion’s conclusion that the sentencing panel
constitutionally applied the exceptional depravity aggravator.
The evidence did not support the sentencing panel’s conclusion
that Torres relished the murders, and the majority opinion fails
to analyze this issue. but I conclude that the panel’s reliance
on this component of the exceptional depravity prong was also
harmless error.
I. THE COURT IMpROpERLY aDMITTED
EXTRINSIC aCTS EVIDENCE
In the information, the State alleged two theories of first
degree murder: premeditated murder and felony murder. and
the court instructed the jury on both theories. It also instructed
the jury on the charge that Torres had robbed Hall. but the
court did not limit the admission of the kidnapping and rob-
bery of packer to proving Torres’ motive for robbing Hall. and
its jury instruction did not distinguish between considering the
evidence for Torres’ motives for robbing Hall and for commit-
ting the murders:
This evidence regarding actions of [Torres] involving
. . . packer is presented to you solely for the limited pur-
pose of helping you to decide whether [Torres] had the
motive, intent and opportunity to go to the place where
the crimes that the defendant is charged with are alleged
to have occurred on or about March 3 through March 5,
2007, as alleged and commit the crimes that he is pres-
ently charged with. You must consider that evidence only
for that limited purpose and no other.
This instruction permitted the jurors to consider the prior
kidnapping and robbery crimes as proof of Torres’ motive for
robbing Hall and his motive for murdering Hall and Donohue.
I believe that the court erroneously admitted the evidence for
both purposes.
1 See Neb. Rev. Stat. § 27-404(2) (Reissue 2008).
186 	283 NEbRaSka REpORTS

1. torreS’ motive for tHe extrinSic crimeS WAS not
tHe SAme AS H iS motive for tHe murderS
(a) The Motive for the kidnapping and Robbery
of packer Was a Drug Deal Gone bad
The evidence that the court received for admitting the extrin-
sic acts showed that Torres kidnapped and robbed packer over
a drug deal; packer had apparently failed to provide metham-
phetamine that he owed Torres. packer testified that during
the robbery, Torres wanted an ounce of methamphetamine and
stated that he would leave after he got it. The record showed
that an ounce of methamphetamine cost between $800 and
$1,200 and sold for about $2,400 on the street.
Cross and packer made calls to find drugs but were unsuc-
cessful. They eventually convinced Torres to release packer to
make a court appearance after packer promised that he would
return with methamphetamine for Torres. but Torres first took
$800 to $850 in cash from packer’s wallet. He was angry
because packer’s failure to produce the methamphetamine had
endangered Torres’ girlfriend and son, who were in Texas.
Torres wanted packer to get him money and a plane ticket to
Texas. but the money that Torres took was consistent with what
Torres believed packer owed him in drugs. and after padilla
and Cross purchased food, all four of these people ate and used
drugs together. When Torres’ girlfriend later asked Torres about
the incident with packer because she had read about it in the
news, he told her that it “was a deal that had gone bad.”
This evidence indicated that Torres (1) intended to force
packer to find the drugs he had promised to provide, or intended
to take the equivalent in cash; and (2) intended to make packer
pay for Torres’ transportation to Texas to make an exchange
for other drugs that packer wanted or to appease a drug source
there. The motive for these actions was Torres’ anger over
packer’s failure to follow through with a drug deal.
(b) Torres’ Motive for the Murders of
Hall and Donohue Was Different
In contrast, the court admitted no evidence that showed
Torres was angry with Hall or Donohue over a drug deal.
Instead, a police report indicated that Torres killed Hall and
STaTE v. TORRES 	187
Cite as 283 Neb. 142

