State v. Sandoval

before converting disability benefit payments from temporary
total disability to permanent partial disability. As asserted in
appellees’ cross-appeal, the district court erred when it failed to
grant appellees’ motion to dismiss on the ground that appellees
had complied with all the terms of the 1993 award. Although
our reasoning differs from that of the district court, we affirm
its order dismissing Weber’s summons and order of garnish-
ment and interrogatories with prejudice.
A ffirmed.
C onnolly, J., not participating.
StAte of nebrASkA, Appellee , v.
JoSe SAndovAl , AppellAnt.
788 N.W.2d 172
Filed July 30, 2010. 	No. S-05-142.
1. Criminal Law: Aggravating and Mitigating Circumstances. Aggravating cir-
cumstances are not to be considered elements of the underlying crimes.
2. Trial: Jury Instructions. The giving of a cautionary instruction generally rests
within the judicial discretion of the trial court.
3. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the
contrary, it is presumed that a jury followed the instructions given in arriving at
its verdict.
4. Trial: Juries: Appeal and Error. A district court’s decision regarding impanel-
ing an anonymous jury is reviewed under the deferential abuse-of-discretion
standard.
5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that counsel’s performance
was deficient and that this deficient performance actually prejudiced his or
her defense.
6. Juries: Words and Phrases. Generally, an “anonymous jury” describes a situ-
ation where juror identification information is withheld from the public and the
parties themselves.
7. Juries: Appeal and Error. To reduce the dangers associated with anonymous or
numbers juries, a court should not impanel such a jury unless it (1) concludes
that there is a strong reason to believe the jury needs protection and (2) takes
reasonable precautions to minimize any prejudicial effects on the defendant and
to ensure that his or her fundamental rights are protected. Within the scope of this
two-part test, the decision is left to the discretion of the lower court and is subject
to a review for abuse of discretion.
STATE v. SANdovAL 	309
Cite as 280 Neb. 309
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

8. Constitutional Law: Juries. The impaneling of an anonymous jury and its
potential impact on the constitutionality of a trial must receive close judicial
scrutiny and be evaluated in the light of reason, principle, and common sense.
9. Effectiveness of Counsel: Words and Phrases. Counsel’s performance is defi-
cient if counsel did not perform at least as well as a criminal lawyer with ordinary
training and skill in the area.
10. Juries. voir dire is conducted under the supervision of the court, and a great deal
must, of necessity, be left to its sound discretion.
11. Juror Qualifications: Parties: Appeal and Error. The extent to which the par-
ties may examine jurors as to their qualifications rests largely in the discretion
of the trial court, the exercise of which will not constitute reversible error unless
clearly abused, and where it appears that harmful prejudice resulted.
12. Juror Qualifications: Death Penalty. It is well established that Neb. Rev. Stat.
§ 29-2006(3) (Reissue 2008) allows courts to question jurors about their beliefs
regarding the death penalty.
13. Statutes: Legislature: Intent. Under principles of statutory construction, the
components of a series or collection of statutes pertaining to a certain subject
matter may be conjunctively considered and construed to determine the intent of
the Legislature so that different provisions of the act are consistent, harmonious,
and sensible.
14. Trial: Witnesses: Indictments and Informations. Whether to permit the names
of additional witnesses to be endorsed upon an information after the information
has been filed is within the discretion of the trial court.
15. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial
depends largely on the facts of each case.
16. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appel-
late court reviews a motion for new trial on the basis of prosecutorial misconduct
for an abuse of discretion of the trial court.
17. Trial: Proof: Appeal and Error. A defendant must demonstrate that a trial
court’s conduct, whether action or inaction during the proceeding against the
defendant, prejudiced or otherwise adversely affected a substantial right of
the defendant.
18. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
grant a mistrial for prosecutorial misconduct, the defendant must show that a
substantial miscarriage of justice has actually occurred.
19. Trial: Prosecuting Attorneys: Motions for Mistrial: Juries. Remarks made by
the prosecutor during final argument which do not mislead or unduly influence
the jury do not rise to the level sufficient to require granting a mistrial.
20. Trial: Motions for Mistrial: Waiver: Appeal and Error. When a party has
knowledge during trial of irregularity or misconduct, the party must timely
assert his or her right to a mistrial. one may not waive an error, gamble on a
favorable result, and, upon obtaining an unfavorable result, assert the previously
waived error.
21. Motions for Mistrial: Appeal and Error. In order for error to be predicated
upon misconduct of counsel, it must be so flagrant that neither retraction nor
rebuke from the court can entirely destroy its influence.
310 	280 NEBRASkA REpoRTS

22. Prosecuting Attorneys: Appeal and Error. Whether a prosecutor’s inflamma-
tory remarks are sufficiently prejudicial to constitute error must be determined
upon the facts of each particular case.
23. Right to Counsel: Conflict of Interest: Appeal and Error. Whether a defend-
ant’s lawyer’s representation violates a defendant’s right to representation free
from conflicts of interest is a mixed question of law and fact that an appellate
court reviews independently of the lower court’s decision.
24. Constitutional Law: Right to Counsel: Conflict of Interest. A conflict of
interest which adversely affects a lawyer’s performance violates the client’s Sixth
Amendment right to effective assistance of counsel.
25. Effectiveness of Counsel: Conflict of Interest. In Nebraska, the right to effec-
tive assistance of counsel has been interpreted to entitle the accused to the undi-
vided loyalty of an attorney, free from any conflict of interest.
26. ____: ____. A conflict of interest must be actual rather than speculative or
hypothetical before a conviction can be overturned on the ground of ineffective
assistance of counsel.
27. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must
remain with an indigent accused unless one of three conditions is met: (1) The
accused knowingly, voluntarily, and intelligently waives the right to counsel
and chooses to proceed pro se; (2) appointed counsel is incompetent, in which
case new counsel is to be appointed; or (3) the accused chooses to retain pri-
vate counsel.
28. Jury Instructions. Jury instructions must be read as a whole, and if they
fairly present the law so that the jury could not be misled, there is no prejudi-
cial error.
29. Constitutional Law: Jury Instructions. The proper inquiry is not whether a jury
instruction “could have” been applied in an unconstitutional manner, but whether
there is a reasonable likelihood that the jury applied it in that manner.
30. Constitutional Law: Sentences: Death Penalty: Aggravating and Mitigating
Circumstances: Appeal and Error. 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 circumstance 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 sentencing hearing.
31. Constitutional Law: Convictions: Appeal and Error. Even a constitutional
error which was harmless beyond a reasonable doubt does not warrant the rever-
sal of a criminal conviction.
32. Sentences: Death Penalty: Aggravating and Mitigating Circumstances:
Proof: Appeal and Error. Harmless error review in a capital sentencing
case looks to whether it is clear beyond a reasonable doubt that the sentenc-
ing court’s decision would have been the same absent any reliance on an
invalid aggravator.
33. Criminal Law: Jury Instructions: Words and Phrases. “Mental anguish,”
although included in Nebraska’s pattern jury instructions, defined as a victim’s
uncertainty as to his or her ultimate fate, does not have any basis in Nebraska
STATE v. SANdovAL 	311
Cite as 280 Neb. 309

law. Neither the courts nor the Legislature has used the term “mental anguish” as
a part of Neb. Rev. Stat. § 29-2523(1)(d) (Reissue 2008).
34. Jury Instructions. A jury instruction should correctly state the Nebraska law
applicable to the issues in the case.
35. Sentences: Death Penalty. Whenever a State seeks to impose the death penalty,
the discretion of the sentencing body must be suitably directed and limited so as
to minimize the risk of wholly arbitrary and capricious action.
36. ____: ____. A sentencing authority’s discretion must be guided and channeled by
requiring examination of specific factors that argue in favor of or against imposi-
tion of the death penalty.
37. Homicide: Aggravating and Mitigating Circumstances: Proof. “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.
38. Death Penalty: Aggravating and Mitigating Circumstances. The balancing of
aggravating circumstances against mitigating circumstances in deciding whether
to impose the death penalty is not merely a matter of number counting, but,
rather, requires a careful weighing and examination of the various factors.
39. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
40. Jury Instructions: Convictions: Appeal and Error. Before an error in the giv-
ing of instructions can be considered as a ground for reversal of a conviction, it
must be considered prejudicial to the rights of the defendant.
41. Jury Instructions. A trial court is not obligated to instruct the jury on matters
which are not supported by the evidence in the record.
42. 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.
43. Judges: Evidence: Presumptions. It is presumed that judges disregard evidence
which should not have been admitted.
44. Trial: Rebuttal Evidence. Rebuttal evidence is confined to new matters first
introduced by the opposing party and is not an opportunity to bolster, corroborate,
reiterate, or repeat a case in chief.
45. Trial: Rebuttal Evidence: Appeal and Error. The abuse of discretion standard
is applied to an appellate court’s review of a trial court’s ruling on the admissibil-
ity of rebuttal testimony.
46. Courts: Sentences. A sentencing panel has broad discretion as to the source and
type of evidence and information which may be used in determining the kind and
extent of the punishment to be imposed.
47. Courts: Sentences: Evidence. Neb. Rev. Stat. § 29-2521 (Reissue 2008) permits
a sentencing panel to receive any evidence which the presiding judge deems to
have probative value.
48. Death Penalty. Execution by electrocution is cruel and unusual punishment.
312 	280 NEBRASkA REpoRTS

49. Constitutional Law: Death Penalty. The death penalty, when properly imposed
by a State, does not violate either the 8th or the 14th Amendment to the U.S.
Constitution or Neb. Const. art. I, § 9.
50. Criminal Law: Prosecuting Attorneys. The State retains broad discretion as
to whom to prosecute and what charges to file. This discretion is limited only
to constitutional constraints, that is, a decision whether to prosecute may not
be based on an unjustifiable standard such as race, religion, or other arbi-
trary classification.
51. Criminal Law: Courts: Prosecuting Attorneys: Presumptions: Evidence. The
presumption of regularity supports prosecutorial decisions, and in the absence
of clear evidence to the contrary, courts presume that prosecutors have properly
discharged their official duties. In order to dispel this presumption, a criminal
defendant must present clear evidence to the contrary.
52. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error.
53. Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate
trial strategy and tactics.
54. Sentences: Death Penalty: Appeal and Error. Under Neb. Rev. Stat.
§ 29-2521.03 (Reissue 2008), the Nebraska Supreme Court is required, upon
appeal, to determine the propriety of a death sentence by conducting a propor-
tionality review. This review requires the court to compare the aggravating and
mitigating circumstances with those present in other cases in which a district
court imposed the death penalty. The purpose of this review is to ensure that the
sentences imposed in a case are no greater than those imposed in other cases with
the same or similar circumstances.
Appeal from the district Court for Madison County: pAtriCk
G. roGerS, Judge. Affirmed.
Ronald E. Temple, of Fitzgerald, vetter & Temple, for
appellant.
Jon Bruning, Attorney General, and J. kirk Brown for
appellee.
WriGht, C onnolly, G errArd, StephAn, mCC ormACk , and
miller-lermAn, JJ., and CASSel , Judge.
WriGht, J.
TABLE oF CoNTENTS
I. 	Nature of Case ............................................................... 316
II. 	Background .................................................................... 316
1. 	Crimes...................................................................... 316
STATE v. SANdovAL 	313
Cite as 280 Neb. 309

2. 	Trial and Aggravation .............................................. 319
3. 	Mitigation and Sentencing ....................................... 319
III. Assignments of Error ..................................................... 320
Iv. Analysis ......................................................................... 321
1. 	L.B. 1 ....................................................................... 321
2. 	preliminary Examination as to
Aggravating Circumstances ..................................... 322
3. 	Cautionary Instructions............................................ 323
(a) Standard of Review ........................................... 323
(b) Analysis ............................................................. 323
4. 	Jury .......................................................................... 325
(a) Standard of Review ........................................... 325
(b) Analysis ............................................................. 325
(i) 	Types of Anonymous Juries ....................... 325
(ii) 	Two-part Test ............................................. 327
a. Compelling Reason to Believe
Jury Needs protection............................ 328
b. precautions to prevent prejudice ........... 330
i. 	prejudice during voir dire ............... 330
ii. prejudice to presumption
of Innocence ..................................... 331
(iii) Ineffective Assistance of Counsel .............. 332
5. 	permitting Jurors to Believe Three-Judge panel
determined Appropriateness of death Sentence ..... 333
(a) Standard of Review ........................................... 333
(b) Analysis ............................................................. 333
6. 	disclosure of Aggravating Circumstances to Jury .. 334
(a) Standard of Review ........................................... 334
(b) Analysis ............................................................. 334
7. 	Excessive Endorsement of Witnesses ...................... 335
(a) Standard of Review ........................................... 335
(b) Analysis ............................................................. 336
8. 	Improper Statements by prosecutor and Court ....... 336
(a) Standard of Review ........................................... 337
(b) Analysis ............................................................. 337
(i) 	prosecutorial Misconduct ........................... 337
(ii) 	Improper Comment on Evidence ............... 341
314 	280 NEBRASkA REpoRTS

9. 	Enmund-Tison .......................................................... 341
10. Removal of Counsel ................................................ 342
(a) Standard of Review ........................................... 342
(b) Analysis ............................................................. 343
(i) 	Acquaintance With victims ........................ 343
(ii) 	External distractions .................................. 344
(iii) Jen Birmingham ......................................... 346
11. Limiting Instruction as to “the murder”
in Aggravators.......................................................... 348
12. “Especially Heinous, Atrocious or Cruel” ............... 349
(a) Constitutionality ................................................ 349
(i) 	Standard of Review .................................... 349
(ii) 	Analysis...................................................... 350
a. Mental Anguish ..................................... 351
b. Exceptional depravity ........................... 354
c. Harmless Error Analysis........................ 354
(b) “Apparently Relished” ....................................... 364
13. “Great Risk of death” ............................................. 364
(a) Standard of Review ........................................... 364
(b) Analysis ............................................................. 365
(i) 	omission of “Great” .................................. 365
(ii) 	Number of persons placed at Risk ............ 366
(iii) Accessorial Liability .................................. 367
14. Motions for Acquittal as to Aggravating
Circumstances .......................................................... 367
(a) Standard of Review ........................................... 367
(b) Analysis ............................................................. 367
(i) 	Murder Committed to Conceal Identity
of perpetrator ............................................. 368
(ii) 	Murders Were Especially Heinous,
Atrocious, Cruel, or Manifested
Exceptional depravity ................................ 369
(iii) offender knowingly Created Great Risk
of death to at Least Several persons ......... 369
15. Mitigation and Sentencing Errors ............................ 370
(a) presentence Investigation Report ....................... 370
(b) denial of Jury at Mitigation Hearing ................ 370
STATE v. SANdovAL 	315
Cite as 280 Neb. 309

(c) denial of Rebuttal Evidence .............................. 371
(d) Sentencing panel’s Use of
Transcribed Testimony ....................................... 372
16. death penalty........................................................... 373
(a) death by Electrocution ...................................... 373
(b) Cruel and Unusual punishment ......................... 374
(c) Appropriateness of Sentence ............................. 374
(d) discrimination ................................................... 374
17. Ineffective Assistance of Counsel ............................ 375
(a) Standard of Review ........................................... 375
(b) Analysis ............................................................. 376
(i) 	psychiatric Evaluation................................ 376
(ii) 	Testimony of Todd Uhlir ............................ 377
(iii) Failure to Call Forensic pathologist .......... 378
(iv) Failure to Adduce prior Consistent
Statements .................................................. 380
18. Independent proportionality Review ....................... 380
v. 	Conclusion ..................................................................... 381
I. NATURE oF CASE
Jose Sandoval was convicted in Madison County district
Court of five counts of first degree murder and five counts of
use of a deadly weapon to commit a felony. He was sentenced
to death for each count of murder, 48 to 50 years’ imprisonment
on three of the weapon counts, and 50 to 50 years’ imprison-
ment on the remaining two weapon counts. Sandoval appeals.
II. BACkGRoUNd
1. C rimeS
on the morning of September 26, 2002, Sandoval, Erick
vela, and Jorge Galindo entered a bank located in Norfolk,
Nebraska. In less than a minute, they shot and fatally wounded
four bank employees and one customer: Lola Elwood, Samuel
Sun, Lisa Bryant, Jo Mausbach, and Evonne Tuttle.
Before the shootings occurred, witnesses observed three
Hispanic males dressed in dark, baggy clothing on the streets
near the bank and in the alley behind the bank. one of
the males was identified as vela, and another was identified
as Sandoval.
316 	280 NEBRASkA REpoRTS

At 8:44 a.m., the bank’s surveillance video shows Sandoval,
vela, and Galindo entering the bank wearing dark clothing.
Galindo turns to his left and enters Elwood’s office, and vela
turns to his right and enters Bryant’s office. Sandoval, wearing
a backpack, walks up to the teller counter and stands next to
Tuttle. He points a semiautomatic gun at the employees behind
the teller counter and begins shooting. He then turns and shoots
Tuttle. The video shows Sandoval jumping over the teller coun-
ter and then jumping back to the lobby. In doing so, he left a
footprint on the counter, which matched the shoe he was wear-
ing when he was apprehended.
A customer waiting at the drive-through window closest to
the bank observed Sandoval approach the teller counter with
a gun. She saw him point the gun at Sun and then motion for
Mausbach to come around the corner. She saw Sandoval shoot
to the right and to the left.
Meanwhile, customer Micki koepke heard two shots as she
approached the bank on foot from the parking lot. Upon enter-
ing, she saw Sandoval behind the teller counter, holding a gun
and smiling at her. Realizing a robbery was in progress, she
turned to run out of the bank. She heard two more shots on her
way out, one of which shattered the glass window around her.
Another bullet impacted the drive-through window of a fast-
food restaurant across the street.
When the robbery began, Elwood was meeting with bank
employees Susan Staehr and Cheryl Cahoy. Staehr and Cahoy
watched Galindo enter the doorway of Elwood’s office, pull
out a gun, and shoot Elwood several times in the chest. At the
same time, vela entered Bryant’s office and shot her in the leg
and in the neck, while Sandoval shot Mausbach in the head,
Sun in the face and neck, and Tuttle in the back of the head.
All five victims died from injuries sustained from the gun-
shot wounds.
After the robbery, several witnesses saw Sandoval, vela,
and Galindo run from the bank and down the alley. one man
was wearing a backpack. Noticing the men and believing their
behavior to be suspicious, one witness followed them in her car
for several blocks and watched them enter a house.
STATE v. SANdovAL 	317
Cite as 280 Neb. 309

Inside the house, Galindo woke one of the residents. He
pointed a gun at her and demanded her car keys, which she
gave him. He took the keys, and the three men stole her car.
When the police arrived, they recovered a backpack lying in
the next-door neighbor’s yard. The backpack contained spray
paint, gun ammunition, and some “smoke distraction devices.”
police also discovered Sandoval’s fingerprint on a doorframe
of the house.
Using the car’s onStar navigation feature, the Nebraska
State patrol found the vehicle abandoned in a wet, marshy
area along a minimum maintenance road near Meadow Grove,
Nebraska. Nearby, a green and brown Ford pickup with
Madison County plates and a golf cart in the back was stolen
from a residence.
At 11:29 a.m., the o’Neill, Nebraska, police chief received a
call about a suspicious vehicle driving westbound on Highway
275 near o’Neill. The chief located the vehicle, which was
the stolen pickup. Three Hispanic males were slouched low
in the seat. The pickup turned into a parking lot, and the
chief saw Sandoval get out of the pickup and walk into a dis-
count store.
After the pickup reentered Highway 275, the chief pulled
it over. The two remaining occupants were identified as vela
and Galindo and were arrested. Both men’s pants were wet
up to the knees and had mud on the bottom cuffs. Sandoval
was apprehended at a fast-food restaurant next to the discount
store a short time later. He also had mud on the cuffs of
his pants.
After his arrest, Galindo guided officers to the location of
the weapons used in the murders. officers recovered a Glock
model 17, a Ruger model p89, and a Heckler & koch USp sev-
eral miles from Ewing, Nebraska, on Highway 275. The bullet
casings recovered from the scene established these guns were
used in the murders. The Ruger pistol was sold to Sandoval
in January or February 2002. The Glock and Heckler & koch
pistols were stolen from a sporting goods store in Norfolk on
September 5, 2002. Galindo’s girlfriend testified that Galindo
told her he and Sandoval had robbed a gunshop.
318 	280 NEBRASkA REpoRTS