Donohue to silence them. The police report documented an
interview with Robert Mattson, who was incarcerated with
Torres after his arrest. Torres had told Mattson that he had mur-
dered Donohue and Hall. Mattson reported the following:
[Torres] “tied up some old man, he killed a guy that came
home, and then he killed the old man.” . . .
[Torres] told [Mattson] that he tried to make it look
like a robbery. [Mattson] was not clear on the details,
but [Torres] told [Mattson] that he had a bunch of money
and/or ingredients to make drugs that were ripped off
from him. [Torres] went to the house to scare them and
ended up tying up the old man. [Mattson] continued that
during this, some other guy came home and flipped out
on [Torres]. [Torres] told [Mattson] that he shot the guy
that was flipping out on him. [Torres] told [Mattson] that
he did not want to, but since he shot the other guy he had
to shoot the old man. [Mattson] advised the old man’s
name was [Hall].
at the murder trial, the direct evidence of Torres’ motive
for the murders was also that he killed Hall and Donohue
to silence them. Mattson testified that Torres told him that
Donohue owed Torres a lot of money and that Torres went to
Hall’s house to scare Hall and Donohue. Torres said he tied
up Hall when Donohue came home. Torres and Donohue then
argued, and Donohue was going to call the police. Torres shot
Donohue upstairs. When Torres went back downstairs, Hall
was screaming for him to call an ambulance. Torres stated that
he did not know what to do and shot Hall.
Cross similarly testified that Torres had admitted to killing
Hall and Donohue to keep them from calling the police. He
testified that after he and padilla left Hall’s house, he spoke
to Torres on the telephone. as stated in the majority opinion,
Torres told Cross that “Donohue became angry and tried to
break into Cross and padilla’s room. When Torres tried to stop
him, Hall came upstairs and mentioned something about call-
ing the police. Cross testified, ‘[Torres] told me that, you know,
can’t have cops, and he had to put them to sleep.’”
The police report that the court reviewed for its admissibil-
ity ruling showed that Torres’ motive for going to Hall’s house
188 	283 NEbRaSka REpORTS

to commit a robbery was to obtain money or contraband that
Torres believed Hall or Donohue had stolen from him. The
report also showed that Torres’ motive for the murders was to
silence Hall and Donohue. So the pretrial evidence of Torres’
motive for the robbery and murders was sufficient to alert the
court that a conflict existed between Torres’ motive for the
extrinsic crimes and his motive for the charged crimes.
It is true that a defendant’s extrinsic bad act can show his
or her motive for the charged crime even if the defendant’s
motives for the separate acts were not the same.2 but here, the
State produced the extrinsic bad acts specifically to show that
Torres robbed and murdered Hall and Donohue for the same
reason that he had kidnapped and robbed packer: because he
was desperate to get to Texas and had no means of doing so.
and if the court had inquired further, it might have recognized
that the motives were not the same. but I do not believe that
evidence showing that Torres kidnapped and robbed packer
because he was angry that packer had failed to deliver drugs
to Torres supports a conclusion that Torres robbed or mur-
dered Hall and Donohue to get money to go to Texas, except
through classic propensity reasoning—Torres kidnapped and
robbed packer; therefore, Torres robbed Hall and murdered him
and Donohue.
2. extrinSic ActS evidence of torreS’ motive for tHe
murderS WAS not independently relevAnt
Even if Torres killed Donohue and Hall to get money and
a car to go to Texas, admitting evidence that he previously
kidnapped and robbed packer to prove that motive violated our
admissibility standard under rule 404(2). Since 1999, we have
required extrinsic acts evidence to be independently relevant.3
as stated in the majority opinion, extrinsic acts evidence is
independently relevant if its relevance does not depend upon a
tendency to show propensity.4 but a juror could only conclude
2 See 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 3:16
(rev. ed. 2001).
3 See State v. McManus, 257 Neb. 1, 594 N.W.2d 623 (1999).
4 See, e.g., State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
STaTE v. TORRES 	189
Cite as 283 Neb. 142