2. triAl And AGGrAvAtion
on November 24, 2003, a jury convicted Sandoval of five
counts of first degree murder and five counts of use of a deadly
weapon to commit a felony. Following the guilty verdicts, the
district court conducted the aggravation phase of the trial in
which the jury was asked to determine the existence of any
aggravating circumstances. The State alleged five aggravators:
(1) that Sandoval has a substantial prior history of serious
assaultive or terrorizing criminal activity; (2) that Sandoval
committed the murder in an effort to conceal the identity of the
perpetrator of such crime other than the murder of that particu-
lar victim; (3) that the murder committed by Sandoval (a) was
especially heinous, atrocious, cruel, or (b) manifested excep-
tional depravity by ordinary standards of morality and intelli-
gence; (4) that at the time the murder was committed, Sandoval
also committed another murder; and (5) that Sandoval, at the
time this murder was committed, knowingly created a great
risk of death to at least several persons.
on december 2, 2003, the jury returned a verdict conclud-
ing that aggravators (2), (3), (4), and (5) existed with respect
to each of the five murders. The judge ordered a presentence
investigation report.
3. mitiGAtion And SentenCinG
After the jury determined the existence of four aggravating
factors, the court proceeded with the mitigation and sentencing
phase of the trial. Hearings began on december 13, 2004. The
three-judge panel received evidence of mitigation and sentence
excessiveness or disproportionality. It concluded that none
of the statutory mitigating circumstances existed, but found
that one nonstatutory mitigating circumstance existed—that
Sandoval suffered from a bad childhood as a result of a dys-
functional family setting. on January 14, 2005, the three-judge
panel sentenced Sandoval to death for each of the five counts
of first degree murder. Sandoval received 48 to 50 years’
imprisonment for three counts of use of a deadly weapon and
50 to 50 years’ imprisonment for two counts of use of a deadly
weapon. All sentences were to be served consecutively.
STATE v. SANdovAL 	319
Cite as 280 Neb. 309

III. ASSIGNMENTS oF ERRoR
Sandoval alleges, consolidated and restated, that the trial
court erred in
(1) failing to find 2002 Neb. Laws, L.B. 1, was unconsti-
tutional, ex post facto legislation, and in violation of the due
process Clause of the 5th and 14th Amendments to the U.S.
Constitution and article I, § 3, of the Nebraska Constitution;
(2) failing to conduct a preliminary examination as to the
aggravating circumstances;
(3) failing to give the jurors a cautionary instruction as to
why they were transported from Grand Island, Nebraska, to
Aurora, Nebraska, and in failing to give a curative instruction
regarding the potential jurors’ discussion of the case during
voir dire;
(4) impaneling an anonymous jury and failing to give a cura-
tive instruction;
(5) permitting the jury to believe that the responsibility for
determining the appropriateness of the death penalty belonged
to the three-judge sentencing panel;
(6) disclosing the notice of aggravation to the jury before the
verdict was rendered on the issue of Sandoval’s guilt;
(7) permitting the State to endorse over 500 witnesses;
(8) permitting improper statements by the prosecutor and
improperly commenting on the evidence;
(9) failing to require the jury to determine whether Sandoval
was a major participant in the crime and exhibited reckless
disregard for human life;
(10) overruling trial counsel’s motions to withdraw and
Sandoval’s motion for substitute counsel, and failing to dis-
charge trial counsel;
(11) failing to give a limiting instruction regarding what
constituted “the murder” in four of the five aggravators;
(12) instructing the jury on aggravator (1)(d);
(13) instructing the jury on aggravator (1)(f);
(14) overruling Sandoval’s motions for acquittal;
(15) receiving evidence, denying rebuttal, and denying a jury
at the mitigation and sentencing phase of the trial; and
(16) not finding that the death penalty is unconstitutional.
320 	280 NEBRASkA REpoRTS

Sandoval 	alleges 	ineffective 	assistance 	of 	counsel 	with
respect to many of the assignments of error listed above.
(17) He also claims his trial counsel provided ineffective
assistance by allowing a court-appointed psychiatrist to exam-
ine Sandoval, eliciting speculative testimony from a witness,
failing to call a forensic pathologist as a rebuttal witness,
and failing to adduce evidence of prior consistent statements
regarding his drug use.
Iv. ANALYSIS
1. l.b. 1
Three of Sandoval’s assignments of error relate to the retro-
active application of L.B. 1. He claims that L.B. 1 is uncon-
stitutional because it discourages a capital defendant from
exercising his right to a jury trial as to the aggravating circum-
stances, that L.B. 1 is ex post facto legislation, and that L.B. 1
violates his right to due process.
prior to the passage of L.B. 1, Nebraska law provided
that after a defendant was found guilty of first degree mur-
der, a trial judge or a three-judge panel determined whether
statutory aggravating circumstances existed. Neb. Rev. Stat.
§§ 29-2520 to 29-2524 (Reissue 1995). If aggravators applied,
the defendant faced a maximum penalty of death. Neb. Rev.
Stat. §§ 28-105 (Cum. Supp. 2002) and 28-303 (Reissue 1995).
If aggravators did not exist, the defendant faced a maximum
penalty of life imprisonment. This procedure was invalidated
by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed.
2d 556 (2002).
In Ring, the U.S. Supreme Court held that capital defendants
are entitled to a jury determination of any fact that would
increase the possible maximum punishment. Because defend-
ants convicted of first degree murder in Nebraska face an
increased maximum punishment if aggravating circumstances
exist, Ring entitles defendants to have a jury determine the
existence of the aggravating circumstances. To bring Nebraska
statutes in compliance with Ring, the Nebraska Legislature
enacted L.B. 1 on November 22, 2002, effective the follow-
ing day.
STATE v. SANdovAL 	321
Cite as 280 Neb. 309

Based on the fact that Ring invalidated Nebraska’s proce-
dure for imposing the death penalty before Sandoval com-
mitted the crimes and that L.B. 1 did not become law until
after he committed the crimes, Sandoval claims several errors
relating to the application of L.B. 1 to his case. First, he
claims that L.B. 1 is ex post facto legislation and in violation
of article I, § 10, of the U.S. Constitution and article I, § 16,
of the Nebraska Constitution. Second, he alleges that L.B. 1
is unconstitutional facially and as applied to the extent that it
discourages a capital defendant from exercising his or her right
to a jury trial as to the aggravating circumstances. Finally,
he claims that the application of L.B. 1 violates the due
process Clauses of the 5th and 14th Amendments to the U.S.
Constitution and article I, § 3, of the Nebraska Constitution.
We recently addressed all of these issues in State v. Galindo,
278 Neb. 599, 774 N.W.2d 190 (2009). In accordance with our
opinion in Galindo, we find that these assignments of error do
not have merit.
2. preliminAry exAminAtion AS to
AGGrAvAtinG C irCumStAnCeS
Sandoval argues that the trial court erred by not conducting
a second preliminary examination regarding the aggravating
circumstances alleged in the second amended information.
Nebraska law requires that a criminal defendant receive a
preliminary hearing before an information is filed against the
defendant for any offense. Neb. Rev. Stat. § 29-1607 (Reissue
2008). This requirement does not extend to amended informa-
tions that do not change the nature or identity of the offense
charged and do not include additional elements. See State v.
Ferree, 207 Neb. 593, 299 N.W.2d 777 (1980).
[1] Further, Neb. Rev. Stat. § 29-2519(2)(d) (Reissue 2008),
enacted to comply with Ring, specifies that aggravating cir-
cumstances are not to be considered elements of the underlying
crimes. Construing § 29-2519 in State v. Mata, 275 Neb. 1, 745
N.W.2d 229 (2008), we stated that the Sixth Amendment to
the U.S. Constitution requires only that defendants have notice
such that they can defend against charges made against them.
322 	280 NEBRASkA REpoRTS

Aggravating circumstances are not essential elements of first
degree murder. Mata, supra.
It is undisputed that Sandoval received a preliminary exam-
ination as to the five charges of first degree murder and
five charges of use of a deadly weapon to commit a felony.
After the preliminary hearing, the State filed an information
on November 1, 2002. It filed an amended information on
december 5, which included a notice of aggravation, and a
second amended information on March 3, 2003. The amended
informations did not include elements different than those
alleged at the preliminary hearing. As such, this assignment
of error is without merit. Because Sandoval was not entitled
to a second preliminary hearing on the amended information,
his argument that his counsel provided ineffective assistance
of counsel by failing to demand a hearing is without merit
as well.
3. CAutionAry inStruCtionS
Sandoval alleges that the trial court erred in not giving the
jurors a cautionary instruction explaining why they were trans-
ported from Grand Island to Aurora and in not giving a curative
instruction regarding the potential jurors’ discussion of the case
during voir dire. He also claims his counsel was ineffective for
failing to conduct voir dire of the entire jury panel.
(a) Standard of Review
[2] The giving of a cautionary instruction generally rests
within the judicial discretion of the trial court. Johnson v.
Nathan, 161 Neb. 399, 73 N.W.2d 398 (1955).
(b) Analysis
Sandoval’s trial took place in Aurora in Hamilton County;
however, the jurors were summoned from Grand Island in
Hall County. To alleviate parking concerns, the trial court
made arrangements for the jurors to be transported as a group,
accompanied by a bailiff, from Grand Island to Aurora and
back each day. Sandoval’s counsel asked the court to give
a cautionary instruction to the jurors advising them that the
reason for the group transportation was based on parking and
STATE v. SANdovAL 	323
Cite as 280 Neb. 309

mileage concerns so that they would not think it was for safety.
The court agreed, but did not ultimately give the instruction
when informing the jury of the transportation arrangements.
Sandoval’s counsel did not object at that time.
Sandoval claims that the trial court’s failure to advise the
jurors of the reason they were transported from Grand Island
to Aurora adversely affected his right to a presumption of
innocence. There is nothing in the record suggesting to jurors
that this practice was for any reason besides logistics. We will
not presume prejudice based on mere speculation. See State v.
Gibbs, 238 Neb. 268, 470 N.W.2d 558 (1991).
Sandoval also alleges that his attorney provided ineffec-
tive assistance of counsel by failing to request voir dire of
the entire jury panel after the trial court received informa-
tion that potential jurors had been discussing the case in the
jury room. potential jurors were sharing information they
had read or heard in the news media about the bank robbery,
but none had any knowledge of the case outside what was in
the news.
At Sandoval’s counsel’s request, the trial court agreed to give
a curative instruction that the jurors disregard any information
they heard in the jury room as well as any other information
they received. In the court’s opening remarks to the jury, it
advised the jurors that they were to rely solely on the evidence
presented in the trial and disregard anything else they knew
about the case, that anything they saw or heard outside of the
courtroom was not evidence, and that they were not to discuss
the case with anyone before deliberation.
[3] Although Sandoval claims that the trial court did not
give a curative instruction, it is clear that the court sufficiently
emphasized that the jurors were to set aside any information
they heard from sources outside of the courtroom. Absent evi-
dence to the contrary, it is presumed that a jury followed the
instructions given in arriving at its verdict. State v. Archie, 273
Neb. 612, 733 N.W.2d 513 (2007). As there is no evidence
that the jurors disregarded the court’s instructions, this assign-
ment of error is without merit. Because there is no prejudice,
Sandoval’s ineffective assistance of counsel claim is also with-
out merit.
324 	280 NEBRASkA REpoRTS

4. Jury
Sandoval alleges the trial court erred in impaneling an
anonymous jury and in failing to give a curative instruction.
He claims this action violated his Sixth Amendment right to
a public trial by an impartial jury. Sandoval’s trial counsel did
not object to this procedure at the time it was imposed, and
Sandoval argues that the failure to do so was ineffective assist-
ance of counsel.
(a) Standard of Review
[4] A district court’s decision regarding impaneling an anony-
mous jury is reviewed under the deferential abuse-of-discretion
standard. See U.S. v. Darden, 70 F.3d 1507 (8th Cir. 1995).
[5] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense. State v.
Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009).
(b) Analysis
In a preliminary hearing, the trial court announced that it
intended to identify jurors by number rather than by name. The
court ordered Sandoval’s counsel not to disclose the names of
the potential jurors to anyone, including Sandoval. After the
change of venue, the court reiterated that it would be using
numbers to identify jurors during individual voir dire. As each
juror entered the courtroom for voir dire, the court informed
the juror that the court and attorneys would be referring to the
juror by his or her juror number. No other acknowledgment
or explanation of the action was given. We conclude that the
court’s procedure does not amount to an abuse of discretion
under the circumstances of this case.
(i) Types of Anonymous Juries
[6] Although Sandoval characterizes the trial court’s actions
as impaneling an “anonymous” jury, there is a distinction that
must be noted. The term “anonymous jury” encompasses the
withholding of a broad spectrum of information. See, U.S. v.
Peoples, 250 F.3d 630 (8th Cir. 2001); U.S. v. Honken, 378 F.
STATE v. SANdovAL 	325
Cite as 280 Neb. 309

Supp. 2d 880 (N.d. Iowa 2004). Generally, an “anonymous
jury” describes a situation where juror identification informa-
tion is withheld from the public and the parties themselves.
See, State v. Brown, 280 kan. 65, 118 p.3d 1273 (2005); State
v. Tucker, 259 Wis. 2d 484, 657 N.W.2d 374 (2003).
The least secretive form of an anonymous jury is where only
the jurors’ names are withheld from the parties. Honken, supra.
This procedure may also be called an innominate jury or, if
jurors are referred to by number rather than name, a numbers
jury. Honken, supra; Brown, supra; Tucker, supra. For example,
in Tucker, counsel for both parties had the names of all jurors;
however, the court instructed the parties to refer to the jurors
by number in court.
In other cases, names and other identification information
are withheld, but limited biographical information is made
available. In U.S. v. Edwards, 303 F.3d 606 (5th Cir. 2002),
the court withheld the names and places of employment of
the jurors but released their ZIp codes and parishes. Going
a step further, the courts in U.S. v. Ochoa-Vasquez, 428 F.3d
1015 (11th Cir. 2005), and U.S. v. Sanchez, 74 F.3d 562 (5th
Cir. 1996), ordered that the names, addresses, and places of
employment of the jurors and their family members not be dis-
closed when it impaneled an anonymous jury. As other courts
have noted, “[a]nonymity has long been an important element
of our jury system. Jurors are randomly summoned from the
community at large to decide the single case before them and,
once done, to ‘inconspicuously fade back into the community.’”
U.S. v. Branch, 91 F.3d 699, 723 (5th Cir. 1996) (quoting U.S.
v. Scarfo, 850 F.2d 1015 (3d Cir. 1988)).
The propriety of withholding personal information or names
of potential jurors from the defendant is an issue of first
impression for this court; however, other federal and state
courts have addressed the issue. See, Ochoa-Vasquez, supra;
U.S. v. Darden, 70 F.3d 1507 (8th Cir. 1995); U.S. v. Krout,
66 F.3d 1420 (5th Cir. 1995); U.S. v. Thornton, 1 F.3d 149 (3d
Cir. 1993); U.S. v. Crockett, 979 F.2d 1204 (7th Cir. 1992);
U.S. v. Paccione, 949 F.2d 1183 (2d Cir. 1991); Brown, supra;
Tucker, supra. Generally, impaneling an anonymous jury is
a drastic measure that should only be undertaken in limited
326 	280 NEBRASkA REpoRTS

circumstances, see Ochoa-Vasquez, supra, and Krout, supra,
and there is a danger that the practice could prejudice jurors
against the defendants, see Darden, supra.
Juror anonymity is most disadvantageous to the defendant
during jury selection and with regard to the defendant’s pre-
sumption of innocence. U.S. v. Mansoori, 304 F.3d 635 (7th
Cir. 2002). during jury selection, a lack of information could
prevent the defense from making intelligent decisions regard-
ing peremptory strikes. Id. Additionally, there is a risk that
potential jurors will interpret the anonymity as an indication
that the court believes the defendant is dangerous. Id.
(ii) Two-Part Test
[7] To reduce the dangers associated with anonymous or
numbers juries, a court should not impanel such a jury unless
it (1) concludes that there is a strong reason to believe the jury
needs protection and (2) takes reasonable precautions to mini-
mize any prejudicial effects on the defendant and to ensure that
his or her fundamental rights are protected. Ochoa-Vasquez,
supra; Darden, supra; U.S. v. Edmond, 52 F.3d 1080 (d.C. Cir.
1995); U.S. v. Ross, 33 F.3d 1507 (11th Cir. 1994); Paccione,
supra. See, also, State v. Samonte, 83 Haw. 507, 928 p.2d 1
(1996); Major v. State, 873 N.E.2d 1120 (Ind. App. 2007);
State v. Brown, 280 kan. 65, 118 p.3d 1273 (2005); People v.
Williams, 241 Mich. App. 519, 616 N.W.2d 710 (2000); State
v. Ford, 539 N.W.2d 214 (Minn. 1995); State v. Ivy, 188 S.W.3d
132 (Tenn. 2006); State v. Ross, 174 p.3d 628 (Utah 2007);
State v. Tucker, 259 Wis. 2d 484, 657 N.W.2d 374 (2003).
Within the scope of this two-part test, the decision is left to
the discretion of the lower court and is subject to a review for
abuse of discretion. Darden, supra; Brown, supra.
The impaneling of an anonymous jury is a relatively recent
phenomenon, Tucker, supra, and, as noted earlier, is an issue
of first impression for this court. There is no statute or rule
requiring a trial court to make specific findings of fact regard-
ing its determination to use an anonymous or numbers jury. In
Tucker, the trial court informed counsel that its practice was
to use juror numbers rather than names in drug cases, and the
Supreme Court of Wisconsin determined that the trial court
STATE v. SANdovAL 	327
Cite as 280 Neb. 309

erred by failing to make an individualized determination that
the jury needed protection. Such a determination is needed for
a proper appellate review. Henceforth, if the court decides to
impanel an anonymous or numbers jury, we direct the court
to follow the two-part test set forth herein and to articulate its
specific findings of fact in support of such decision.
a. Compelling Reason to Believe Jury
Needs protection
The first prong is determining whether the jury needs protec-
tion. Courts regularly consider several factors, including (1) the
defendant’s involvement in organized crime; (2) the defendant’s
participation in a group with the capacity to harm jurors; (3) the
defendant’s past attempts to interfere with the judicial process
or witnesses; (4) the potential that, if convicted, the defendant
will suffer a lengthy incarceration and substantial monetary
penalties; and (5) extensive publicity that could enhance the
possibility that jurors’ names would become public and expose
them to intimidation and harassment. See, U.S. v. Ochoa-
Vasquez, 428 F.3d 1015 (11th Cir. 2005); Mansoori, supra;
U.S. v. Sanchez, 74 F.3d 562 (5th Cir. 1996); U.S. v. Krout, 66
F.3d 1420 (5th Cir. 1995); Edmond, supra; Ross, supra; U.S.
v. Paccione, 949 F.2d 1183 (2d Cir. 1991); Samonte, supra;
Major, supra; Ivy, supra; Tucker, supra.
Many cases in which the court utilized anonymous juries
were trials of individuals associated with gangs, Mafia fami-
lies, or organizations involved with drug dealing. See, U.S.
v. Mansoori, 304 F.3d 635 (7th Cir. 2002); U.S. v. Darden,
70 F.3d 1507 (8th Cir. 1995); Krout, supra; U.S. v. Thornton,
1 F.3d 149 (3d Cir. 1993); Paccione, supra. For example, in
Paccione, the defendants were charged with racketeering and
mail fraud in connection with operating an illegal landfill
and illegally transporting medical waste. Angelo paccione was
believed to be a member of the “Gambino Crime Family,”
had been associated with several “‘“mob-style” 	killings,’”
had a history of interfering with the judicial process, and had
threatened a witness. 949 F.2d at 1192. Furthermore, there was
significant publicity surrounding the trial. Taking into account
the defendants’ Mafia connections and the other surrounding
328 	280 NEBRASkA REpoRTS