that Torres’ kidnapping and robbing of packer were relevant
to prove his motive for the murders by reasoning that Torres
was the type of person who would use violence to take a
person’s property. The propensity inference in the chain of
reasoning necessary to find this evidence relevant to motive
is unavoidable.
I agree with the majority opinion that character is a general-
ized tendency to act in a particular way. but when a person’s
general tendency continues over time and governs similar but
disconnected circumstances, the person’s disposition is gener-
ally called his or her character trait or propensity.5
We have distinguished between logical relevance and inde-
pendent relevance and have held that even if the State’s extrin-
sic acts evidence is logically relevant to a permissible purpose,
it is inadmissible if it lacks independent relevance.6 and we
have specifically held that a court should exclude evidence
when its relevance depends on classic propensity reasoning
about the defendant’s character.7 Our standard of admissibility
is consistent with the decisions of many other jurisdictions,8
as well as the opinions of major legal commentators.9 So I
strongly disagree with the following statement in the majority
5 See, 2 Jack b. Weinstein & Margaret a. berger, Weinstein’s Federal
Evidence § 404.02 (Joseph M. McLaughlin ed., 2d ed. 2011); Lee E.
Teitelbaum & Nancy augustus Hertz, Evidence II: Evidence of Other
Crimes as Proof of Intent, 13 N.M.L. Rev. 423 (1983).
6 See State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999).
7 See, State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011); State v. Trotter,
262 Neb. 443, 632 N.W.2d 325 (2001); McManus, supra note 3; State v.
Sutton, 16 Neb. app. 185, 741 N.W.2d 713 (2007).
8 See, e.g., U.S. v. Green, 617 F.3d 233 (3d Cir. 2010), cert. denied 562 U.S.
942, 131 S. Ct. 363, 178 L. Ed. 2d 234; U.S. v. Commanche, 577 F.3d
1261 (10th Cir. 2009); U.S. v. Varoudakis, 233 F.3d 113 (1st Cir. 2000);
State v. Cassavaugh, 161 N.H. 90, 12 a.3d 1277 (2010); State v. Johnson,
340 Or. 319, 131 p.3d 173 (2006); State v. Clifford, 328 Mont. 300, 121
p.3d 489 (2005); Masters v. People, 58 p.3d 979 (Colo. 2002).
9 See, 1 Imwinkelried, supra note 2, § 2:19; 1 Christopher b. Mueller &
Laird C. kirkpatrick, Federal Evidence § 4:28 (3d ed. 2007); 22 Charles
alan Wright & kenneth W. Graham, Jr., Federal practice and procedure
§ 5239 (Supp. 2011).
190 	283 NEbRaSka REpORTS

opinion: “[M]otive reasoning requires propensity inferences.
but, so long as the evidence is also relevant for reasons not
based on the defendant’s character, it is admissible under rule
404(2).” This conclusion upends our rule 404(2) jurisprudence
and is based on a misreading of the treatise on which the major-
ity relies. In that treatise, the author distinguishes between a
person’s motivation to take an action in specific circumstances
and a person’s propensity to act in a particular manner under
general circumstances.10 The confusion here arises because the
author refers to a person’s propensity attached to a motive and
a person’s propensity attached to character. He also argues that
whenever a person has a motive to commit a crime, concluding
that the person acted on that motivation involves some infer-
ence about the person’s bad character. He argues that “[t]he
question, therefore, is whether the connection between the
existence of the motive and acting on the motive requires a
character inference.”11 but he explains the difference between a
person’s motive and character propensities as follows:
[H]ow does motive-based propensity differ from character-
based propensity? primarily, the law assumes that motive
is more specific than character, and its existence in a
given situation does not depend upon the person’s moral-
ity. Under the right set of circumstances, even non-violent
people can possess a motive to act violently, and honest
people can have a motive to lie. . . . We assume that a
motive might exist because any person might possess
one under those specific circumstances. The tendency to
have such a motive is simply human; it does not derive
from a trait of character specific to the person involved
in the trial.12
This case offers a textbook example of the distinction that
the author makes. as noted, the direct evidence in the murder
trial showed that Torres’ motive for the murders was to keep
Hall and Donohue from calling the police. This is a classic
10 See David p. Leonard, The New Wigmore: Evidence of Other Misconduct
and Similar Events § 8.3 (Richard D. Friedman ed. 2009).
11 Id. at 502.
12 Id. at 496 (emphasis in original).
STaTE v. TORRES 	191
Cite as 283 Neb. 142

example of motive proof that does not rely on propensity rea-
soning, or reasoning that the defendant acted in conformity
with a bad character trait. Under this proof, the defendant com-
mitted the murder in response to the specific possibility
of being charged with [an extrinsic] crime as a result
of Victim’s reporting of the crime to the authorities.
arguably, at least, to make the inference we need not ask
whether Defendant possesses a violent character, nor is
the inference based on the sorts of general motivations
that might affect all people. We need only note the pos-
sibility that any person with this specific motive is more
likely to act on the motive than a randomly chosen person
without such a motive.13
In contrast, the State’s reason for presenting Torres’ prior act
of kidnapping and robbery was to show his motive of needing
money and a car. When admitting extrinsic bad acts evidence to
show financial stress as a motive for the charged crime, courts
must carefully consider whether jurors are likely to view the
motive evidence as actually a reflection of character.14
Obviously, most people under financial stress are no more
likely to commit a robbery or murder than a person without
financial stress. So when the court permitted the jurors to
consider Torres’ prior kidnapping and robbery crimes to show
his motive for the murders, a juror was all but certain to infer
that he would not have committed the murders except for his
specific propensity to commit violent acts to get other people’s
property when he is under financial stress. Under these facts, I
believe the risk was unacceptably high that jurors would infer
that Torres had robbed Hall or murdered Hall and Donohue
because of a flaw in his character—as illustrated by his previ-
ous crimes against packer.
In State v. Sanchez,15 this court addressed the issue of asking
jurors to infer conduct from a proffered motive that is certain
to invoke propensity reasoning. There, the State attempted
13 Id. at 505 (emphasis in original).
14 See Leonard, supra note 10.
15 Sanchez, supra note 6.
192 	283 NEbRaSka REpORTS

to prove a defendant’s motive for sexually assaulting a child
through evidence of his sexual assaults against other children.
We held that the proof of the defendant’s motive relied on pro-
pensity reasoning: “[U]nder the guise of motive, the State is
really attempting to prove propensity, i.e., that one who in the
past was motivated to seek sexual gratification from children is
likely to do so again.”16 Other courts have specifically rejected
the admission of extrinsic acts evidence to prove a motive of
financial stress under similar circumstances.17
I would hold that the court erred in admitting Torres’ extrin-
sic acts to prove this motive. Similarly, the State’s proof of
Torres’ intent based on his extrinsic acts required jurors to
conclude that he intended to achieve the goal implied by his
motive.18 because the State’s proof of motive depended upon
an inference about Torres’ character, the same inference was
necessarily present when his motive was used to show that
he intended to kill Hall and Donohue. So even if intent had
been genuinely at issue, I believe the court additionally erred
in instructing jurors that they could consider Torres’ extrinsic
crimes as proof of his intent. but I conclude that Torres’ verdict
of guilt was surely unattributable to the erroneous admission of
his prior acts to show his motive and intent.
3. erroneouS A dmiSSion of extrinSic
ActS WAS HArmleSS
In a jury trial of a criminal case, an erroneous evidential
ruling results in prejudice to a defendant unless the State
demonstrates that the error was harmless beyond a reasonable
doubt.19 Harmless error exists when there is some incorrect
conduct by the trial court that, on review of the entire record,
did not materially influence the jury’s verdict adversely to a
defendant’s substantial right.20 When determining whether an
16 Id. at 310, 597 N.W.2d at 375.
17 See, e.g., Varoudakis, supra note 8; U.S. v. Utter, 97 F.3d 509 (11th Cir.
1996).
18 See 22 Wright & Graham, supra note 9, § 5240.
19 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
20 Id.
STaTE v. TORRES 	193
Cite as 283 Neb. 142

alleged error is so prejudicial as to justify reversal, we gener-
ally consider whether the error, in the light of the totality of the
record, influenced the outcome of the case.21
Harmless error review looks to the basis on which the jury
actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error, a guilty verdict would surely
have been rendered, but, rather, whether the actual guilty ver-
dict rendered in the questioned trial was surely unattributable
to the error.22 The erroneous admission of evidence that is not
cumulative may constitute harmless error beyond a reasonable
doubt when the defendant’s conviction is supported by over-
whelming evidence that has been properly admitted or admitted
without objection.23
Here, the record shows that Torres was using Hall’s aTM
card shortly after Hall was last seen by someone other than
Torres or Donohue. Torres’ DNa was on the cloth bathrobe
belt that was used to gag Hall. Hall and Donohue were killed
by gunshot wounds from a small-caliber weapon. Torres had
obtained a small-caliber weapon, and the police found ammu-
nition for such a weapon among Torres’ possessions in his
Houston motel room. Torres burned Hall’s car after he got to
the Houston area and learned that the police were looking for
him. He also bribed witnesses to fabricate exculpatory evi-
dence for him. and most important, Torres told both Mattson
and Cross that he had killed Hall and Donohue. although
he gave slightly different versions of the story to these wit-
nesses, the versions were similar in all significant aspects
and sufficient to conclude that he had truthfully conveyed
his conduct.
Even if Torres could provide a plausible explanation for
any single piece of this evidence, when considered together,
the evidence of his guilt was overwhelming. Thus, I conclude
that there is no reasonable probability that the erroneously
admitted evidence materially influenced the jury’s verdict of
21 Id.
22 State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
23 State v. Rieger, 260 Neb. 519, 618 N.W.2d 619 (2000).
194 	283 NEbRaSka REpORTS