circumstances, the court ordered that jurors’ names, addresses,
and places of employment not be disclosed. The U.S. Court
of Appeals for the Second Circuit determined that the district
court did not abuse its discretion in keeping the jurors’ identi-
fication information confidential. Id.
Involvement in organized crime, however, is not enough
to justify juror anonymity; “‘something more’” is required.
Mansoori, 304 F.3d at 651.
“‘[S]omething more’ can be a demonstrable history
or likelihood of obstruction of justice on the part of the
defendant or others acting on his behalf or a showing
that trial evidence will depict a pattern of violence by
the defendant [] and his associates such as would cause a
juror to reasonably fear for his own safety.”
Id. (emphasis supplied) (quoting U.S. v. Crockett, 979 F.2d
1204 (7th Cir. 1992)). See, also, U.S. v. Vario, 943 F.2d
236 (2d Cir. 1991). There must be some evidence indicat-
ing that intimidation of the jurors is likely, such as a his-
tory of threatening witnesses or otherwise obstructing justice.
Mansoori, supra.
Extensive publicity can also warrant the use of an anony-
mous jury. U.S. v. Edwards, 303 F.3d 606 (5th Cir. 2002);
U.S. v. Branch, 91 F.3d 699 (5th Cir. 1996). In Branch, the
defendants were members of the “Branch davidians” sect
and faced murder and weapons charges stemming from the
standoff between sect members and law enforcement at Mount
Carmel near Waco, Texas. 91 F.3d at 709. At trial, the district
court elected to withhold the jurors’ names and addresses due
to the extensive media attention that the case received. Noting
that the potential jurors had answered numerous questions
and were subject to voir dire regarding bias, the U.S. Court of
Appeals for the Fifth Circuit concluded that withholding the
names and addresses of the jurors did not violate the defend-
ants’ right to a trial before an impartial jury. Branch, supra.
See, also, Edwards, supra. In U.S. v. Darden, 70 F.3d 1507,
1533 (8th Cir. 1995), the Eighth Circuit concluded an anony-
mous jury was warranted because “[t]he case was so highly
publicized . . . that some defendants filed motions for a change
of venue.”
STATE v. SANdovAL 	329
Cite as 280 Neb. 309

The fact that a defendant faces a lengthy prison sentence
if convicted is also a consideration. The Edwards court noted
that one of the defendants faced a maximum of 375 years
in prison and a fine of over $7.5 million and found that the
district court did not abuse its discretion in impaneling an
anonymous jury.
Sandoval, vela, Galindo, and Rodriguez were members of
the Latin kings gang. For instance, Sandoval commanded a
riot while in prison and preyed on other inmates at the Lincoln
Correctional Center. However, Sandoval’s association with the
Latin kings is not enough to merit an anonymous jury without
satisfying the “something more” requirement.
The murders and attempted robbery of the bank in Norfolk
generated significant media attention in Nebraska. venue was
changed, the jurors were summoned from Hall County, and
the trial occurred in Hamilton County. Also, if convicted of
five counts of first degree murder, Sandoval faced life impris-
onment or the death penalty. This combination of factors is
sufficient evidence for the trial court to conclude that the jury
needed protection.
b. precautions to prevent prejudice
once a court decides to impanel an anonymous jury, it must
take reasonable precautions to ensure the defendant will not be
prejudiced. A defendant could be prejudiced during voir dire
if he or she is unable to conduct a meaningful examination of
the jury. See U.S. v. Edmond, 52 F.3d 1080 (d.C. Cir. 1995). A
defendant could also be prejudiced if jurors interpret anonym-
ity to mean that the defendant is guilty or dangerous. U.S. v.
Mansoori, 304 F.3d 635 (7th Cir. 2002).
i. Prejudice During Voir Dire
prejudice that a defendant may suffer from not having com-
plete juror biographical information during voir dire can be
overcome with extensive questioning. other courts have recog-
nized that a “‘defendant’s fundamental right to an unbiased jury
is adequately protected by the court’s conduct of “‘a voir dire
designed to uncover bias as to issues in the cases and as to the
defendant himself.’”’” U.S. v. Crockett, 979 F.2d 1204, 1216
330 	280 NEBRASkA REpoRTS

(7th Cir. 1992) (quoting U.S. v. Paccione, 949 F.2d 1183 (2d
Cir. 1991)). The concern of prejudice can also arise when par-
ties are making peremptory challenges. As the Mansoori court
noted: “Juror anonymity also deprives the defendant of infor-
mation that might help him to make appropriate challenges—in
particular, peremptory challenges—during jury selection.” 304
F.3d at 650.
Similar to the practice employed in this case, the court in
People v. Hanks, 276 Mich. App. 91, 740 N.W.2d 530 (2007),
identified the jurors by number, but still provided the parties
with all of the jurors’ biographical information and gave the
parties the opportunity to conduct extensive voir dire. The
Michigan Court of Appeals concluded that the jury in the case
was “anonymous only in a literal sense, so none of the dangers
of an ‘anonymous jury’ was implicated.” Id. at 94, 740 N.W.2d
at 533 (citing People v. Williams, 241 Mich. App. 519, 616
N.W.2d 710 (2000)). Accord U.S. v. Branch, 91 F.3d 699 (5th
Cir. 1996).
We conclude that the district court took reasonable precau-
tions to protect Sandoval from prejudice during voir dire. The
names of the potential jurors were withheld from Sandoval,
but not from his attorney. The trial court permitted extensive
individual voir dire of every juror. The scope of voir dire elimi-
nated any prejudice that might have resulted from the numbers
procedure used to impanel the jury.
ii. Prejudice to Presumption
of Innocence
[8] Sandoval claims that the impaneling of a numbers jury
violated his right to a presumption of innocence because the
trial court did not provide the jurors with an explanation for
their anonymity. Such an instruction might have been benefi-
cial, but the absence of such an instruction does not automati-
cally indicate prejudice. See Mansoori, supra. Rather, “the
empaneling of an anonymous jury and its potential impact
on the constitutionality of a trial must ‘receive close judicial
scrutiny and be evaluated in the light of reason, principle
and common sense.’” U.S. v. Vario, 943 F.2d 236, 239 (2d
Cir. 1991).
STATE v. SANdovAL 	331
Cite as 280 Neb. 309

The trial court did not draw attention to the fact that juror
numbers were used instead of names, and there is no indication
that the jurors understood the practice to be unusual. The trial
court did not make any announcement to the panel informing
them that their names or information would be confidential. As
voir dire was conducted individually, each potential juror was
informed by the court that he or she would be referred to by
his or her juror number. Aside from this initial notification to
the juror, the parties generally referred to the jurors as “Sir”
or “Ma’am.” Furthermore, once the court impaneled the jury,
it instructed the jurors that Sandoval was presumed innocent
and that the State must prove the charges beyond a reasonable
doubt before the jury could find Sandoval guilty. See, U.S. v.
Mansoori, 304 F.3d 635 (7th Cir. 2002); U.S. v. Crockett, 979
F.2d 1204 (7th Cir. 1992); Vario, supra. Every juror stated that
he or she could be fair and impartial and that he or she was
not biased or prejudiced. There is no evidence that Sandoval’s
presumption of innocence was compromised by the use of a
numbers jury.
Because there was evidence that the jury needed protection
and the district court took steps to prevent prejudice to Sandoval,
the court did not abuse its discretion by impaneling a numbers
jury and withholding the jurors’ names from Sandoval.
(iii) Ineffective Assistance of Counsel
[9] Sandoval also claims that he received ineffective assist-
ance of counsel due to his trial counsel’s failure to object to
the numbers jury and failure to request a curative instruction.
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that counsel’s
performance was deficient and that this deficient performance
actually prejudiced his or her defense. State v. Hudson, 277
Neb. 182, 761 N.W.2d 536 (2009). Counsel’s performance
is deficient if counsel did not perform at least as well as a
criminal lawyer with ordinary training and skill in the area. See
State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
As noted, the court did not abuse its discretion in impaneling
a numbers jury; therefore, we conclude that Sandoval’s failure
332 	280 NEBRASkA REpoRTS

to object to the trial court’s use of a numbers jury and failure
to request a curative instruction were not ineffective assistance
of counsel. This assignment of error is without merit.
5. permittinG JurorS to believe three -JudGe pAnel
determined A ppropriAteneSS of deAth SentenCe
Sandoval claims that the trial court erred in permitting the
jury to believe that the responsibility for determining the appro-
priateness of a death penalty belonged to the three-judge panel.
He also alleges that his trial counsel’s failure to correct this
error during the trial was ineffective assistance of counsel.
(a) Standard of Review
[10] voir dire is conducted under the supervision of the
court, and a great deal must, of necessity, be left to its sound
discretion. See State v. Galindo, 278 Neb. 599, 774 N.W.2d
190 (2009).
(b) Analysis
Sandoval argues that statements made and questions asked
of the 12 members of his jury minimized the jurors’ roles in
determining whether Sandoval should receive the death pen-
alty. The trial court advised each juror that “[u]nder Nebraska
law if a person is found guilty of first degree murder by a jury
the possible penalties that can be imposed by a three-judge
panel are either death or life in prison.” We find no error in
this statement. Similarly, during voir dire, Sandoval’s attor-
ney asked several of the jurors whether the fact that a panel
of judges made the ultimate decision about the death penalty
would make it easier for them to serve on the jury. Sandoval
likens these statements and questions to statements found to be
unconstitutional in Caldwell v. Mississippi, 472 U.S. 320, 105
S. Ct. 2633, 86 L. Ed. 2d 231 (1985). We disagree.
We recently addressed this issue in Galindo and explained
that unlike the sentencing procedure in Caldwell, the responsi-
bility for determining the appropriateness of a death sentence
does reside with the three-judge panel and not with the jury.
We decline to revisit this issue and find that this assignment of
error is without merit for the reasons discussed in Galindo.
STATE v. SANdovAL 	333
Cite as 280 Neb. 309

6. diSCloSure of AGGrAvAtinG
C irCumStAnCeS to Jury
Sandoval claims that the trial court erred in disclosing the
existence and/or contents of the aggravators to the jury before
the verdict was rendered on the issue of Sandoval’s guilt. He
argues that trial counsel was ineffective in failing to object.
(a) Standard of Review
[11] The extent to which the parties may examine jurors as
to their qualifications rests largely in the discretion of the trial
court, the exercise of which will not constitute reversible error
unless clearly abused, and where it appears that harmful preju-
dice resulted. See Galindo, supra.
(b) Analysis
during voir dire, the trial court advised potential jurors
that Sandoval was charged with first degree murder and that
death was a possible penalty that could be imposed by a three-
judge panel. The court did not identify the specific aggravators
alleged or provide any details of those aggravators. Sandoval
claims this advisement was in violation of Neb. Rev. Stat.
§ 29-1603(2)(c) (Reissue 2008) because it informed the jury of
the fact that the State was seeking the death penalty. Section
29-1603(2)(c) states that “[t]he existence or contents of a
notice of aggravation shall not be disclosed to the jury until
after the verdict is rendered in the trial of guilt.”
[12] However, Neb. Rev. Stat. § 29-2006(3) (Reissue 2008)
specifically provides that “in indictments for an offense the
punishment whereof is capital, [a juror’s statement] that his
opinions are such as to preclude him from finding the accused
guilty of an offense punishable with death” constitutes good
cause to challenge the juror. See, also, State v. Nesbitt, 264 Neb.
612, 650 N.W.2d 766 (2002); State v. Bradley, 236 Neb. 371,
461 N.W.2d 524 (1990). It is well established that § 29-2006(3)
allows courts to question jurors about their beliefs regarding
the death penalty. See State v. Bjorklund, 258 Neb. 432, 604
N.W.2d 169 (2000), abrogated on other grounds, State v. Mata,
275 Neb. 1, 745 N.W.2d 229 (2008).
[13] Under principles of statutory construction, the compo-
nents of a series or collection of statutes pertaining to a certain
334 	280 NEBRASkA REpoRTS

subject matter may be conjunctively considered and construed
to determine the intent of the Legislature so that different
provisions of the act are consistent, harmonious, and sensible.
State v. Hochstein and Anderson, 262 Neb. 311, 632 N.W.2d
273 (2001). Accordingly, §§ 29-2006 and 29-1603 operate in
conjunction with one another. Section 29-2006 ensures that
each member of the jury can perform his or her neutral fact-
finding function in determining guilt, and § 29-1603 provides
that the particular details of the case that are relevant only to
the aggravation portion of the trial do not unduly influence
jurors’ initial finding of guilt.
In this case, the trial court exercised its discretion in ques-
tioning potential jurors about whether their opinions of the
death penalty would prevent them from following instructions
and making a decision based on the evidence. Jurors who
stated they would not be able to set aside their feelings on the
death penalty were dismissed for cause. Although the jurors
were aware that death was a possible penalty if they convicted
Sandoval, the jurors were not given details of the aggravat-
ing circumstances or any other information that was preju-
dicial to the guilt phase of the trial. Courts cannot determine
whether a juror should be challenged for cause in accordance
with § 29-2006(3) without advising the juror of the possible
punishments and asking a juror his or her opinion on capital
punishment. We find that this assignment of error is without
merit. Because Sandoval was not prejudiced by the court’s
actions in questioning potential jurors about their opinions of
the death penalty, Sandoval’s claim that his attorney provided
ineffective assistance of counsel is also without merit.
7. exCeSSive endorSement of WitneSSeS
Sandoval claims that the trial court erred in permitting the
State to endorse over 500 witnesses and that his trial counsel
provided ineffective assistance of counsel for failing to object
to the number of witnesses.
(a) Standard of Review
[14] Whether to permit the names of additional witnesses
to be endorsed upon an information after the information has
STATE v. SANdovAL 	335
Cite as 280 Neb. 309

been filed is within the discretion of the trial court. State v.
Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
(b) Analysis
Nebraska law requires a prosecuting attorney to endorse the
names of known witnesses at the time the information is filed.
Neb. Rev. Stat. § 29-1602 (Reissue 2008). The purpose of this
requirement is to give the defendant notice as to witnesses who
may testify against him or her and give the defendant an oppor-
tunity to investigate them. State v. Cebuhar, 252 Neb. 796, 567
N.W.2d 129 (1997). The State filed several motions to endorse
witnesses after it filed the second amended information, and
Sandoval did not object to the endorsements. There is no evi-
dence that the trial court abused its discretion in permitting the
State’s endorsement of witnesses.
As for Sandoval’s claim that his trial counsel provided
ineffective assistance of counsel, he must show that his trial
counsel’s performance was deficient and that his trial counsel’s
performance prejudiced him and the outcome of the case. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
Here, Sandoval has not shown that he was prejudiced by
the number of witnesses endorsed by the State. The witnesses
were endorsed months ahead of trial, and there is no indication
in the record that his counsel was surprised or overwhelmed
by the witness list. There is nothing in the record that sug-
gests Sandoval’s counsel was unprepared for cross-examination
of any witness or that a more extensive investigation of the
witnesses would have helped Sandoval’s defense in any way.
Because there is no evidence that Sandoval suffered prejudice
by his trial counsel’s failure to object to the number of wit-
nesses endorsed by the State, this assignment of error is with-
out merit.
8. improper StAtementS by
proSeCutor And C ourt
Sandoval claims that the trial court erred in allowing pros-
ecutorial misconduct and that the court improperly commented
on the evidence.
336 	280 NEBRASkA REpoRTS

(a) Standard of Review
[15,16] Whether 	prosecutorial 	misconduct 	is 	prejudicial
depends largely on the facts of each case. State v. Robinson,
272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on other
grounds, State v. Thorpe, ante p. 11, 783 N.W.2d 749 (2010).
An appellate court reviews a motion for new trial on the basis
of prosecutorial misconduct for an abuse of discretion of the
trial court. Id.
[17] Trial courts are to refrain from commenting on evi-
dence or making remarks prejudicial to a litigant or calculated
to influence the minds of the jury. However, a defendant must
demonstrate that a trial court’s conduct, whether action or
inaction during the proceeding against the defendant, preju-
diced or otherwise adversely affected a substantial right of the
defendant. See State v. McHenry, 268 Neb. 219, 682 N.W.2d
212 (2004).
(b) Analysis
(i) Prosecutorial Misconduct
[18-20] Before it is necessary to grant a mistrial for pros-
ecutorial misconduct, the defendant must show that a sub-
stantial miscarriage of justice has actually occurred. State v.
Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007). Remarks
made by the prosecutor during final argument which do not
mislead or unduly influence the jury do not rise to the level
sufficient to require granting a mistrial. State v. Boppre, 234
Neb. 922, 453 N.W.2d 406 (1990). Furthermore, when a party
has knowledge during trial of irregularity or misconduct, the
party must timely assert his or her right to a mistrial. one may
not waive an error, gamble on a favorable result, and, upon
obtaining an unfavorable result, assert the previously waived
error. Robinson, supra.
[21,22] In order for error to be predicated upon misconduct
of counsel, it must be so flagrant that neither retraction nor
rebuke from the court can entirely destroy its influence. State
v. Valdez, 239 Neb. 453, 476 N.W.2d 814 (1991). Whether a
prosecutor’s inflammatory remarks are sufficiently prejudicial
to constitute error must be determined upon the facts of each
particular case. State v. Beeder, 270 Neb. 799, 707 N.W.2d 790
STATE v. SANdovAL 	337
Cite as 280 Neb. 309