guilt. I therefore concur in the majority’s judgment affirming
Torres’ convictions.
II. NO CONSTITUTIONaL ERROR OCCURS IN THE
WEIGHING pROCESS WHEN THE SENTENCER
GIVES aGGRaVaTING WEIGHT TO THE SaME
EVIDENCE UNDER a DIFFERENT
SENTENCING FaCTOR
as the majority opinion notes, the sentencing panel issued
its order before we issued our decision in State v. Sandoval.24
In Sandoval, the majority disagreed with the U.S. Supreme
Court’s approval of a state court’s “mental anguish” narrowing
factor under an “especially heinous, atrocious, or cruel” aggra-
vator in Walton v. Arizona.25 In Walton, the Court affirmed the
arizona Supreme Court’s narrowing factor of mental anguish
under a heinousness aggravator when the victim would have
been uncertain as to his ultimate fate. but the Sandoval major-
ity concluded that “[a]ll victims threatened by a deadly weapon
would have uncertainty as to their ultimate fate.”26 It therefore
disapproved of the “mental anguish” narrowing factor for
Nebraska’s “especially heinous, atrocious, or cruel” murder
under aggravator (1)(d).27
I disagreed with that decision. and I continue to believe
that the mental anguish factor for a victim’s uncertainty of his
ultimate fate could be constitutionally considered when the evi-
dence would support one of two findings: (1) The victim would
have been uncertain whether the defendant intended to kill him
and had time to agonize over whether the defendant would
decide to kill him; or (2) the victim would have been certain
of the defendant’s intent to kill him and had time to agonize
over his imminent doom before the defendant committed the
24 State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010), cert. denied 563
U.S. 1012, 131 S. Ct. 2912, 179 L. Ed. 2d 1254 (2011).
25 Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511
(1990), overruled on other grounds, Ring v. Arizona, 536 U.S. 584, 122 S.
Ct. 2428, 153 L. Ed. 2d 556 (2002).
26 Sandoval, supra note 24, 280 Neb. at 353, 788 N.W.2d at 212.
27 See Neb. Rev. Stat. § 29-2523(1)(d) (Reissue 2008).
STaTE v. TORRES 	195
Cite as 283 Neb. 142

murder. but now, under Sandoval, the mental anguish narrow-
ing factor under § 29-2523(1)(d) is invalid. So the question is,
How do we deal with the sentencing panel’s reliance on the
mental anguish factor to find the existence of the heinousness
prong of aggravator (1)(d)?
I believe that the majority opinion incorrectly analyzes this
issue in two major respects: First, it fails to apply the proper
standard for determining whether constitutional error occurred
in the sentencing process. Second, it fails to set out and apply
the correct standard for determining whether a sentencing error
in a capital case is harmless.
1. unconStitutionAl SkeWing under
B rown v. S anderS
as I have previously pointed out,28 the U.S. Supreme Court’s
decision in Brown v. Sanders29 has changed the analytical frame-
work for determining whether a constitutional error occurs in
a capital sentencing case when a sentencer considers an invalid
sentencing factor. Under Brown,
[a]n invalidated sentencing factor (whether an eligibility
fact or not) will render the sentence unconstitutional by
reason of its adding an improper element to the aggrava-
tion scale in the weighing process unless one of the other
sentencing factors enables the sentencer to give aggravat-
ing weight to the same facts and circumstances.30
In other words, if the sentencer could have given aggravating
weight to the same facts and circumstances under a different
sentencing factor, then no constitutional error occurred.31
For example, in Brown, the state court invalidated two of
the four eligibility factors that the jury considered in determin-
ing whether a death sentence was appropriate. Nonetheless, in
addition to these sentencing factors, the California sentencing
scheme included a catchall sentencing factor for considering
28 See Sandoval, supra note 24 (Connolly, J., concurring in part, and in part
dissenting).
29 Brown v. Sanders, 546 U.S. 212, 126 S. Ct. 884, 163 L. Ed. 2d 723
(2006).
30 Id., 546 U.S. at 220 (emphasis in original).
31 See Brown, supra note 29.
196 	283 NEbRaSka REpORTS

“‘[t]he circumstances of the crime of which the defendant was
convicted in the present proceeding.’”32 because the catch-
all sentencing factor permitted the jury to consider the same
aggravating facts and circumstances presented under the invali-
dated factors, no constitutional error in the weighing proc-
ess occurred.33
Here, the sentencing panel found that the State had proved
the mental anguish factor because Torres bound and gagged
Hall before killing him. The panel concluded that these cir-
cumstances constituted mental suffering because Hall was
completely at Torres’ mercy and could not know his ultimate
fate. It did not find the existence of physical torture. So under
Brown, the question is whether the sentencing panel nonethe-
less gave aggravating weight to the binding and gagging facts
under a different sentencing factor. although the majority
opinion does not acknowledge the Brown standard, it con-
cludes that the evidence supported the existence of the narrow-
ing factors for the “helplessness of the victim” and “senseless-
ness of the crime” under the exceptional depravity prong of
aggravator (1)(d).
I agree that evidence showing Torres killed Hall after he had
bound and gagged him supported the existence of the helpless
victim factor under the exceptional depravity prong.34 because
the sentencing panel properly gave aggravating weight to the
evidence under this narrowing factor, its consideration of the
evidence did not skew its weighing process under Brown. Thus,
no constitutional error occurred.
2. A n A ppellAte court’S finding tHAt Sufficient
evidence Supported otHer Sentencing fActorS
doeS not cure conStitutionAl error
in A cApitAl Sentencing cASe
If the sentencing panel had improperly considered—under
any aggravating factor—evidence that Torres killed Hall after
32 Id., 546 U.S. at 222.
33 See id.
34 See, State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011); State v. Palmer,
224 Neb. 282, 399 N.W.2d 706 (1986), citing State v. Peery, 199 Neb. 656,
261 N.W.2d 95 (1977).
STaTE v. TORRES 	197
Cite as 283 Neb. 142

Torres had bound and gagged him, I do not believe the error
could be cured by simply concluding that other narrowing fac-
tors under aggravator (1)(d) were supported by sufficient evi-
dence. Under Brown, no constitutional error occurred here, so
no harmless error analysis is required. but the Sandoval major-
ity did not follow Brown in determining whether unconstitu-
tional skewing occurred in the weighing process. So the rule
stated in Sandoval is the law. Under that rule, constitutional
error occurred because the sentencing panel relied on an invali-
dated factor and harmless error analysis is required:
When an appellate court reviewing a death penalty
invalidates one or more of the aggravating circumstances,
or finds as a matter of law that any mitigating circum-
stance exists that the sentencing panel did not consider in
its balancing, the appellate court may, consistent with the
U.S. Constitution, conduct a harmless error analysis or
remand the cause to the district court for a new sentenc-
ing hearing.35
a sentencing error is not harmless because an appellate
court concludes that other aggravating factors are sufficiently
supported by the evidence. This court lacks statutory authority
to reweigh mitigating and aggravating circumstances on appeal.
In doing so, we act “as an unreviewable sentencing panel in
violation of Nebraska law.”36 To reweigh mitigating and aggra-
vating circumstances violates a capital defendant’s due process
rights under Nebraska law. So I disagree with the following
statement in the majority opinion:
[T]he 	sentencing 	panel 	made 	detailed 	findings 	and
explained that both prongs of the aggravator had been
proved. as a result, Torres was not prejudiced by the
sentencing panel’s erroneous understanding of aggravator
(1)(d)’s “especially heinous, atrocious, [or] cruel” provi-
sion so long as the evidence was sufficient to support
the panel’s finding that the murder exhibited exceptional
depravity.
(Emphasis omitted.)
35 Sandoval, supra note 24, 280 Neb. at 349-50, 788 N.W.2d at 209.
36 Id. at 358, 788 N.W.2d at 214-15.
198 	283 NEbRaSka REpORTS