(2006), disapproved on other grounds, State v. McCulloch, 274
Neb. 636, 742 N.W.2d 727 (2007). Therefore, Sandoval must
show that the prosecutor’s remarks at the guilt and aggrava-
tion phases of trial were sufficiently misleading, influential,
or prejudicial such that neither retraction nor rebuke from the
court could correct it and that a substantial miscarriage of jus-
tice actually occurred.
Sandoval identifies 27 statements made by the prosecu-
tor during the guilt and aggravation phases that he alleges
amounted to prosecutorial misconduct. The statements can be
categorized as follows: opinions of a witness’ character, opin-
ions regarding the veracity of witnesses, misstatements of fact,
veracity and guilt of Sandoval and veracity of his counsel, and
general improper statements. None of these statements neces-
sitate a mistrial.
The objectionable statements regarding a witness’ character
include occasions where the prosecutor referred to a witness or
witnesses as a “nice fellow,” “nice guy,” “very strong witness,”
“extremely bright fellow,” “wonderfully experienced officers,”
“very good officer,” “bright,” “a bunch of very good people,”
“good fellow,” “pro,” “doc,” “good guy,” and “good people.”
The prosecutor referenced the work done by law enforcement
officers as “good police work” and stated that an arresting offi-
cer “really did a hell of a good job.”
We considered the propriety of similar positive comments
regarding witnesses in State v. Ellis, 208 Neb. 379, 303
N.W.2d 741 (1981). We stated that “[t]he prosecutor’s lauda-
tory remarks about the quality of the investigational work done
by the Lincoln police department were quite irrelevant, but
hardly rise to the level of inflammatory remarks tending to
prejudice the jury.” Id. at 398, 303 N.W.2d at 753. Likewise,
in this case, the prosecutor’s reference to “wonderfully expe-
rienced officers” or “good police work” did not have any
effect on the jury’s perception of a witness or prejudice the
jury. These statements do not reach the threshold necessary
to establish a substantial miscarriage of justice as required by
this court.
Sandoval also objects to statements made by the prosecu-
tor that he claims improperly referred to the veracity of the
338 	280 NEBRASkA REpoRTS

witnesses, including statements that the witnesses were not
“mistaken about what they saw,” that a witness was a “terri-
bly honest woman” and “terribly sincere,” and that the jurors
“probably won’t see anybody more sincere in [their] entire
life.” These statements are similar to a statement the defendant
objected to in State v. Dandridge, 209 Neb. 885, 312 N.W.2d
286 (1981). The prosecutor in Dandridge reminded the jury
in his closing argument that “[the witness] was not immune
from prosecution for perjury.” 209 Neb. at 895, 312 N.W.2d
at 293. We concluded that a prosecuting attorney’s argument
based on the evidence and inferences drawn from the evidence
do not ordinarily constitute misconduct. Noting that the jury
could infer that the witness was telling the truth because she
was an eyewitness, we held that the trial court did not err in
refusing to grant a new trial on this ground. Dandridge, supra.
Likewise, the statements Sandoval complains of do not rise to
the level of prosecutorial misconduct such that he is entitled to
a new trial.
The next category of allegedly objectionable statements
involves instances where the prosecutor allegedly misstated
the facts during his closing argument of the guilt phase of the
trial. After each misstatement, Sandoval’s counsel objected
and the court corrected the misstatement, or the prosecutor
realized his misstatement and corrected himself. It is apparent
that the misstatements were not so misleading as to create a
substantial miscarriage of justice. Furthermore, in the neces-
sary instances, the trial court clearly instructed the jurors
to disregard the misstatements of fact or instructed them to
rely on their recollections of the evidence. Curative meas-
ures by the court can prevent prejudice. State v. Heathman,
224 Neb. 19, 395 N.W.2d 538 (1986). If any of these state-
ments were misleading, they were sufficiently corrected by
the admonitions of the court. one of the prosecutor’s alleged
misstatements involved stating that if koepke had been killed,
there would have been eight victims. However, the prosecutor
clarified in the next sentence that he was referring to killing
all of the witnesses, which would have resulted in eight vic-
tims. These statements do not rise to the level of prosecuto-
rial misconduct.
STATE v. SANdovAL 	339
Cite as 280 Neb. 309

Sandoval next claims that the prosecutor made statements
during the aggravation phase of the trial regarding Sandoval’s
veracity. Four of these statements related to the State’s evidence
that Sandoval participated in the murder of Travis Lundell,
which was offered in support of the first aggravating circum-
stance—that Sandoval had a history of violence. Because the
jury ultimately found that this aggravator did not exist, the
prosecutor’s statements were harmless.
Another 	statement 	referenced 	the 	fact 	that 	Sandoval,
vela, and Galindo had killed five times. This statement was
made in the aggravation phase of the trial, after the jury had
found Sandoval guilty of five counts of first degree murder.
Accordingly, this statement was also harmless. Another state-
ment Sandoval identifies as objectionable is a comment by the
prosecutor regarding whether witness koepke saw Sandoval
smiling during the robbery. Sandoval attempts to characterize
the prosecutor’s statements as a suggestion that Sandoval’s
counsel was untruthful; however, when read in context with the
surrounding statements, it is clear that the prosecutor was refer-
ring to the statements of various witnesses that they observed
Sandoval smiling during and after the killings. The statement
was simply a summary of the testimony that the jury heard
suggesting that Sandoval was smiling at different points dur-
ing the crimes and investigation. These statements were not
sufficiently misleading, influential, or prejudicial such that a
substantial miscarriage of justice actually occurred.
The final allegedly objectionable statements involve the
prosecutor’s invitation to the jurors, during deliberation, to
examine the weapons used in the crimes, noting that they would
not shoot each other because they knew it was wrong, and a
statement that a lot of people would like to have the opportu-
nity to be on Sandoval’s jury. Again, these statements are not
prejudicial to the extent that they necessitate a mistrial.
Sandoval’s counsel did not make a motion for mistrial based
on prosecutorial misconduct at the close of arguments and
is precluded from raising the issue at this point. See State v.
Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated
on other grounds, State v. Thorpe, ante p. 11, 783 N.W.2d
749 	(2010). 	Nonetheless, 	the 	allegations 	of 	prosecutorial
340 	280 NEBRASkA REpoRTS

misconduct are without merit. To the extent that Sandoval’s
trial counsel did not object to the prosecutor’s statements com-
plained of above and did not move for a mistrial, Sandoval
alleges ineffective assistance of counsel. An appellate court
reviews ineffective assistance of counsel claims under the
two-prong inquiry pursuant to Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v.
Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009). Given that the
complained-of statements do not constitute prosecutorial mis-
conduct, Sandoval did not establish that counsel was deficient
in failing to move for a mistrial based on those statements.
(ii) Improper Comment on Evidence
Sandoval also alleges that the trial court improperly com-
mented to the jury during the closing statements of both the
guilt and aggravation stages of the trial. Both of these state-
ments were included in the previous assignment of error. In
the first instance, the prosecutor reversed the names of two
of the victims during his closing argument at the guilt stage
of the trial. The court corrected the prosecutor’s statement by
clarifying that Sandoval did not shoot a fourth person inside
the bank. In the second instance, in response to an objection by
Sandoval’s attorney, the court clarified the evidence regarding
Galindo’s involvement in Lundell’s death. These remarks by
the court did not prejudice or otherwise adversely affect any of
Sandoval’s substantial rights as required for a mistrial. All of
these assignments of error are without merit.
9. E nmund -Tison
Sandoval alleges that the court erred in overruling his March
21, 2003, motion to quash. In the motion, Sandoval claimed
that the five first degree murder charges in the second amended
information were unconstitutionally vague because they alleged
premeditated murder, or felony murder in the alternative, and
did not require the jury to determine whether Sandoval was a
principal or an aider and abettor. The second amended infor-
mation alleged that Sandoval “did purposely and with delib-
erate and premeditated malice, or in the perpetration of or
attempt to perpetrate any robbery and/or kidnapping, did kill
[each victim].”
STATE v. SANdovAL 	341
Cite as 280 Neb. 309

Sandoval maintains that the separation of the theories was
necessary, because if the jury concluded that he was guilty
under the theory of felony murder, it would then be necessary
for the jury to determine if Sandoval was a major participant
in the murders of Bryant and Elwood—the two victims shot
by vela and Galindo—and exhibited a reckless indifference to
human life. Sandoval argues that the determination is necessary
pursuant to Enmund v. Florida, 458 U.S. 782, 797, 102 S. Ct.
3368, 73 L. Ed. 2d 1140 (1982), which held that a defendant
who “aids and abets a felony in the course of which a murder
is committed by others but who does not himself kill, attempt
to kill, or intend a killing take place or that lethal force will
be employed” cannot be sentenced to death pursuant to the 8th
and 14th Amendments.
The Court clarified that “major participation in the felony
committed, combined with reckless indifference to human life,
is sufficient to satisfy the Enmund culpability requirement” in
Tison v. Arizona, 481 U.S. 137, 158, 107 S. Ct. 1676, 95 L. Ed.
2d 127 (1987). We thoroughly addressed this issue with respect
to these crimes in the case of one of Sandoval’s accomplices in
State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009), and
conclude that the same analysis is applicable to Sandoval.
Furthermore, the evidence established that Sandoval planned
the bank robbery, recruited participants, obtained weapons,
and carried out the plan. Within a minute of entering the bank,
Sandoval fatally shot three of the five victims. All of the evi-
dence clearly establishes that Sandoval was a major partici-
pant in these murders and not an aider and abettor. Therefore,
Enmund-Tison considerations were entirely unnecessary and
these assignments of error are without merit.
10. removAl of C ounSel
Sandoval alleges that the trial court erred in overruling his
counsel’s motions to withdraw, failing to discharge his counsel,
and overruling his motion for substitute counsel.
(a) Standard of Review
[23] Whether a defendant’s lawyer’s representation violates
a defendant’s right to representation free from conflicts of
342 	280 NEBRASkA REpoRTS

interest is a mixed question of law and fact that an appellate
court reviews independently of the lower court’s decision. State
v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006).
(b) Analysis
The issue is whether the trial court should have replaced
Sandoval’s trial counsel at several points during the trial.
Madison County public defender Harry Moore was appointed
to represent Sandoval and did so at each stage of the case.
Sandoval 	identifies 	several 	potential 	conflicts 	of 	interest
regarding Moore’s handling of his case that were disclosed
during the course of the trial. The court carefully evaluated
each potential conflict as it arose and ultimately concluded that
none of the issues rendered Moore incompetent to represent
Sandoval. We agree.
[24-26] A conflict of interest which adversely affects a
lawyer’s performance violates the client’s Sixth Amendment
right to effective assistance of counsel. State v. Jackson, 275
Neb. 434, 747 N.W.2d 418 (2008). In Nebraska, this right
has been interpreted to entitle the accused to “the undivided
loyalty of an attorney, free from any conflict of interest.” See
State v. Marchese, 245 Neb. 975, 977, 515 N.W.2d 670, 672
(1994). A conflict of interest must be actual rather than specu-
lative or hypothetical before a conviction can be overturned
on the ground of ineffective assistance of counsel. See State v.
Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
(i) Acquaintance With Victims
Sandoval first claims conflict because his attorney conducted
business at the bank involved in the crime and therefore knew
two of the victims from his bank transactions. Moore disclosed
this acquaintance and stated that he did not know them person-
ally and that it would not affect his professional representation
of Sandoval. The trial court agreed and found that there was
no basis for mandatory withdrawal. We considered a similar
potential conflict of interest in State v. Hubbard, 267 Neb. 316,
673 N.W.2d 567 (2004). In Hubbard, the two victims were both
attorneys whom the defendant’s counsel knew professionally.
Counsel had also represented a person whom the defendant
STATE v. SANdovAL 	343
Cite as 280 Neb. 309

had testified against 12 years earlier. The attorney disclosed
both circumstances to the court, and the court did not allow
counsel to withdraw. We affirmed the decision, stating that the
defendant was not denied effective assistance of counsel when
the issues were properly brought before the court.
Likewise, Moore disclosed his association with the bank
and the fact that he was acquainted with the victims. He stated
that he did not believe the contact rose to a level of conflict of
interest. The court properly determined that these contacts did
not require mandatory withdrawal.
(ii) External Distractions
Several of the potential conflicts Sandoval identifies involved
an ongoing budget dispute between the public defender’s office
and the Madison County Board of Commissioners (Board).
Moore claimed that this conflict with the Board prevented him
from being able to retain necessary experts for the mitigation
portion of the trial; caused his deputy public defender, Todd
Lancaster, to resign when the Board threatened to reduce
Lancaster’s salary; and caused Moore to delay paying bills.
The court concluded that the political dispute with the Board
was outside the realm of Sandoval’s case and did not permit
Moore to withdraw. The court did, however, provide additional
time for Moore to prepare, and it appointed Lancaster as out-
side counsel.
Sandoval also moved for substitute counsel, claiming that
Moore’s ongoing conflict with the Board rose to a level of a
violation of his Sixth Amendment right to effective assistance
of counsel. Sandoval asserted he was entitled to two experi-
enced attorneys from two separate offices who worked exclu-
sively on his case. He also challenged Moore’s handling of
the case at earlier stages, claiming he was denied a psychiatric
evaluation, felt threatened by Moore when deciding whether
to consolidate burglary cases, and thought Moore should have
hired a doctor to refute testimony that being shot was a grue-
some way to die.
Later, Sandoval clarified that he did receive a psychological
evaluation and that the consolidation of cases issue worked out
the way he wanted. The trial court rejected Sandoval’s request,
344 	280 NEBRASkA REpoRTS

finding that Moore appropriately, professionally, and vigor-
ously represented Sandoval in all proceedings to date and that
there was no evidence indicating that Moore had not devoted
proper attention to Sandoval’s defense.
[27] Appointed 	counsel 	must 	remain 	with 	an 	indigent
accused unless one of three conditions is met: (1) The accused
knowingly, voluntarily, and intelligently waives the right to
counsel and chooses to proceed pro se; (2) appointed counsel
is incompetent, in which case new counsel is to be appointed;
or (3) the accused chooses to retain private counsel. See State
v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). At no
point did Sandoval request to retain private counsel. Sandoval
requested to proceed pro se on February 20, 2003, and was
permitted to do so; however, he elected to have Moore reap-
pointed a month later. He did not request to proceed pro se
after that time.
Therefore, Moore was required to remain with Sandoval
unless 	Moore 	was 	incompetent, 	that 	is, 	unless 	potential
conflicts of interest rendered him incompetent to represent
Sandoval. See id. Moore may have had problems with the
Board and its attitude toward the representation of indigent
defendants, but there is no indication that these problems
affected the quality of representation Moore provided. He
moved to continue the trial when he felt he needed more time
to prepare, and the trial court granted these motions. Moore
and the public defender’s office ceased taking cases for a
period of 3 months when Moore determined the caseload was
unmanageable. Moore testified that he ultimately received
assurances that all of his office’s bills would be paid. In fact,
all bills he presented to the Board were paid. Additionally, the
court appointed Lancaster to assist with the mitigation phase.
Moore’s ongoing problems with the Board did not render him
incompetent to represent Sandoval.
Regarding the issue of a capital defense attorney’s workload,
the Georgia Supreme Court specifically addressed the question
in Whatley v. Terry, 284 Ga. 555, 668 S.E.2d 651 (2008). The
defendant claimed that during the 2-year period his attorney was
representing him on capital murder charges, his attorney also
represented approximately 1,000 felony defendants, including
STATE v. SANdovAL 	345
Cite as 280 Neb. 309

four death penalty defendants. The court determined that the
attorney’s caseload was irrelevant in an evaluation of his repre-
sentation, stating that “it is the amount of time actually spent
by [the attorney] on [the defendant’s] case that matters, not the
number of other cases he might have had that potentially could
have taken his time.” Id. at 562, 668 S.E.2d at 657.
Similar to Whatley, Sandoval complains that he did not have
the undivided focus of Moore’s attention at all times. This
is not what is required. The question to consider is whether
Moore’s caseload at the public defender’s office, its financial
situation, and distractions with the Board had an adverse effect
on Moore’s representation of Sandoval. This is not a situa-
tion where prejudice would be difficult to prove. Neglect of
Sandoval’s case would be evident from the record. The defi-
ciencies Sandoval cites include Moore’s failure to hire a psy-
chiatrist early in the trial, disagreements regarding plea agree-
ments that were ultimately resolved to Sandoval’s satisfaction,
and failure to hire a pathologist to testify that the victims did
not suffer to the extent alleged by the State’s witness. The
record is replete with examples of how each of these decisions
was part of a valid trial strategy.
It should also be noted that the jury trial was held approxi-
mately 14 months after Sandoval was charged with the mur-
ders. The mitigation phase of the trial was held a full year after
the guilt and aggravation phase. It was continued many times,
a few times at the request of Moore. Counsel had ample time
to prepare. At no point does the record indicate that Moore
was not prepared to proceed. Based on these considerations,
Sandoval’s claim that the court should have dismissed Moore
for conflict of interest is without merit.
(iii) Jen Birmingham
Lastly, Sandoval asserts a conflict of interest regarding
attorney Jen Birmingham, who was contracted to handle mis-
demeanor cases at the public defender’s office after Lancaster’s
departure. Birmingham had served as cocounsel in Gabriel
Rodriguez’ case, which also arose from the bank shootings;
however, the trial court noted that she maintained a separate
office and was not involved in the public defender’s office’s
346 	280 NEBRASkA REpoRTS

representation of Sandoval. Further, there was evidence that
Moore had discussed the conflict of interest situation with
Sandoval. The court ultimately concluded that the contrac-
tual arrangement between the public defender’s office and
Birmingham was not prejudicial to Sandoval. There was no
evidence that the arrangement affected Moore’s performance in
the representation of Sandoval. The arrangement did not create
an actual conflict of interest.
In support of his argument, Sandoval cites United States
v. Agosto, 675 F.2d 965 (8th Cir. 1982), abrogated on other
grounds, Flanagan v. United States, 465 U.S. 259, 104 S. Ct.
1051, 79 L. Ed. 2d 288 (1984). The court in Agosto stated that
conflicts of interest involving the successive representation of
codefendants could cause problems, because an attorney might
be tempted to use confidential information to impeach the
former client, or because counsel may fail to rigorously cross-
examine for fear of misusing the confidential information.
Neither of these concerns is present in the case at bar.
We addressed a situation similar to Sandoval’s claim in State
v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007). In Harris,
the county attorney’s office hired an attorney who had an
office-sharing relationship with the defendant’s trial counsel.
The attorney did not have any confidential information regard-
ing the case, worked in the juvenile division of the county
attorney’s office, and had no direct contact with the criminal
division. We affirmed the postconviction court’s determination
that the attorney was effectively screened and that there was no
actual conflict of interest.
Similarly, Birmingham began taking cases from the public
defender’s office on a contractual basis nearly a year after the
conclusion of the guilt and aggravation portions of the trial.
Rodriguez was not a witness in any phase of Sandoval’s trial.
Furthermore, Birmingham maintained her own personal office
in Bloomfield, Nebraska, and worked on her cases at that
location. She had no contact, input, or function in the public
defender’s office’s representation of Sandoval.
There is no evidence that Birmingham’s arrangement with
the public defender’s office generated anything more than a
speculative or hypothetical conflict of interest or that it affected
STATE v. SANdovAL 	347
Cite as 280 Neb. 309

Moore’s performance in the representation of Sandoval. The
arrangement did not rise to the level of an actual conflict of
interest, as required by State v. Dunster, 262 Neb. 329, 631
N.W.2d 879 (2001).
11. limitinG inStruCtion AS to “ the murder”
in AGGrAvAtorS
Sandoval next claims the trial court erred during the aggra-
vation phase by failing to give the jury a limiting instruction
clarifying that “the murder” referred to the five murders inside
the bank and not the murder of Lundell. He claims that this
omission created a reasonable probability that the jury improp-
erly used the evidence presented with respect to Lundell’s
murder to find the existence of aggravators. This argument is
without merit.
[28,29] Jury instructions must be read as a whole, and if
they fairly present the law so that the jury could not be misled,
there is no prejudicial error. State v. Fischer, 272 Neb. 963,
726 N.W.2d 176 (2007). The proper inquiry is not whether the
instruction “‘could have’” been applied in an unconstitutional
manner, but whether there is a reasonable likelihood that the
jury applied it in that manner. See State v. Molina, 271 Neb.
488, 525, 713 N.W.2d 412, 444 (2006).
At the aggravation phase of Sandoval’s case, the jury com-
pleted a separate verdict form for each of the five victims. Each
verdict form identified the count and the victim’s name in bold
letters in the first sentence and instructed that for each of the
five counts of murder, the jury must determine whether any of
the five alleged aggravating circumstances were present. This
language clearly indicates to the jury that it was to determine
whether each aggravating circumstance applied to the victim
named at the top of the page.
The jury was also instructed that in order for it to find the
existence of the “substantial prior history of serious assaultive
or terrorizing criminal activity” aggravator, it must find that
the State proved beyond a reasonable doubt that Sandoval mur-
dered Lundell. For each of the five counts of murder, the jury
concluded that this aggravator did not exist. It is not logical to
assume that after finding that Sandoval did not murder Lundell,
348 	280 NEBRASkA REpoRTS

the jury then applied the remaining aggravators to Lundell’s
murder five times and found the aggravators to exist.
Sandoval also argues that statements made by the prosecu-
tor during closing arguments of the aggravation phase of the
trial were confusing as to which event “the murder” referred.
When reviewed in context with the surrounding statements, the
prosecutor clearly distinguishes between Lundell’s murder and
the murders inside the bank. The jury was not misled by these
statements as evidenced by its determination that Sandoval did
not kill Lundell.
Considering all of the jury instructions as a whole, they
clearly directed the jury to determine whether each aggravat-
ing circumstance was true or not true with respect to each
of the five victims of the bank murders. It is not reasonably
likely that the jury applied the aggravating circumstances to
Lundell’s murder.
Because the trial court clearly and properly instructed the
jury regarding the aggravators, Sandoval’s counsel did not
render ineffective assistance of counsel in failing to request
a clarifying instruction. This assignment of error is with-
out merit.
12. “eSpeCiAlly heinouS, AtroCiouS or C ruel”
(a) Constitutionality
Sandoval claims that the trial court erred in overruling his
objection to the “especially heinous, atrocious or cruel” jury
instruction because it was unconstitutional as applied to him
and that the court erred when it instructed the jury that it could
consider that the victims suffered “mental anguish.” We con-
clude the court erred in so instructing the jury. However, the
error was harmless.
(i) Standard of Review
[30] 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 circumstance 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
STATE v. SANdovAL 	349
Cite as 280 Neb. 309

district court for a new sentencing hearing. See, State v. Ryan,
248 Neb. 405, 534 N.W.2d 766 (1995) (Ryan II), abrogated
on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229
(2008); State v. Reeves, 239 Neb. 419, 476 N.W.2d 829 (1991)
(Reeves III), disapproved on other grounds, State v. Reeves,
258 Neb. 511, 604 N.W.2d 151 (2000) (Reeves IV).
In order for a state appellate court to affirm a death sentence
after the sentencer was instructed to consider an invalid factor,
the court must determine what the sentencer would have done
absent the factor. Stringer v. Black, 503 U.S. 222, 112 S. Ct.
1130, 117 L. Ed. 2d 367 (1992).
[31] Even a constitutional error which was harmless beyond
a reasonable doubt does not warrant the reversal of a criminal
conviction. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169
(2000), abrogated on other grounds, Mata, supra.
[32] Harmless error review in a capital sentencing case looks
to whether it is clear beyond a reasonable doubt that the sen-
tencing court’s decision would have been the same absent any
reliance on an invalid aggravator. See Ryan II.
(ii) Analysis
The jury instruction at issue stated the State must prove
beyond a reasonable doubt:
on the especially heinous, atrocious or cruel prong:
1. The defendant inflicted serious mental anguish or
serious 	physical 	abuse—meaning 	torture, 	sadism, 	or
sexual abuse—on the victim before the victim’s death.
Mental anguish includes a victim’s uncertainty as to his
or her ultimate fate.
or
on the exceptional depravity prong:
1. The defendant apparently relished the murder.
When this aggravating circumstance is alleged, it may
be based on either proof on the especially heinous, atro-
cious or cruel prong elements, or proof on the excep-
tional depravity prong elements. It matters not if some
jurors believe that this aggravating circumstance has been
proven based on proof that the defendant inflicted serious
mental anguish or serious physical abuse, meaning torture,
350 	280 NEBRASkA REpoRTS

sadism or sexual abuse on the victim before the victim’s
death; mental anguish includes a victim’s uncertainty as
to his or her ultimate fate and some jurors believe that this
aggravating circumstance has been proven based on proof
that the defendant apparently relished the murder. Each
juror need only be convinced beyond a reasonable doubt
that this aggravating circumstance has been proven in one
of the above ways as defined in these instructions.
This instruction is identical to pattern jury instruction NJI2d
Crim. 10.4, adopted by Nebraska after the Legislature enacted
§ 29-2520 (Reissue 2008) in 2002.
Aggravator (1)(d) is divided into two prongs. See, State v.
Palmer, 257 Neb. 702, 600 N.W.2d 756 (1999); State v. Moore,
250 Neb. 805, 553 N.W.2d 120 (1996) (Moore I), disapproved
on other grounds, Reeves IV; Ryan II; State v. Joubert, 224
Neb. 411, 399 N.W.2d 237 (1986). The first prong is whether
the murder was heinous, atrocious, or cruel, and the second
prong is whether the murder manifested exceptional depravity.
during the aggravation phase in the case at bar, the trial court
instructed the jury as to both prongs of this aggravator and
included mental anguish as part of the first prong. Sandoval
objected to this instruction on the basis that it was unconstitu-
tional because the aggravating circumstance was not suitably
directed, limited, and defined in a constitutional fashion, as
required by Ryan II.
a. Mental Anguish
[33] “Mental anguish,” although included in Nebraska’s pat-
tern jury instructions, defined as a victim’s uncertainty as to his
or her ultimate fate, does not have any basis in Nebraska law.
Neither the courts nor the Legislature has used the term “mental
anguish” as a part of Neb. Rev. Stat. § 29-2523(1)(d) (Reissue
2008). Accordingly, we disapprove the “mental anguish” por-
tion of the instruction. However, because we conclude that the
error was harmless, a new sentencing is not necessary.
[34] A jury instruction should correctly state the Nebraska
law applicable to the issues in the case. Neb. Ct. R. § 6-801.
Beginning with State v. Rust, 197 Neb. 528, 250 N.W.2d
867 (1977), we have held that “especially heinous, atrocious,
STATE v. SANdovAL 	351
Cite as 280 Neb. 309

or cruel” includes murders involving torture, sadism, sexual
abuse, or the imposition of extreme suffering, or where the
murder was preceded by acts “performed for the satisfac-
tion of inflicting either mental or physical pain or that pain
existed for any prolonged period of time.” State v. Hunt, 220
Neb. 707, 725, 371 N.W.2d 708, 721 (1985), disapproved on
other grounds, State v. Palmer, 224 Neb. 282, 399 N.W.2d 706
(1986). “‘[H]einous, atrocious, or cruel’” was to be directed to
the “conscienceless or pitiless crime which is unnecessarily tor-
turous to the victim.” State v. Simants, 197 Neb. 549, 566, 250
N.W.2d 881, 891 (1977), disapproved on other grounds, State
v. Reeves, 234 Neb. 711, 453 N.W.2d 359 (1990) (Reeves II).
In the three decades since Rust, this court has not strayed
from this definition. See, State v. Gales, 269 Neb. 443, 481,
694 N.W.2d 124, 159 (2005) (Gales II) (murder was “espe-
cially heinous, atrocious, or cruel” based on evidence that
defendant sexually assaulted his victim before killing her);
State v. Victor, 235 Neb. 770, 778, 457 N.W.2d 431, 438
(1990) (murder was “‘especially heinous, atrocious and cruel’”
due to imposition of extreme suffering when evidence was that
defendant had severely beaten and stabbed elderly victim to
death while she struggled and screamed); State v. Ryan, 233
Neb. 74, 142, 444 N.W.2d 610, 652 (1989) (Ryan I) (“‘espe-
cially heinous, atrocious, or cruel’” aggravator applied when
facts showed torture, sadism, sexual abuse, and infliction of
extreme suffering for prolonged period of time); State v. Otey,
205 Neb. 90, 96, 287 N.W.2d 36, 41 (1979) (murder was
“‘especially heinous, atrocious, [or] cruel’” when defendant
sexually assaulted victim).
Before the U.S. Supreme Court issued Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), Nebraska
did not have pattern jury instructions for aggravating circum-
stances because the court, rather than juries, determined the
existence of aggravators. pattern jury instructions were drafted
in 2002 when the Nebraska Legislature enacted L.B. 1, which
entitled defendants convicted of capital crimes to a jury deter-
mination of the aggravating circumstances.
In addition to the traditional definition of “especially hei-
nous, atrocious, or cruel,” pattern jury instruction NJI2d Crim.
352 	280 NEBRASkA REpoRTS

10.4 added “mental anguish” to the first prong of aggravator
(1)(d). The comment to this instruction cites Walton v. Arizona,
497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990),
overruled on other grounds, Ring, supra, as the source of
this language. However, neither the Nebraska Legislature nor
Nebraska courts have adopted “mental anguish” as a part of
aggravator (1)(d). Although we acknowledged the addition of
“mental anguish” to the definition of the aggravator in Gales II,
its inclusion was not raised in that appeal and we did not con-
sider its propriety. Now, given the opportunity to review the
issue, we conclude that the inclusion of “mental anguish” was
improper. Mental anguish is not a component of aggravator
(1)(d), and it was error to include it in the instruction.
[35,36] Even if the inclusion of “mental anguish” was sup-
ported by Nebraska law, we conclude that mental anguish
defined as “a victim’s uncertainty as to his or her ultimate
fate” is not sufficiently narrow such that it would apply only
to a subclass of defendants. See Moore I (reconsidered State
v. Moore, 273 Neb. 495, 730 N.W.2d 563 (2007)). Whenever
a State seeks to impose the death penalty, the discretion of
the sentencing body “‘must be suitably directed and limited
so as to minimize the risk of wholly arbitrary and capricious
action.’” Ryan II, 248 Neb. at 445, 534 N.W.2d at 792 (quot-
ing Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.
2d 859 (1976)). The sentencing authority’s discretion must be
“‘guided and channeled by requiring examination of specific
factors that argue in favor of or against imposition of the death
penalty.’” See Ryan II, 248 Neb. at 445, 534 N.W.2d at 792
(quoting Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L.
Ed. 2d 913 (1976)).
Although the U.S. Supreme Court upheld “‘a victim’s uncer-
tainty as to his [or her] ultimate fate’” as a constitutional defi-
nition in Walton, 497 U.S. at 646, most, if not all, victims who
are conscious before their death would suffer mental anguish as
to the uncertainty of their ultimate fate. All victims threatened
by a deadly weapon would have uncertainty as to their ultimate
fate. Accordingly, we conclude that “a victim’s uncertainty
as to his or her ultimate fate” is not a meaningful distinction
between cases that warrant the death penalty and those that do
STATE v. SANdovAL 	353
Cite as 280 Neb. 309

not. Mental anguish as defined is an improper ground for find-
ing the existence of aggravator (1)(d).
b. Exceptional depravity
[37] The second prong of aggravator (1)(d) focuses on
Sandoval’s state of mind and considers whether he “manifested
exceptional depravity by ordinary standards of morality and
intelligence.” “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. See
Moore I. This court has identified specific narrowing factors
that support a finding of exceptional depravity. These five fac-
tors are: (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. State v. Palmer, 257 Neb. 702,
600 N.W.2d 756 (1999); Moore I; Ryan II. In Sandoval’s case,
the jury was instructed on only the first factor—that Sandoval
apparently relished the murder. The U.S. Supreme Court rec-
ognized this factor as sufficiently narrow in Walton v. Arizona,
497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), and
Lewis v. Jeffers, 497 U.S. 764, 110 S. Ct. 3092, 111 L. Ed. 2d
606 (1990).
In support of this factor, the State presented evidence that
Sandoval was smiling during the murders and after being
apprehended. Witness koepke, who unknowingly interrupted
the robbery and murders in progress, testified that Sandoval
smiled at her from behind the counter as he stood amid the
bodies of his victims. Later that day, when an investigator
photographed Sandoval as he was booked into jail for the mur-
ders, Sandoval smiled broadly for the photograph. We question
whether this evidence is sufficient to support the jury’s finding
of this aggravator; however, we do not need to further consider
the issue, because we conclude that the jury’s finding of aggra-
vator (1)(d) is harmless error.
c. Harmless Error Analysis
In the case at bar, the jury found three valid aggravators in
addition to aggravator (1)(d). Therefore, Sandoval’s case would
354 	280 NEBRASkA REpoRTS

have proceeded to the three-judge panel for consideration of
the death penalty regardless of whether the jury had been prop-
erly instructed as to aggravator (1)(d). The question is whether
the three-judge panel would have imposed the death penalty
absent the consideration of aggravator (1)(d). See, Stringer
v. Black, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367
(1992); Ryan II.
We explained the procedure for handling errors in the
sentencing phase of capital cases in Reeves III. Because
Reeves III controls this case, we set forth its history below.
All of the Reeves opinions were issued before Ring v. Arizona,
536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002);
therefore, a three-judge panel determined the existence of
aggravating and mitigating factors and then weighed them to
determine a sentence. Although the task of finding aggravating
circumstances now lies with a jury, our procedure for review
remains the same.
In 1981, a jury convicted Randolph k. Reeves of two counts
of felony murder in the commission or attempted commission
of a first degree sexual assault for the rape and stabbing death
of one woman and the stabbing death of a second woman. State
v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984) (Reeves I).
With respect to both murders, a three-judge panel found two
statutory aggravators to exist: aggravator (1)(d), the murder
was especially heinous, atrocious, cruel, or manifested excep-
tional depravity, and aggravator (1)(e), at the time the murder
was committed, the offender also committed another murder.
The panel found a third aggravator with respect to the second
victim—(1)(b), that the murder was committed in an apparent
effort to conceal the commission of a crime or to conceal the
identity of the perpetrator of the crime. despite evidence that
Reeves had consumed a large quantity of alcohol and ingested
peyote before the murders, the panel determined that no miti-
gating circumstances existed.
on appeal, we concluded in Reeves I that the panel improp-
erly considered aggravator (1)(d) with respect to the second
victim, as her death appeared to have occurred swiftly when
she walked in on Reeves’ attack on the first victim. We also
found that the panel failed to consider the statutory mitigator
STATE v. SANdovAL 	355
Cite as 280 Neb. 309

of intoxication. Nonetheless, we determined that Reeves’ sen-
tences of death were not disproportionate to the sentences in
previous first degree murder cases and affirmed the sentences
of the district court.
Reeves sought postconviction relief, and we affirmed the
district court’s order dismissing the motion in Reeves II.
Reeves petitioned for certiorari, which the U.S. Supreme Court
granted. The Court vacated the decision and remanded the
cause for reconsideration in light of Clemons v. Mississippi,
494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990),
which addressed appellate review of death sentences based in
part on an invalid or improperly defined aggravator. Reeves
v. Nebraska, 498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d
409 (1990).
on remand, in Reeves III, we reconsidered Reeves’ post-
conviction motion. Citing Clemons, we noted that in a weigh-
ing state, when an appellate court invalidates one or more of
the aggravating circumstances, or finds as a matter of law
that any mitigating circumstance exists that was not consid-
ered by the sentencing panel in its balancing, the appellate
court may, consistent with the U.S. Constitution, reweigh the
remaining circumstances or conduct a harmless error review.
Reeves III.
We then outlined the process for review for Nebraska appel-
late courts in death penalty cases where there has been an
error concerning the trial court’s finding of aggravating and/or
mitigating circumstances. First, we determine if the sentencing
panel’s actions constituted an error harmless beyond a reason-
able doubt. Id. If the error is harmless, we must affirm the
sentence. See Ryan II. If the error is not harmless, we must
vacate the sentence and remand the cause for resentencing.
Reeves III.
Evaluating the sentencing panel’s failure to consider the
mitigator of intoxication, we determined that the error was
not harmless beyond a reasonable doubt and concluded that
we must independently reweigh all the aggravators and miti-
gators to determine if the death penalty was an appropriate
sentence. We made findings as to the existence of aggravating
circumstances, concluded that the aggravating circumstances
356 	280 NEBRASkA REpoRTS

outweighed any statutory or nonstatutory mitigators in the case,
and affirmed Reeves’ sentences of death. Id.
After our decision in Reeves III, Reeves sought a writ of
habeas corpus in the U.S. district Court for the district of
Nebraska, challenging this court’s action in resentencing him.
Reeves v. Hopkins, 871 F. Supp. 1182 (d. Neb. 1994). The
federal district court granted relief on the ground that Nebraska
law did not authorize appellate reweighing and resentencing. It
noted that the reweighing procedure
arbitrarily deprived Reeves of two important state-created
rights: (a) the right to have a sentencing panel includ-
ing his trial judge make the initial determination of the
appropriateness of the death penalty by properly applying
aggravating and mitigating factors and thereafter impose
the death sentence, and (b) the right to have the decision
of the sentencing panel “reviewed” but not supplanted by
appellate resentencing.
Id. at 1194. on appeal, the U.S. Court of Appeals for the Eighth
Circuit determined the federal district court exceeded its author-
ity when it reviewed our interpretation of Nebraska state law.
Reeves v. Hopkins, 76 F.3d 1424 (8th Cir. 1996). The Eighth
Circuit reversed, and remanded. The federal district court again
granted Reeves relief, Reeves v. Hopkins, 928 F. Supp. 941 (d.
Neb. 1996), and the Eighth Circuit again reversed the ruling,
but granted Reeves’ petition on other grounds related to jury
instructions, Reeves v. Hopkins, 102 F.3d 977 (8th Cir. 1996).
The U.S. Supreme Court granted certiorari and reversed the
decision of the Eighth Circuit on the jury instruction issue. See
Hopkins v. Reeves, 521 U.S. 1151, 118 S. Ct. 30, 138 L. Ed. 2d
1059 (1997), and Hopkins v. Reeves, 524 U.S. 88, 118 S. Ct.
1895, 141 L. Ed. 2d 76 (1998).
Following his run in federal court, Reeves filed a second
motion for postconviction relief in Lancaster County chal-
lenging this court’s reweighing and resentencing in Reeves III.
The district court denied Reeves’ request, and he appealed.
Reeves IV. Although Clemons v. Mississippi, 494 U.S. 738, 110
S. Ct. 1441, 108 L. Ed. 2d 725 (1990), found it constitution-
ally permissible for a state appellate court to reweigh aggravat-
ing and mitigating circumstances or undertake a harmless error
STATE v. SANdovAL 	357
Cite as 280 Neb. 309

analysis when an aggravating circumstance had been found
invalid, there must be authority under state law for an appel-
late court to do so. Reeves IV. We concluded that in Reeves III,
this court had denied Reeves his right to due process, because
we lacked statutory authority to resentence Reeves and acted
as an unreviewable sentencing panel in violation of Nebraska
law after finding the error was not harmless. Reeves IV. We
reversed the order of the district court, vacated the death sen-
tences for both counts, and remanded the cause to the trial
court for resentencing in accordance with Neb. Rev. Stat.
§§ 29-2519 to 29-2546 (Reissue 1989). Reeves IV.
In light of this procedure, we must first review Sandoval’s
case for harmless error. If the error is harmless beyond a reason-
able doubt, we affirm the sentence of the district court. Ryan II;
Reeves III. If the error is not harmless, we cannot reweigh the
aggravators and mitigators and resentence Sandoval; rather, we
must remand the matter to the district court for resentencing.
Reeves IV; Ryan II.
Harmless error review in a capital sentencing case considers
whether it is clear beyond a reasonable doubt that the sentenc-
ing court’s decision would have been the same absent any reli-
ance on the invalid aggravator. Ryan II. See, also, Stringer v.
Black, 503 U.S. 222, 230-31, 112 S. Ct. 1130, 117 L. Ed. 2d
367 (1992) (“[o]therwise, the defendant is deprived of the pre-
cision that individualized consideration demands”). Therefore,
in reviewing Sandoval’s sentence for harmless error, we con-
sider whether, beyond a reasonable doubt, the death penalty
would have been imposed absent the sentencing panel’s consid-
eration of aggravator (1)(d).
[38] Section 29-2522 (Reissue 2008) instructs the three-
judge sentencing panel to consider (1) whether the aggravat-
ing circumstances as determined to exist justify imposition of
a sentence of death; (2) whether sufficient mitigating circum-
stances exist which approach or exceed the weight given to
the aggravating circumstances; or (3) whether the sentence of
death is excessive or disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant.
The balancing of aggravating circumstances against mitigat-
ing circumstances in deciding whether to impose the death
358 	280 NEBRASkA REpoRTS