Instead, in State v. Ryan,37 we explained that Chapman v.
California38 governs harmless error analysis of constitutional
errors. The question under Chapman “is not whether the legally
admitted evidence was sufficient to support the death sentence,
. . . but rather, whether the State has proved ‘beyond a reason-
able doubt that the error complained of did not contribute to
the [sentence] obtained.’”39 This standard is consistent with the
harmless error standard that we apply when reviewing a court’s
improper admission of evidence in the guilt phase of a capital
case. and the U.S. Supreme Court also applies the Chapman
standard to constitutional errors occurring in the sentencing
phase of a capital murder trial.40
I would agree that there is no reasonable probability that the
sentencing panel’s consideration of the mental anguish factor
under the heinousness prong contributed to Torres’ sentences
because the panel properly gave aggravating weight to the
same evidence under the helpless victim sentencing factor. This
is similar to what we concluded in State v. Ryan.41 although
Brown has since subsumed this analysis under its constitutional
error inquiry, our harmless error analysis in Ryan is consistent
with Brown under a different analytical framework.
but the statements and analysis in the majority opinion are
not consistent with U.S. Supreme Court precedent. The major-
ity opinion would make harmless error turn on whether a death
sentence is supported by other sufficient evidence under dif-
ferent narrowing factors, without regard to whether the same
evidence supported the existence of those factors. In addition
to being inconsistent with the fact that we do not reweigh
aggravating and mitigating circumstances, this harmless error
37 State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995), abrogated on other
grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
38 Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967).
39 See Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S. Ct. 1792, 100 L.
Ed. 2d 284 (1988), quoting Chapman, supra note 38. accord Williams v.
Clarke, 40 F.3d 1529 (8th Cir. 1994).
40 See Satterwhite, supra note 39.
41 See Ryan, supra note 37.
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standard ignores what Chapman42 requires. I therefore dissent
from the majority’s harmless error standard and analysis.
III. SENTENCING paNEL ERRED IN GIVING
aGGRaVaTING WEIGHT TO EVIDENCE
SUppORTING THE “RELISHING OF
THE MURDER” FaCTOR
In addition to finding the existence of the mental anguish
factor, the sentencing panel found the existence of four narrow-
ing factors under the exceptional depravity prong of aggravator
(1)(d). It found that the following factor existed only as to the
murder of Hall: the helplessness of the victim. The panel also
found that the following factors existed for the murders of both
Hall and Donohue: (1) the senselessness of the crime; (2) the
infliction of gratuitous violence on the victims; and (3) the
apparent relishing of the murder.
Torres assigns that “[t]he sentencing panel erred in finding
the evidence sufficient to prove beyond a reasonable doubt
the existence of aggravators 1(a), 1(b), and 1(d).”43 Under
this assignment of error, Torres argues that his statements to
Cross and Mattson did not show that he relished the murders,
and he refers to his previous argument on this issue. Torres
had previously argued in his brief that the sentencing panel’s
erroneous consideration of the mental anguish factor was not
harmless because we could not say that the sentencing panel
had given great weight to other factors that could be applied to
any murder or that were contrary to the evidence. and Torres
explicitly argued that the evidence did not show he had relished
the murders:
There is nothing in the differing versions of the mur-
ders given to Cross and Mattson by [Torres] that sug-
gests that [Torres] relished the murders. The mere fact
that [Torres] informed another person that he committed
the murders adds nothing worthy of the tag “exceptional
depravity,” — i.e. “marked by exceptional debasement,
corruption, perversion or deterioration.” . . . Nothing in
42 Chapman, supra note 38.
43 brief for appellant at 103 (emphasis supplied).
200 	283 NEbRaSka REpORTS