penalty is not merely a matter of number counting, but, rather,
requires a careful weighing and examination of the various
factors. See State v. Dunster, 262 Neb. 329, 631 N.W.2d
879 (2001).
In its sentencing order, the three-judge sentencing panel
recounted the facts of the case. Sandoval, vela, and Galindo
entered 	the 	bank 	located 	in 	Norfolk 	on 	the 	morning 	of
September 26, 2002, for the purpose of committing a robbery.
All three carried loaded 9-mm semiautomatic handguns.
Upon entering the bank, Galindo turned to the left and
entered the office occupied by Elwood, Staehr, and Cahoy. vela
turned to the right and entered the office occupied by Bryant.
Sandoval approached the teller counter at the center of the
bank and demanded money. Sun was working behind the teller
counter, Mausbach was working at the drive-through window
located behind the teller counter, and Tuttle was transacting
business in front of the teller counter.
Elwood, Sun, Bryant, Mausbach, and Tuttle were shot and
fatally wounded nearly simultaneously. Sandoval shot Sun in
the chin and in the chest, then shot Tuttle in the head, jumped
across the counter, and shot Mausbach in the head. vela shot
Bryant in the leg and then in the head. Galindo fired three shots
into Elwood. There is no evidence of any resistance by any of
the victims prior to being shot. After the shootings, koepke
entered the bank and saw Sandoval behind the teller counter.
Galindo fired at least two shots at koepke through a window
as she fled the building, injuring her with the shattering glass.
Another of Galindo’s bullets impacted the drive-through win-
dow of the fast-food restaurant across the street. Sandoval,
vela, and Galindo then fled the bank. In less than a minute,
no money had been taken, but five victims were either dead
or dying.
The sentencing court also noted that the jury determined
that four aggravating circumstances existed with regard to
each murder: (1) The murder was committed in an effort to
conceal the commission of a crime, or to conceal the identity
of the perpetrator of such crime; (2) the murder was especially
heinous, atrocious, cruel, or manifested exceptional depravity
by ordinary standards of morality and intelligence; (3) at the
STATE v. SANdovAL 	359
Cite as 280 Neb. 309

time the murder was committed, the offender also committed
another murder; and (4) the offender knowingly created a great
risk of death to at least several persons. Regarding the four
aggravators, the sentencing panel stated that “[e]ach factor is
significant and substantial.”
pursuant to § 29-2522, the sentencing panel next consid-
ered whether sufficient mitigating circumstances existed which
approached or exceeded the weight given to the aggravating
circumstances. The seven statutory mitigating circumstances,
as laid out in § 29-2523(2) (Reissue 2008) are as follows: (a)
The offender has no significant history of prior criminal activ-
ity; (b) the offender acted under unusual pressures or influ-
ences or under the domination of another person; (c) the crime
was committed while the offender was under the influence of
extreme mental or emotional disturbance; (d) the age of the
defendant at the time of the crime; (e) the offender was an
accomplice in the crime committed by another person and his
or her participation was relatively minor; (f) the victim was a
participant in the defendant’s conduct or consented to the act;
or (g) at the time of the crime, the capacity of the defendant to
appreciate the wrongfulness of his or her conduct or to conform
his or her conduct to the requirements of law was impaired as a
result of mental illness, mental defect, or intoxication.
The panel determined that none of the statutory mitigators
existed. Rather, the panel noted that in addition to the murders,
Sandoval had a substantial criminal record dating back to when
he was a juvenile. In considering mitigator (2)(g), the panel
separated it into two parts—whether Sandoval’s capacity to
appreciate wrongfulness was impaired due to mental illness or
mental defect and whether his capacity to appreciate wrongful-
ness was impaired by intoxication.
Although a psychiatric diagnostic evaluation of Sandoval
indicated that he had a personality disorder with antisocial
and schizotypal traits, the panel found that there was no evi-
dence that this diagnosis indicated a mental disorder affecting
Sandoval’s volitional abilities in any way. In fact, the evidence
showed that Sandoval had been planning the bank robbery
for at least a month. He purchased and stole the guns which
were used for the robbery, and he met with vela and Galindo
360 	280 NEBRASkA REpoRTS

to go over the plan. Sandoval testified that he knew that if he
was apprehended, he would spend time in the penitentiary.
There was no evidence that Sandoval’s diagnosis in any way
diminished his capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of
the law.
The panel next considered Sandoval’s claim that he was
intoxicated due to his alleged use of LSd before the mur-
ders. Sandoval reported that he ingested approximately four
“normal” doses of LSd in the morning before the murders.
He testified that the LSd caused hallucinations, including fire
appearing in the mirror at his apartment, bright colors from
the movement of his hand, rain that turned to blood when it
hit his skin, and flashes of lights and shadows as he entered
the bank. Sandoval claimed that the black shadows in the bank
were saying bad things and “mouthing off” to him and that he
saw a blue “Smurf” with glasses behind the counter, whom he
shot. Sandoval claims he next remembers being in a car or a
house, falling asleep, and being arrested in o’Neill. An expert
in the area of substance abuse evaluation testified that based
on his review of documents and his interview with Sandoval,
Sandoval was intoxicated at the time of the murders due to his
ingestion of LSd.
However, the panel noted that there was extensive convinc-
ing evidence that Sandoval did not use LSd on the day of
the murders. Sandoval did not have any prior history of using
drugs other than marijuana, the street gang he belonged to pro-
hibited the use of hard drugs, he repeatedly denied using any
illicit drugs, and the police investigator did not find drugs or
drug paraphernalia in his search of Sandoval’s bedroom after
the murders.
His actions also refute claims that he was intoxicated at
the time of the murders. on the day of the murders, Sandoval
prepared for the attempted robbery with a backpack full of
extra ammunition, plastic bags, smoke bombs, and spray
paint. The bank’s surveillance video showed Sandoval, vela,
and Galindo calmly entering the bank. It shows Sandoval
directly approaching the teller counter, motioning Mausbach
to come closer to him, and easily jumping over the counter.
STATE v. SANdovAL 	361
Cite as 280 Neb. 309

The panel noted that Sandoval appears calm in the video; he
does not wave his gun in a wild manner. The shootings were
very fast paced, and he precisely shot each of his victims in
the head. After the murders, Sandoval appeared to calmly hide
his gun in the waistband of his pants and walk out of the bank
to escape.
The officers who came in contact with Sandoval after he
was apprehended indicated that he was calm and cooperative.
An expert in drug intoxication recognition gave an opinion
that based on all of the facts, he did not believe Sandoval
was intoxicated from the ingestion of LSd at the time of the
murders. Sandoval did not show signs of withdrawal after
he was arrested, and the deputy who booked Sandoval into
the Madison County jail following his arrest on the day of
the murders also indicated that Sandoval denied using drugs.
Accordingly, the sentencing panel concluded that there was
nothing in Sandoval’s behavior supporting the conclusion that
at the time of the crimes, he was intoxicated by the ingestion
of LSd and lacked the ability to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements of
the law. The panel determined that the evidence did not support
the existence of the mitigating circumstance of intoxication by
drug use and concluded that it did not apply.
despite its finding that none of the statutory mitigating cir-
cumstances existed, the sentencing panel concluded that one
nonstatutory mitigating factor existed—that Sandoval suffered
from a bad childhood resulting from being raised in a dys-
functional family setting. However, the sentencing panel noted
that despite his family problems, it was clear that Sandoval
had at least an average, if not above average, IQ; had what
was described as a charismatic personality; and had leader-
ship abilities. The panel stated that it gave this nonstatutory
mitigating factor little weight in determining the sentences to
be imposed.
It is of particular importance that § 29-2522 instructs the
sentencing panel to consider whether sufficient mitigating cir-
cumstances exist which approach or exceed the weight given
to the aggravating circumstances. In Reeves III, 239 Neb. at
428, 476 N.W.2d at 837, we could not conclude that the district
362 	280 NEBRASkA REpoRTS

court’s error of failing to consider the statutory mitigator of
intoxication was harmless, because “[w]e [did] not know what
weight the judges may have given this circumstance if they had
found it to exist.” Had it considered the mitigator of intoxica-
tion, the Reeves III court could have determined that the weight
of that mitigator approached or exceeded the weight the court
gave to the aggravators. Therefore, failure to consider the miti-
gator was not harmless error.
Unlike Reeves III, we know the weight the sentencing
panel attributed to the aggravators and mitigators. It stated
that each aggravator was “significant and substantial” and
that “there are no statutory mitigating circumstances to weigh
against the four aggravating circumstances and only one non-
statutory mitigating circumstance to which the panel gives
little weight.”
Absent consideration of aggravator (1)(d) with respect to
each of the five counts of murder, the sentencing panel
would have been left with three “significant and substantial”
aggravators establishing that Sandoval killed five victims to
conceal his identity in the commission of a carefully planned
bank robbery and, in doing so, placed three other people at
great risk of death. The panel would have weighed these three
“significant and substantial” aggravators against no statutory
mitigators and only one nonstatutory mitigator—that Sandoval
suffered from a bad childhood—to which the panel gave
little weight.
knowing that the sentencing panel gave little weight to the
lone nonstatutory mitigator it weighed against the aggravators,
we are convinced beyond a reasonable doubt that the sentenc-
ing panel would have imposed sentences of death even in
the absence of a finding that the murders were exceptionally
heinous, atrocious, cruel, or manifested exceptional depravity.
Accordingly, the consideration of aggravator (1)(d) was harm-
less error. It would be futile to vacate the sentences of death
and require the sentencing panel to reweigh three “significant
and substantial” aggravators against the lone nonstatutory miti-
gator, to which the panel gave little weight. Because the error
is harmless, it is not necessary to vacate the sentences of death
and remand the cause, as was required in Reeves IV.
STATE v. SANdovAL 	363
Cite as 280 Neb. 309

We conclude beyond a reasonable doubt that the sen-
tencing panel would have imposed five sentences of death
even in the absence of consideration of aggravator (1)(d).
Although Sandoval’s argument had merit, we conclude the
error was harmless.
(b) “Apparently Relished”
Sandoval next claims that the use of the word “apparently”
in the “exceptional depravity” instruction during the aggrava-
tion phase of the trial was vague, imprecise, and incapable of
reasoned and rational application in violation of the 8th and
14th Amendments. As discussed above, we find that the con-
sideration of this entire aggravating circumstance was harmless
error; therefore, we do not reach this issue.
13. “G reAt riSk of deAth ”
Sandoval alleges three assignments of error relating to
aggravator (1)(f), which is that the offender “knowingly cre-
ated a great risk of death to at least several persons.” He
claims that the trial court incorrectly instructed the jury on
the aggravator, that it failed to give a limiting instruction that
the risk of death to at least several other persons could not
be found by using evidence of a risk of death to others after
the murders occurred, and that the trial court erred in submit-
ting jury instructions concerning accessorial liability regarding
aggravator (1)(f). Sandoval also claims that he received inef-
fective assistance of counsel with regard to all three of these
aggravators because his counsel did not raise these issues
at trial.
(a) Standard of Review
Jury instructions must be read as a whole, and if they fairly
present the law so that the jury could not be misled, there is no
prejudicial error. State v. Fischer, 272 Neb. 963, 726 N.W.2d
176 (2007).
[39,40] In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Welch, 275
364 	280 NEBRASkA REpoRTS

Neb. 517, 747 N.W.2d 613 (2008). Before an error in the giv-
ing of instructions can be considered as a ground for reversal
of a conviction, it must be considered prejudicial to the rights
of the defendant. Id.
[41] A trial court is not obligated to instruct the jury on
matters which are not supported by the evidence in the record.
State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
(b) Analysis
(i) Omission of “Great”
Aggravator (1)(f) as laid out in § 29-2523 is that “[t]he
offender knowingly created a great risk of death to at least
several persons.” In the trial court’s preliminary jury instruc-
tion, the modifier “great” was omitted. Sandoval’s trial coun-
sel objected to the omission, and the court acknowledged that
the instruction was only a preliminary instruction. The instruc-
tions given to the jury at the close of the evidence of the
aggravation trial instructed the jury on aggravator (1)(f) sev-
eral times. In instruction No. 2A, the jury was told that it must
find beyond a reasonable doubt that “the offender knowingly
created a risk of death to at least several persons.” Later on
in the same instruction, the jury was informed that the essen-
tial elements to prove aggravator (1)(f) were (1) the offender
knowingly created a great risk of death and (2) the risk was to
more than two persons. Finally, the jury was given five sepa-
rate verdict forms—one for each victim. The instruction on
each verdict form asked, “do you, the jury, unanimously find
that the State has proven beyond a reasonable doubt that the
defendant at the time this murder was committed, knowingly
created a great risk of death to at least several persons?” The
jury indicated “YES” in response to the question on all five
verdict forms.
Read as a whole, it is clear that the omission of the modi-
fier “great” in one instance in all of the jury instructions was
not prejudicial. The jury was specifically instructed that “great
risk of death” was an element of the aggravator and that it
must determine whether Sandoval created a great risk of death,
and not just a risk of death. The jury was likewise properly
instructed on the five verdict forms. The jury instructions
STATE v. SANdovAL 	365
Cite as 280 Neb. 309

fairly present the law, and the jury could not have been misled.
See Fischer, supra. Because there was no prejudicial error,
Sandoval’s trial counsel did not provide ineffective assistance
of counsel by failing to object to the jury instructions. This
assignment of error is without merit.
(ii) Number of Persons Placed at Risk
Sandoval also claims that the trial court erred because the
jury instruction explaining aggravator (1)(f) did not sufficiently
limit the individuals who were placed at risk to be considered
by the jury in determining whether this aggravator was pres-
ent. He argues that the jury should have been instructed that it
could not consider individuals placed at risk in the aftermath
of the murders in the three men’s subsequent attempt at escape,
such as the woman who was held up at gunpoint and forced to
hand over her car keys. Because there was clear evidence in
support of aggravator (1)(f) before Sandoval exited the bank,
we do not need to consider events occurring after the shootings
at the bank.
Sandoval also claims that the jury should have been instructed
not to consider individuals who faced a “‘great risk of death’”
more directly by one of his accomplices. Brief for appellant
at 151. Specifically, Sandoval argues that because Staehr and
Cahoy were in the office with Elwood and were shot at by
Galindo, they were not placed at a “great risk of death” by
Sandoval. Sandoval argues that it was only Galindo who placed
koepke at a “great risk of death” by shooting at her as she
entered the bank.
Sandoval planned a bank robbery that involved three men
with semiautomatic handguns entering a bank full of people.
All three of the men fired at the people in the bank, putting
eight directly in the crossfire and leaving five dead. Sandoval
shot and killed every person near him. Considering the con-
fined area of the bank, the three individuals who survived the
incident were within range of Sandoval’s weapon at all times
and he unquestionably placed them at a great risk of death.
These events unquestionably put the three survivors at great
risk of death.
366 	280 NEBRASkA REpoRTS

(iii) Accessorial Liability
It is also clear that Sandoval personally caused a great risk
of death to Staehr, Cahoy, and koepke in planning and carrying
out a bank robbery in which three men with loaded weapons
entered a small bank full of people. Accessorial liability does
not need to be considered, because the evidence clearly estab-
lishes that Sandoval knowingly created a great risk of death by
his own actions. A trial court is not obligated to instruct the jury
on matters which are not supported by evidence in the record.
State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
In this case, the evidence supported a finding that Sandoval
personally killed three people and planned the robbery that
caused two more people to be killed and three more people to
be in the midst of gunfire. The trial court was not obligated to
further instruct the jury on this issue. Because the court did
not err in declining to give additional instructions, Sandoval’s
trial counsel did not err by failing to request such instructions.
These assignments of error are without merit.
14. motionS for ACquittAl AS to
AGGrAvAtinG C irCumStAnCeS
Sandoval alleges that the trial court erred in overruling his
motions for judgment of acquittal as a matter of law with
respect to the aggravating circumstances at the close of the
State’s case and at the close of all the evidence following the
aggravation portion of the trial.
(a) Standard of Review
[42] 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 view-
ing 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.
Gales II.
(b) Analysis
Sandoval claims that the State did not present evidence
sufficient to prove the alleged aggravating circumstances. In
the State’s “Notice of Aggravation,” it sought to prove six
STATE v. SANdovAL 	367
Cite as 280 Neb. 309

aggravators: (1) The offender has a substantial prior history
of serious assaultive or terrorizing criminal activity; (2) the
murder was committed in an effort to conceal the commis-
sion of a crime or to conceal the identity of the perpetrator
of such crime; (3) the murder was committed for pecuniary
gain; (4) the murder was especially heinous, atrocious, cruel,
or manifested exceptional depravity by ordinary standards of
morality and intelligence; (5) at the time the murder was com-
mitted, the offender also committed another murder; and (6)
the offender knowingly created a great risk of death to at least
several persons.
The State did not present evidence in support of the third
aggravator, that the murder was committed for pecuniary gain,
but the remaining five were submitted to the jury. The jury
found that the aggravator alleging that Sandoval had a substan-
tial prior history of serious assaultive or terrorizing criminal
activity was not present and found that the other four factors
were present. Because the jury found these aggravators to
exist, death was a possible penalty. The cause was submitted
to a three-judge panel to determine the existence of mitigat-
ing circumstances and to weigh any mitigating circumstances
against the aggravating circumstances. Sandoval alleges that
the evidence was insufficient for the jury to find the existence
of aggravators (2), (4), and (6).
Sandoval does not set forth an argument in support of his
claim challenging aggravator (3), which aggravator exists if
at the time the murder was committed, the offender commit-
ted another murder. As the jury found Sandoval guilty of five
counts of first degree murder, there was indisputably more than
one murder and, therefore, sufficient evidence to submit the
aggravator to the jury.
(i) Murder Committed to Conceal
Identity of Perpetrator
Sandoval argues that the evidence offered by the State
indicated that the murders were committed only for the pur-
pose of concealing the murder of that particular victim, but
not any other crime. Indeed, in State v. Lotter, 255 Neb. 456,
586 N.W.2d 591 (1998), we noted that any murder renders the
368 	280 NEBRASkA REpoRTS

victim unable to identify the perpetrator; therefore, for this
aggravator to apply, a defendant must commit the murder in an
effort to conceal a crime other than the murder itself.
The State presented evidence that Sandoval planned to
commit a bank robbery. Rodriguez entered the bank several
minutes before Sandoval, vela, and Galindo to determine the
location of bank employees. The three men were wearing hats
and sunglasses, and Sandoval carried a backpack contain-
ing distraction devices when they entered the bank. After the
five victims were killed, shots were fired at koepke as she
entered the bank. The men began to leave, and Cahoy heard
them talk about an alarm and heard someone say, “‘Hurry up,
Hurry up.’”
From videos, photographs, and testimony offered as evi-
dence during trial, the jury could reasonably infer that the
victims were killed in an effort to conceal the identity of
Sandoval, vela, and Galindo as perpetrators of a bank robbery.
Accordingly, the trial court did not abuse its discretion in over-
ruling Sandoval’s motions for judgment of acquittal as a matter
of law.
(ii) Murders Were Especially Heinous, Atrocious, Cruel,
or Manifested Exceptional Depravity
Sandoval also asserts that the State did not present sufficient
evidence for aggravator (1)(d) to be submitted to the jury.
pursuant to § 29-2523, this aggravator exists with respect to
each murder if the murder “was especially heinous, atrocious,
cruel, or manifested exceptional depravity by ordinary stan-
dards of morality and intelligence.” As discussed above, the
consideration of aggravator (1)(d) was harmless error.
(iii) Offender Knowingly Created Great Risk of
Death to at Least Several Persons
This aggravator requires the finding that Sandoval created a
great risk of death to more than two persons. during the course
of the robbery, Staehr, Cahoy, and koepke were placed at great
risk of death due to their presence in the bank and proximity to
the gunfire. This evidence is sufficient to submit to the jury the
question of whether Sandoval knowingly created a great risk
STATE v. SANdovAL 	369
Cite as 280 Neb. 309

of death to more than two persons. This assignment of error is
without merit.
15. mitiGAtion And SentenCinG errorS
(a) presentence Investigation Report
[43] Sandoval claims that the trial court erred in receiving
and reviewing the presentence investigation report because it
contained prejudicial victim impact evidence and because the
sentencing panel was then afforded the opportunity to consider
evidence of nonstatutory aggravating circumstances. It is pre-
sumed that judges disregard evidence which should not have
been admitted. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d
169 (2000), abrogated on other grounds, State v. Mata, 275
Neb. 1, 745 N.W.2d 229 (2008). Furthermore, the sentencing
panel in this case specifically stated that it did not consider
the victim impact statements. Because the sentencing panel did
not consider the evidence that Sandoval argues is improper,
his argument that it resulted in the application of nonstatutory
aggravators is without merit.
(b) denial of Jury at Mitigation Hearing
Sandoval claims that the trial court erred when it denied
his motion for a jury at the mitigation hearing and sentencing.
He argues that the Sixth and Eighth Amendments to the U.S.
Constitution and Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428, 153 L. Ed. 2d 556 (2002), require a jury to determine the
existence of mitigating circumstances because the mitigators
were factors that could increase his punishment. We rejected
that argument in State v. Gales, 265 Neb. 598, 628-29, 658
N.W.2d 604, 626-27 (2003) (Gales I), stating that
we understand Ring as recognizing a Sixth Amendment
right to a jury determination of the existence of aggravat-
ing circumstances which determine “death eligibility,”
because in the absence of at least one such circumstance,
the death penalty cannot be imposed. It is the determina-
tion of “death eligibility” which exposes the defendant to
greater punishment, and such exposure triggers the Sixth
Amendment right to jury determination as delineated
in Apprendi [v. New Jersey, 530 U.S. 466, 120 S. Ct.
370 	280 NEBRASkA REpoRTS

2348, 147 L. Ed. 2d 435 (2000),] and Ring. In contrast,
the determination of mitigating circumstances, the bal-
ancing of aggravating circumstances against mitigating
circumstances, and proportionality review are part of the
“selection decision” in capital sentencing, which, under
the current and prior statutes, occurs only after eligibility
has been determined. See § 29-2522; L.B. 1, § 14. These
determinations cannot increase the potential punishment
to which a defendant is exposed as a consequence of the
eligibility determination. Accordingly, we do not read
either Apprendi or Ring to require that the determination
of mitigating circumstances, the balancing function, or
proportionality review be undertaken by a jury.
Accordingly, a jury is not required to determine the existence
of mitigating factors or the sentence. This assignment of error
is without merit.
(c) denial of Rebuttal Evidence
Sandoval claims that the sentencing panel erred in deny-
ing him the opportunity to adduce evidence and to testify to
rebut the State’s case at the mitigation portion of the trial.
Alternatively, he alleges that his trial counsel provided ineffec-
tive assistance of counsel by failing to make an offer of proof
regarding the evidence and testimony that would have been
offered in rebuttal.
[44,45] Rebuttal evidence is confined to new matters first
introduced by the opposing party and is not an opportunity
to bolster, corroborate, reiterate, or repeat a case in chief.
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). It is
limited to that which explains, disproves, or counteracts evi-
dence introduced by the adverse party. See id. The abuse of
discretion standard is applied to an appellate court’s review
of a trial court’s ruling on the admissibility of rebuttal testi-
mony. Id.
Sandoval argues that his constitutional right to present a
defense was violated; however, he has not identified any evi-
dence that was not available at the time of his case in chief.
Sandoval notes that he has a right to testify and that he has a
right to have witnesses testify on his behalf. He availed himself
STATE v. SANdovAL 	371
Cite as 280 Neb. 309

of both. Accordingly, he was not denied his constitutional right
to present a defense.
Nor has he identified any new issues raised by the State
in its presentation of evidence that would have made rebut-
tal proper. The sentencing panel specifically determined that
because the State did not develop any new issues in its case,
rebuttal would not have probative value as to the issues fac-
ing the panel. Had Sandoval been permitted to present rebuttal
evidence, he claims that he would have offered evidence of his
prior drug use, racial tensions he experienced in high school,
the poor conditions he endured throughout his childhood, his
experiences while incarcerated, his limited ability to function
outside of prison, and his alleged use of LSd on the day of the
crimes. All of these issues were addressed in his case in chief.
Because rebuttal evidence is limited to matters first introduced
by the opposing party and is not to be used to repeat the case
in chief, the evidence Sandoval now claims he was erroneously
prohibited from offering was not proper rebuttal evidence. See
Molina, supra. Therefore, the sentencing panel did not abuse
its discretion in disallowing rebuttal testimony.
Sandoval was not denied the right to present his defense
and was not entitled to present cumulative evidence on rebuttal
after the State did not raise new issues. Because the sentencing
panel did not err in disallowing the proposed rebuttal testimony,
Sandoval’s counsel did not err in failing to make an offer of
proof. As such, this assignment of error is without merit.
(d) Sentencing panel’s Use of
Transcribed Testimony
Sandoval argues that the three-judge sentencing panel erred
in receiving into evidence the transcribed testimony from
Sandoval’s trial and aggravation trial. He claims that Nebraska’s
sentencing scheme does not authorize the sentencing panel’s
use of the transcribed testimony and that this use was preju-
dicial because Sandoval could not meaningfully ascertain how
the sentencing panel used the evidence.
[46,47] We considered this issue in State v. Hessler, 274
Neb. 478, 741 N.W.2d 406 (2007). We noted that a sentenc-
ing panel has broad discretion as to the source and type of
372 	280 NEBRASkA REpoRTS

evidence and information which may be used in determining
the kind and extent of the punishment to be imposed. See id.
Furthermore, Neb. Rev. Stat. § 29-2521 (Reissue 2008) permits
the panel to receive any evidence which the presiding judge
deems to have probative value. We found that receipt of the
records of the guilt and aggravation phases is authorized under
the discretion given the presiding judge under § 29-2521.
Hessler, supra.
Logic dictates that for a meaningful sentencing hearing to
occur, the sentencing panel must know and understand the facts
of the case. Indeed, after a defendant is found guilty of murder
in the first degree and at least one aggravating circumstance
is found to exist, § 29-2522 instructs the sentencing panel to
determine a defendant’s sentence based on whether the aggra-
vating circumstances as determined to exist justify imposition
of a sentence of death; whether sufficient mitigating circum-
stances exist which approach or exceed the weight given to the
aggravating circumstances; or whether the sentence of death is
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.
The transcribed testimony from the guilt and aggravation
phases of the trial serves this purpose. Accordingly, we con-
clude that the sentencing panel did not err by receiving evi-
dence of the guilt and aggravation phases of the trial in the
sentencing hearing. Likewise, because the court was within its
discretion to consider such evidence, Sandoval’s trial counsel
did not provide ineffective assistance of counsel in failing to
object to the receipt and use of the transcribed testimony. This
assignment of error is without merit.
16. deAth penAlty
(a) death by Electrocution
[48] Sandoval also alleges two assignments of error chal-
lenging his sentence of death by electrocution, claiming it is
unconstitutional and is cruel and unusual punishment under the
Eighth Amendment to the U.S. Constitution and article I, § 9,
of the Nebraska Constitution. His challenge to death by elec-
trocution was made prior to our opinion in State v. Mata, 275
Neb. 1, 745 N.W.2d 229 (2008). In Mata, we concluded that
STATE v. SANdovAL 	373
Cite as 280 Neb. 309

execution by electrocution is cruel and unusual punishment.
Accordingly, we find that this assignment of error has merit;
however, we affirm the sentence of death.
(b) Cruel and Unusual punishment
[49] Sandoval also claims that the death penalty, however
carried out and applied, is cruel and unusual punishment.
Although he acknowledges that in Gales II, this court affirmed
that the death penalty is not, per se, cruel and unusual punish-
ment, Sandoval argues that this court has not yet analyzed the
propriety of the imposition of the death penalty in cases of
felony murder under “‘evolving standards of decency.’” Brief
for appellant at 188. In Mata, 275 Neb. at 31, 745 N.W.2d at
255-56, we reiterated that “‘[t]he death penalty, when properly
imposed by a state, does not violate either the eighth or [the]
fourteenth amendment [to] the United States Constitution or
Neb. Const. art. [I], § 9.’” We decline Sandoval’s invitation to
revisit this issue.
(c) Appropriateness of Sentence
Sandoval next argues that the trial court erred in declining
to consider evidence of sentencing orders from all Nebraska
first degree murder cases for the purposes of sentence exces-
siveness and proportionality review. He offered evidence of
first degree murder cases in Nebraska in which the death
penalty was not imposed, and the david C. Baldus et al.,
Final Report on the disposition of Nebraska Capital and Non-
Capital Homicide Cases (1973-1999): A Legal and Empirical
Analysis (2002), which Sandoval refers to as “the Baldus
study.” Brief for appellant at 180. The three-judge panel did
not consider cases in which the death penalty was not ulti-
mately imposed in its proportionality review during the sen-
tencing phase of the trial. We recently considered this issue in
State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009), and
in accordance with that opinion, we find that this assignment
of error is without merit.
(d) discrimination
Sandoval also claims that the State’s decision to seek the
death penalty was based on invidious discrimination; was not
374 	280 NEBRASkA REpoRTS

guided by rational, relevant, and consistent standards; and was
based on irrational and illegal criteria.
[50] Sandoval is apparently arguing that the State abused
its prosecutorial discretion in seeking the death penalty in
Sandoval’s case. However, the State retains broad discretion as
to whom to prosecute and what charges to file. See, Wayte v.
United States, 470 U.S. 598, 105 S. Ct. 1524, 84 L. Ed. 2d 547
(1985); Gales II. This discretion is limited only to constitu-
tional constraints, that is, a decision whether to prosecute may
not be based on an unjustifiable standard such as race, religion,
or other arbitrary classification. See, Wayte, supra; Gales II.
decisions to prosecute often rely on “[s]uch factors as the
strength of the case, the prosecution’s general deterrence value,
the Government’s enforcement priorities, and the case’s rela-
tionship to the Government’s overall enforcement plan[, which]
are not readily susceptible to the kind of analysis the courts are
competent to undertake.” Wayte, 470 U.S. at 607.
[51] The presumption of regularity supports prosecutorial
decisions, and in the absence of clear evidence to the contrary,
courts presume that prosecutors have properly discharged their
official duties. Gales II. In order to dispel this presumption, a
criminal defendant must present clear evidence to the contrary.
Id. Such evidence is completely lacking here; thus, Sandoval’s
claim fails.
17. ineffeCtive ASSiStAnCe of C ounSel
Sandoval alleges that his trial counsel provided ineffective
assistance with respect to several aspects of his case, including
seeking a psychiatric evaluation, allowing speculative testi-
mony from a witness, failing to call a forensic pathologist in
rebuttal, and failing to adduce prior consistent statements.
(a) Standard of Review
To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), the defendant must show that coun-
sel’s performance was deficient and that this deficient perform-
ance actually prejudiced his or her defense. State v. Hudson,
277 Neb. 182, 761 N.W.2d 536 (2009).
STATE v. SANdovAL 	375
Cite as 280 Neb. 309

[52] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact. When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland, an appellate court reviews such legal
determinations independently of the lower court’s decision. See
Gales II.
(b) Analysis
(i) Psychiatric Evaluation
Sandoval alleges that he received ineffective assistance of
counsel because his trial counsel recommended to the trial
court that Sandoval be examined by a court-appointed psychia-
trist to determine if Sandoval was competent to proceed pro se.
He claims his attorney’s action in asking the court to appoint a
psychiatrist to determine Sandoval’s competency provided the
psychiatrist with the ability to be a damaging witness for the
State at the mitigation phase of the trial. Sandoval also claims
that the trial court erred in receiving the testimony of the psy-
chiatrist at the mitigation phase of the trial and that his counsel
provided ineffective assistance in failing to preserve a proper
objection to the testimony. Finally, he alleges ineffective assist-
ance because his counsel did not object to the testimony of
the psychiatrist when he testified about Sandoval’s propensity
for truthfulness.
The facts Sandoval claims support his assertions are contra-
dicted by the record. on February 20, 2003, Sandoval’s trial
counsel filed a motion to withdraw pursuant to Sandoval’s
request to proceed pro se. In the motion, Sandoval’s counsel
advised the court that he felt he had a duty to inform the court
that he had a material concern that Sandoval may not be com-
petent. Following his oral advisement to the court regarding this
concern, the State, and not Sandoval’s counsel, recommended
that the court appoint a psychiatrist to evaluate Sandoval’s
competency. The court asked Sandoval if he had any objection
to being examined by a professional, and Sandoval replied that
he did not.
376 	280 NEBRASkA REpoRTS

during the psychiatrist’s testimony in the mitigation phase,
Sandoval’s counsel objected no fewer than 10 times and the
court gave his counsel continuing objections to every subject
of the psychiatrist’s testimony. When the psychiatrist stepped
down from the witness stand, the court sustained Sandoval’s
counsel’s objection to all of the psychiatrist’s testimony except
for general testimony regarding traits of personality disorders.
Sandoval’s attorney diligently objected to testimony and suc-
ceeded in excluding all of the testimony derived from the
court-ordered interview. As such, the record does not reveal
any deficiencies in Sandoval’s attorney’s performance.
Also, there is no evidence that Sandoval suffered any preju-
dice from the psychiatrist’s testimony. In its order, the sentenc-
ing panel specifically stated that it did not consider any of
the psychiatrist’s testimony that was derived from his court-
ordered interview of Sandoval. Therefore, we do not consider
whether the psychiatrist’s testimony was proper, because the
sentencing panel did not consider the testimony in reaching its
determination. Further, it is presumed that judges disregard evi-
dence which should not have been admitted. State v. Joubert,
235 Neb. 230, 455 N.W.2d 117 (1990). Sandoval did not suffer
prejudice from the psychiatrist’s testimony.
There is no evidence that Sandoval’s counsel’s performance
was defective or that Sandoval suffered prejudice from the
psychiatrist’s testimony. The trial court did not err in receiv-
ing the testimony, and Sandoval’s counsel did not provide
ineffective assistance. These assignments of error are with-
out merit.
(ii) Testimony of Todd Uhlir
Sandoval claims that his trial counsel was ineffective because
he elicited speculative testimony from Todd Uhlir regarding a
bullet’s trajectory. during the aggravation phase of the trial, the
State called Uhlir, the director of operations for the fast-food
restaurant located across the street from the bank. on direct
examination, Uhlir testified that a bullet from the robbery hit
the glass of the drive-through window. He drew a diagram of
the restaurant and indicated where employees are located on a
typical morning.
STATE v. SANdovAL 	377
Cite as 280 Neb. 309

Sandoval’s counsel objected on the grounds that Uhlir was
not at the restaurant at the time of the shootings, so he did
not know where the employees were actually standing. In a
sidebar, Sandoval’s counsel explained that he was concerned
the jurors would be misled by Uhlir’s testimony and diagram,
because they might think that was where people were actually
standing when the bullet hit the window.
on cross-examination, Sandoval’s counsel asked Uhlir ques-
tions to clarify that he was not at the restaurant during the rob-
bery; that the bullet did not go through the glass; and that due
to the angle at which the bullet was fired, it would have likely
lodged in a wall and not traveled into the kitchen portion of the
restaurant. Taken as a whole, the testimony elicited seems to
be part of a deliberate trial strategy of showing the jurors that
the likelihood of an employee’s being hit by the stray bullet
was low.
[53] Trial counsel is afforded due deference to formulate
trial strategy and tactics. State v. Jackson, 275 Neb. 434, 747
N.W.2d 418 (2008). As such, when reviewing an ineffective
assistance of counsel claim, the court will not second-guess
reasonable strategic decisions made by counsel. Id. Sandoval’s
counsel’s cross-examination of Uhlir was not deficient and
did not prejudice Sandoval. This assignment of error is with-
out merit.
(iii) Failure to Call Forensic
Pathologist
Sandoval claims that he received ineffective assistance
because his trial counsel did not call a forensic pathologist
as a witness to rebut the testimony of dr. Jerry Jones. Jones
testified concerning how long each of the victims had lived
after being shot and the manner in which each ultimately
had died.
during the guilt portion of the trial, Jones told the jury that
Sun died from asphyxiation from bleeding in his air passages
and extensive blood loss, Tuttle died from bone fragment dis-
ruption in her brain and bleeding around her brain stem, Bryant
died from asphyxiation due to bleeding in her air passages,
Elwood died from extensive bleeding in both chest cavities,
378 	280 NEBRASkA REpoRTS

and Mausbach died from asphyxiation due to blood filling her
air passages.
Jones explained that when a person’s air passages fill with
blood, the person has difficulty breathing. He or she would
gasp to breathe, and cough, snort, or spit to try to get the blood
out of his or her mouth. As an example, Jones explained that
the blood on the wall near Mausbach was from her coughing
blood in an attempt to breathe.
At the aggravation phase of the trial, Jones testified that
when the victims asphyxiated, they were consciously attempt-
ing to expel blood from their airways and were essentially
drowning in their own blood. He testified that it could take 1
to 2 minutes before a person became unconscious and 4 to 5
minutes before the person actually suffocated and died. Jones
explained that although the person is gasping for air, the person
is conscious, alert, and aware that he or she is dying. He char-
acterized it as a “very agonizing” death. Jones also testified
that although not as agonizing as asphyxiation, death by exsan-
guination—or blood loss—is not a pleasant way to die because
blood loss leads to anxiety, apprehension, an impending sense
of doom, and shortness of breath.
on 	cross-examination, 	Sandoval’s 	attorney 	attempted 	to
clarify the length of time that each victim was conscious after
the shooting. He also asked Jones to confirm that it appeared
that the gunshot wounds were intended to cause death and not
to prolong the suffering. during the cross-examination, Jones
also stated that he thought suffocation from blood was one of
the worst ways to die. He stated that each second feels like “an
eternity until the person dies.”
Sandoval’s trial counsel did not have an expert witness rebut
Jones’ testimony. Sandoval raised the issue at a hearing on his
motion for substitute counsel, and Sandoval’s attorney testified
regarding the issue. He testified that in reaching the decision
not to call a rebuttal witness, he considered whether arguments
over the length of time the victims suffered before death would
have a negative influence on the jury, whether additional grue-
some testimony would have a favorable effect on the jury, and
whether he wanted to give the State the opportunity to have
Jones recalled to the stand to reiterate the suffering that the
STATE v. SANdovAL 	379
Cite as 280 Neb. 309