the bill of Exceptions suggests that [Torres’] manner of
telling Cross and Mattson what happened was of a brag-
ging, gloating, or arrogant nature . . . . If Cross’s account
of [Torres’] phone call is accepted as true, then it can be
said that [Torres] did not gratuitously murder . . . Hall, but
rather found it necessary to do so because [Torres] did not
want the cops to be called.44
but in affirming the sentencing panel’s finding of the relish-
ing of the murder factor, the majority opinion ignores these
arguments. In giving short shrift to a constitutional argument
in a death penalty case, we fail in our duty “to protect the
constitutional rights afforded under both the federal and the
state Constitutions.”45 Equally important, I do not agree that
the evidence supported the existence of the relishing of the
murder factor.
as I explained in my Sandoval concurrence, we adopted
our exceptional depravity narrowing factors from the arizona
Supreme Court. and under that court’s precedents, relishing
the murder refers to the defendant’s actions or words, apart
from the murder itself, that show the defendant savored or
took pleasure in a killing. I provided examples of the type of
conduct that proves the existence of that factor under arizona
precedents. In general, the defendant’s conduct must show the
defendant’s debasement or perversion in savoring the killing.
and Torres’ statements to Cross and Mattson—that he killed
the victims to keep them from calling the police—do not fit
the bill.
In contrast, the majority does not attempt to compare these
facts to analogous facts or to clarify what relishing the murder
means for future guidance. but I do not believe that Torres’
admissions that he committed the murders can show he relished
the murders without some additional statement showing that he
took pleasure in killing the victims, as distinguished from his
indifference to human life—a definition that would apply to
any murder and would fail to preclude arbitrary sentencing.
44 Id. at 100-101.
45 Mata, supra note 37, 275 Neb. at 38, 745 N.W.2d at 260.
STaTE v. TORRES 	201
Cite as 283 Neb. 142

Similarly, the majority opinion’s conclusion that these facts
satisfy the relishing of the murder factor trivializes the purpose
of having narrowing factors under the exceptional deprav-
ity prong. Those factors guide the sentencer in determining
whether a murder was totally and senselessly bereft of any
regard for human life.46 by lowering the bar for proving this
narrowing factor, the majority opinion undermines our efforts
to clearly channel the sentencer’s discretion so that the death
penalty is not imposed in an arbitrary manner. The narrowing
factors cannot be vague themselves.
I also conclude that the sentencing panel could not have
considered Torres’ statements to Cross and Mattson under any
other sentencing factor that it found to exist. Under Brown
or Sandoval, then, the sentencing panel’s giving aggravating
weight to these statements was constitutional error. I believe
that this error requires us to conclude that there is no reason-
able probability that the sentencing panel’s improper consider-
ation of the relishing sentencing factor contributed to Torres’
sentences because the other aggravating facts that the sentenc-
ing panel found to exist overwhelmingly supported the sen-
tences. and I believe that we can reach that conclusion.
although evidence that Torres admitted to killing Hall and
Donohue was powerful evidence of his guilt, it was minor
evidence when considered to determine whether Torres was
deserving of the death penalty. In contrast to this evidence, the
sentencing panel properly weighed evidence that Torres mur-
dered Hall and Donohue at the same time; that he murdered
Hall while he was helpless because Torres had bound and
gagged him; and that he murdered Hall and Donohue to keep
them from calling the police, i.e., to conceal the robbery and
his identity as the perpetrator. In addition, the panel properly
weighed Torres’ history of serious assaultive and terrorizing
activity. This evidence showed that under threat of their death,
Torres had kidnapped and robbed packer and forced Cross and
padilla to follow his orders.
46 See, State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989); Palmer, supra
note 34.
202 	283 NEbRaSka REpORTS

It is true that the sentencing panel did not specify which
factors or evidence it considered most significant. but neither
did the panel’s order state that Torres’ statements to Cross
and Mattson weighed heavily in its decision. Considering the
overwhelming aggravating evidence that the sentencing panel
weighed, I believe that we can conclude beyond a reasonable
doubt that Torres’ statements to Cross and Mattson did not
materially influence the sentencing panel. Instead, the panel
appears to have been so convinced of its sentencing decision
that it overreached in finding that the relishing of the murder
factor existed. That was error, but it was harmless error.
In sum, I agree with the conclusions in the majority opinion
because I conclude that the errors in the guilt and sentenc-
ing phases were harmless. but I do not agree with how the
majority opinion has analyzed these issues. I believe that the
majority opinion incorrectly holds that extrinsic bad acts are
admissible to prove motive even if they are relevant to motive
only by reasoning that the defendant acted in conformity with
a bad character. as stated, this conclusion will upend our rule
404(2) jurisprudence.
Even more so, I disagree with the majority opinion’s hold-
ing that a defendant in a capital murder case is not prejudiced
by a sentencer’s reliance on an invalidated narrowing factor
if other evidence supports the sentencer’s finding that another
factor existed. I believe that this analysis is contrary to the
constitutional requirements for finding capital sentencing errors
harmless and how we have previously analyzed such errors.
I believe this opinion will significantly confuse the way we
review capital sentencing procedures.
STaTE v. TORRES 	203
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