victims endured before they died. These reasons indicate that
the decision not to call a forensic pathologist to rebut Jones’
testimony was carefully made and was part of a trial strategy
which we will not second-guess. State v. Jackson, 275 Neb.
434, 747 N.W.2d 418 (2008). Accordingly, Sandoval’s trial
counsel was not deficient.
Furthermore, there is no evidence that Sandoval suffered
any prejudice due to the fact that a doctor did not testify on
his behalf. As his counsel noted, it is likely that an argument
among experts over the precise number of seconds a victim
suffered before he or she expired would not be well received by
the jury. This assignment of error is without merit.
(iv) Failure to Adduce Prior
Consistent Statements
Sandoval next argues that his trial counsel provided inef-
fective assistance because he did not adduce evidence of an
alleged prior consistent statement made by Sandoval regard-
ing his claim that he used LSd on the day of the murders.
Sandoval alleges that during the mitigation phase of the trial,
the State mentioned in its closing argument two statements
Sandoval made about using LSd. Sandoval argues that his
counsel should have offered the statements as mitigating evi-
dence that Sandoval had not changed his story about using
LSd. We conclude that Sandoval was not prejudiced by the
failure to offer his prior consistent statement regarding his use
of LSd on the day of the murders. Therefore, this assignment
of error is without merit.
18. independent proportionAlity revieW
[54] Under Neb. Rev. Stat. § 29-2521.03 (Reissue 2008),
the Nebraska Supreme Court is required, upon appeal, to
determine the propriety of a death sentence by conducting a
proportionality review. State v. Vela, 279 Neb. 94, 777 N.W.2d
266 (2010); State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
This review requires us to compare the aggravating and miti-
gating circumstances with those present in other cases in which
a district court imposed the death penalty. Id. The purpose of
this review is to ensure that the sentences imposed in this case
380 	280 NEBRASkA REpoRTS

are no greater than those imposed in other cases with the same
or similar circumstances. Id.
In conducting our independent proportionality review, we
reviewed our relevant decisions on direct appeal from other
cases in which aggravating circumstances were found and the
death penalty was imposed. See, Vela, supra; State v. Galindo,
278 Neb. 599, 774 N.W.2d 190 (2009); Mata, supra; State
v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007); Gales I
(and cases noted therein). particularly, we take note of State
v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), in which we
affirmed a sentence of death for the defendant’s convictions of
two counts of first degree murder for the murder of two cab-
drivers during a robbery.
The cases of vela and Galindo, Sandoval’s coconspirators,
are most comparable. Vela, supra; Galindo, supra. As in Vela
and Galindo, the murders in this case were committed in an
effort to conceal the identity of the perpetrator, multiple mur-
ders were committed, and there was a great risk of death to
more than two persons. Also comparable to Galindo, the sen-
tencing panel found that no statutory mitigating circumstances
existed and that one nonstatutory mitigating circumstance
existed to which it gave little weight. Although the sentencing
panel in Vela found three nonstatutory mitigating factors, it
nevertheless concluded that the death penalty was not dispro-
portionate or excessive.
Sandoval planned an armed bank robbery, recruited partici-
pants, and carried out the plan, which resulted in five murders.
Based on our independent review, we find that the imposition
of the death penalty for each of the five counts of first degree
murder is proportional to the sentence imposed in the same or
similar circumstances.
v. CoNCLUSIoN
The trial court erred in instructing the jury on aggravator
(1)(d); however, the error was harmless. Except for Sandoval’s
challenge of electrocution as the method of death, Sandoval’s
other assignments of error do not have merit. We conclude the
evidence was sufficient to sustain the convictions and the sen-
tences. Therefore, we affirm the convictions; affirm the panel’s
STATE v. SANdovAL 	381
Cite as 280 Neb. 309

sentences of death for the first degree murders of Elwood,
Sun, Bryant, Mausbach, and Tuttle; and affirm the sentences
imposed for use of a weapon to commit a felony.
A ffirmed.
heAviCAn, C.J., not participating.
C onnolly, J., concurring in part, and in part dissenting.
I concur in the majority’s opinion that the district court
should not have instructed the jury on the “mental anguish”
component of the heinous, atrocious, or cruel prong of aggra-
vator (1)(d). But, in concurring, I disagree with the majori-
ty’s statement that we have not previously recognized mental
anguish as a component of the heinousness factor. I write sepa-
rately to explain why the trial court should not have given the
instruction in this case despite our previous recognition of the
mental anguish component.
The majority opinion states that in State v. Gales,1 we rec-
ognized that “mental anguish” had been included in the pattern
jury instructions but that we did not consider its validity. It is
true that the defendant failed to raise this issue on appeal, but
we clearly preempted a future collateral attack in Gales:
[T]he jury was instructed that in order to find that the
murder of [one of the victims] was especially heinous,
atrocious, or cruel, it must find that “[t]he defendant
inflicted serious mental anguish or serious physical abuse
— meaning sexual abuse — on the victim . . . before her
death. Mental anguish includes a victim’s uncertainty as
to his or her ultimate fate.” With respect to the phrase
“sexual abuse,” the court’s instruction was constitution-
ally sound and consistent with Nebraska law as explained
in [State v.] Ryan[, 248 Neb. 405, 534 N.W.2d 766
(1995)]. Neither [the defendant’s] objection at trial, nor
his appellate brief, take issue with the district court’s
use of the phrase “serious mental anguish,” and whether
that phrase is consistent with prior Nebraska law is not
before us in this appeal. We note, however, that the phrase
“‘[m]ental anguish includ[ing] a victim’s uncertainty as to
1 State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
382 	280 NEBRASkA REpoRTS

his ultimate fate’” has been held not to be unconstitution-
ally vague.2
In Gales, we did not know which prong of aggravator (1)(d)
the jury believed was proved and could not have concluded that
the instruction, as a whole, was constitutionally sound unless
both prongs were constitutionally sound. When
a jury is clearly instructed by the court that it may convict
a defendant on an impermissible legal theory, as well as
on a proper theory or theories[,] it is possible that the
guilty verdict may have had a proper basis, [but] “it is
equally likely that the verdict . . . rested on an unconsti-
tutional ground.”3
So I believe that we did recognize the propriety of the men-
tal anguish component in Gales. But even if we had not, we
had previously stated in State v. Palmer4 that a victim’s uncer-
tainty as to his ultimate fate is a component of the heinous-
ness prong:
As a meaning for the words “especially heinous, atro-
cious, cruel” found in circumstance (1)(d) of § 29-2523,
this court, in State v. Simants[, 197 Neb. 549,] 566, 250
N.W.2d [881,] 891 [(1977)], has adopted the definition
utilized by the Florida court in State v. Dixon[, 283 So. 2d
1 (Fla. 1973)], that is, especially heinous, atrocious, cruel
is “directed to the conscienceless or pitiless crime which
is unnecessarily torturous to the victim.” . . .
“Torture may be found where the victim is subjected
to serious physical, sexual, or psychological abuse before
death.” Phillips v. State, 250 Ga. 336, 340, 297 S.E.2d
2 Id. at 483-84, 694 N.W.2d at 161, citing 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).
3 Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d
316 (1990), quoting Bachellar v. Maryland, 397 U.S. 564, 90 S. Ct. 1312,
25 L. Ed. 2d 570 (1970). See, also, Shell v. Mississippi, 498 U.S. 1, 111 S.
Ct. 313, 112 L. Ed. 2d 1 (1990) (Marshall, J., concurring); Leary v. U.S.,
395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969). Compare Williams v.
Clarke, 40 F.3d 1529 (8th Cir. 1994).
4 State v. Palmer, 224 Neb. 282, 315, 399 N.W.2d 706, 729 (1986).
STATE v. SANdovAL 	383
Cite as 280 Neb. 309

217, 221 (1982). “A victim’s uncertainty as to the ulti-
mate fate can be significant in indicating mental suf-
fering.” State v. Correll, [148 Ariz. 468,] 480, 715 p.2d
[721,] 733 [(1986)].
As the facts in Gales and Walton v. Arizona5 illustrate,
the mental anguish instruction is not unconstitutionally vague
when the evidence would support two different 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 murder.
In Walton, the U.S. Supreme Court affirmed the use of the
mental anguish instruction when the victim was forced to lie
on the ground while his kidnappers decided what to do with
him. The defendant then forced him to walk out into the desert,
taking a gun but not a rope, “surely making [the victim] real-
ize that he was not going to be tied up and left unharmed.”6 In
State v. Correll,7 the case we cited in Palmer, armed assailants
bound the victims and then drove them into the desert before
killing them. The court in Correll stated, “At no time could
they be certain what these two armed men intended beyond
robbery.”8 Finally, in Gales,9 the defendant killed two children
by strangulation in the same house. A fact finder could have
reasonably found that the child who was killed last would have
been aware that the defendant had murdered the other child and
would have feared for his or her own fate.
Although the mental anguish instruction is not unconstitu-
tionally vague in the circumstances described above, I agree
that it should not have been given in this case because the
victims were all shot immediately. The State did not argue
5 Walton, supra note 2.
6 Walton, supra note 2, 497 U.S. at 646 n.3.
7 State v. Correll, 148 Ariz. 468, 715 p.2d 721 (1986).
8 Id. at 480, 715 p.2d at 733.
9 Gales, supra note 1.
384 	280 NEBRASkA REpoRTS

that the victims would have agonized over whether the defend-
ants intended to kill them or their imminent doom before
they were shot. In fact, the State argued that the defendants
planned to shoot everyone immediately so there would not
be any witnesses. Under these facts, I agree that the mental
anguish instruction failed to channel the jury’s discretion for
determining whether Sandoval was more deserving of the
death penalty than any capital defendant whose victim did not
die instantaneously.
Furthermore, the majority opinion implicitly assumes, and
I agree, that the heinousness instruction was not otherwise
warranted under our limiting construction in Palmer, quoted
above, requiring that the murder be unnecessarily torturous to
the victim.
I also concur in the majority’s opinion that the court should
not have instructed the jury on the “apparent relishing” com-
ponent of the exceptional depravity prong. Here, the facts were
too speculative, and therefore insufficient, to submit this com-
ponent to the jury. We addressed case law relevant to this issue
in State v. Mata.10
In Mata, the defendant argued that it was not clear whether
the term “apparently relished” referred to the fact finder’s
perception of his conduct or his mental state. We rejected that
argument. We noted that under an earlier version of aggravator
(1)(b), the sentencing panel had to find that the defendant had
murdered in an “apparent effort” to conceal a crime. We stated
that under the earlier version, we had agreed with a federal
court that “‘“apparent”’ means ‘“readily perceptible,”’” and
that therefore, the provision “‘“cannot be applied in speculative
situations or where a strained construction is necessary to ful-
fill it.”’”11 In State v. Lotter,12 we interpreted the term “‘readily
perceptible’” to mean “‘easily capable of being noticed.’” We
10 State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
11 Id. at 27, 745 N.W.2d at 253, quoting State v. Reeves, 234 Neb. 711, 453
N.W.2d 359 (1990), vacated and remanded on other grounds 498 U.S.
964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990).
12 State v. Lotter, 255 Neb. 456, 521-22, 586 N.W.2d 591, 635 (1998).
Accord Mata, supra note 10.
STATE v. SANdovAL 	385
Cite as 280 Neb. 309

concluded in Lotter that for the sentencing panel to conclude
that the defendant murdered in an apparent attempt to conceal
the commission of a crime, it must have been obvious to the
panel that this was the defendant’s purpose.13
In Walton, the U.S. Supreme Court approved the Arizona
Supreme Court’s holding that “a crime is committed in an
especially ‘depraved’ manner when the perpetrator ‘relishes
the murder, evidencing debasement or perversion,’ or ‘shows
an indifference to the suffering of the victim and evidences
a sense of pleasure’ in the killing.”14 This court has similarly
noted that “‘depraved’” is “‘marked by debasement, corrup-
tion, perversion, or deterioration.’”15 But the Arizona court’s
definition approved in Walton did not include the word “appar-
ent.” So Walton should not control over our own case law
regarding the similar phrase, “apparent effort to conceal,” in
the former version of aggravator (1)(b).
By analogy to our case law on a murder committed in an
apparent attempt to conceal a crime, a court should not instruct
a jury on the apparent relishing component of aggravator
(1)(d) in speculative circumstances. A trial court should give
the instruction only when the evidence would support a find-
ing that the defendant’s relishing of the murder was obvious. I
believe the facts of this case were too speculative under a test
set forth by the Arizona Supreme Court.
We adopted our exceptional depravity factors from the
Arizona Supreme Court.16 That court has said the following
about its relishing component:
The first factor, that a defendant relishes the murder,
“refers to the defendant’s actions or words that show
debasement or perversion.” State v. Roscoe, 184 Ariz.
484, 500, 910 p.2d 635, 651 (1996). To establish relish-
ing, we usually “require that the defendant say or do
something, other than the commission of the crime itself,
13 See Lotter, supra note 12.
14 Walton, supra note 2, 497 U.S. at 655.
15 See Palmer, supra note 4, 224 Neb. at 318, 399 N.W.2d at 731.
16 See id.
386 	280 NEBRASkA REpoRTS

to show he savored the murder.” Id.; accord State v.
Doerr, 193 Ariz. 56, 67-68, ¶ 54, 969 p.2d 1168, 1179-
80 (1998) (finding that defendant relished murder after
defendant bragged to his cellmate about playing with the
victim’s blood); State v. Detrich, 188 Ariz. 57, 68, 932
p.2d 1328, 1339 (1997) (finding that defendant relished
murder and demonstrated an “abhorrent lack of regard
for human life” based on defendant’s statement to his
co-defendant, “It’s dead, but it’s warm. do you want a
shot at it?”); State v. Jackson, 186 Ariz. 20, 30, 918 p.2d
1038, 1048 (1996) (describing how defendant sang a rap
song both immediately after killing his victim and then
after showing a picture of the victim’s children to his
co-defendant); see [State v.] Clark, 126 Ariz. [428,] 437,
616 p.2d [888,] 897 [(1980)] (finding depravity when
defendant kept a souvenir of his crime).17
But the Arizona Supreme Court concluded that the factor
had not been proved beyond a reasonable doubt when the trial
court found that the defendant reveled in the idea of meting
out his own justice, enjoyed the spectacle the murder created
in front of his friends, and enjoyed the emotional toll caused to
the victim by the defendant’s locking him in a trunk overnight.
The court reasoned that the evidence failed to show the defend-
ant “said or did anything, beyond the commission of the crime
itself, that manifests that he savored the murder.”18
The Arizona Supreme Court’s test is obviously intended to
narrow a jury’s discretion by distinguishing murderers who rel-
ish the act of murdering from those who show indifference to
human life—a definition that would fail to preclude arbitrary
sentencing. Under that test, I do not believe that Sandoval’s
smiling at another customer who had unexpectedly entered the
bank or after he was arrested are affirmative acts or statements
sufficient to support a jury’s finding that he obviously relished
committing the murders, as distinguished from his indifference
to human life. Thus, the court improperly instructed the jury to
17 State v. Murdaugh, 209 Ariz. 19, 31-32, 97 p.3d 844, 856-57 (2004).
18 Id. at 32, 97 p.3d at 857.
STATE v. SANdovAL 	387
Cite as 280 Neb. 309

determine the existence of the exceptional depravity prong of
aggravator (1)(d).
In sum, I concur in the majority’s opinion that the court
should not have instructed the jury on either the heinousness
prong or the exceptional depravity prong of aggravator (1)(d).
But I dissent from its conclusion that the instructions were
harmless error. I believe that these were substantial errors
requiring us to remand the cause to the district court for the
sentencing panel to resentence Sandoval.
The first question is, What is the proper test for determin-
ing whether the instructions on the heinousness and excep-
tional depravity prongs were constitutional error? Before the
U.S. Supreme Court’s 2006 decision in Brown v. Sanders,19
Nebraska was a weighing state for determining whether an
Eighth Amendment violation occurred because the sentencer
considered an invalid aggravator.20 Weighing states were char-
acterized by sentencing schemes that required the sentencing
body to weigh the statutory aggravating circumstances, which
made the defendant eligible for the death penalty, against any
mitigating circumstances supported by the evidence.21 The U.S.
Supreme Court had held that “there is Eighth Amendment error
when the sentencer [in a weighing state] weighs an ‘invalid’
aggravating circumstance in reaching the ultimate decision to
impose a death sentence.”22
In contrast, in nonweighing states, after a jury found at least
one aggravator, the sentencer determined whether to impose
the death penalty by considering all the circumstances from
both the guilt phase and the sentencing phase. Aggravating
factors played no specific role in the sentencer’s decision; the
19 Brown v. Sanders, 546 U.S. 212, 126 S. Ct. 884, 163 L. Ed. 2d 723
(2006).
20 See, Williams, supra note 3; State v. Reeves, 239 Neb. 419, 476 N.W.2d
829 (1991).
21 See, Brown, supra note 19; Stringer v. Black, 503 U.S. 222, 112 S. Ct.
1130, 117 L. Ed. 2d 367 (1992). See, also, Neb. Rev. Stat. § 29-2522
(Reissue 2008).
22 Sochor v. Florida, 504 U.S. 527, 532, 112 S. Ct. 2114, 119 L. Ed. 2d 326
(1992).
388 	280 NEBRASkA REpoRTS

jury’s finding of an aggravating factor only made the defendant
death eligible.23
Before Brown, the Court considered the distinction between
weighing and nonweighing states “of critical importance” in
how an appellate court must review the effect of an aggravat-
ing circumstance that is later declared invalid.24 The critical
difference was the emphasis placed on statutory aggravating
circumstances in weighing states.25 So, in weighing states,
a state appellate court could not just assume that because
other aggravators supported the sentence, the absence of the
invalid aggravator would have made no difference. The weigh-
ing process was considered skewed, and “only constitutional
harmless-error analysis or reweighing at the trial or appellate
level suffices to guarantee that the defendant received an indi-
vidualized sentence.”26
In contrast, in nonweighing states, constitutional error pre-
sumptively occurred in only two circumstances: (1) if the invalid
factor permitted the sentencer to draw adverse inferences from
conduct that is constitutionally protected or irrelevant to sen-
tencing, or that actually militates for a lesser penalty; or (2) if
the invalid eligibility factor allowed the jury to hear evidence
that otherwise would not have been before it.27 And a state
appellate court could determine that the invalid factor would
not have made a difference to the jury’s determination without
engaging in reweighing or harmless error analysis.28
But in Brown, the Court emphasized what evidence the sen-
tencer could have considered without the invalid aggravator in
weighing and nonweighing states. It stated that in weighing
states, the sentencer could not consider the evidence supporting
that aggravator under a different factor, “[s]ince the eligibility
23 See Stringer, supra note 21.
24 Id., 503 U.S. at 232.
25 See, Brown, supra note 19 (Breyer, J., dissenting; Ginsburg, J., joins); id.
(Stevens, J., dissenting; Souter, J., joins); Stringer, supra note 21.
26 Stringer, supra note 21, 503 U.S. at 232.
27 Brown, supra note 19.
28 See Stringer, supra note 21.
STATE v. SANdovAL 	389
Cite as 280 Neb. 309

factors by definition identified distinct and particular aggravat-
ing features . . . .”29 Conversely, it stated that in nonweighing
states, the sentencer could consider this evidence under a dif-
ferent sentencing factor.
But the Court concluded, “This weighing/non-weighing
scheme is accurate as far as it goes, but it now seems to us
needlessly complex and incapable of providing for the full
range of possible variations.”30 It concluded that the distinc-
tion failed to account for the same type of skewing occur-
ring in a nonweighing state if one of the separate sentencing
factors was later declared invalid. But it reasoned that prima
facie claims of skewing in the sentencing factors would be
illusory if “[o]ne of the other aggravating factors, usually an
omnibus factor but conceivably another one, made it entirely
proper for the jury to consider as aggravating the facts
and circumstances underlying the invalidated factor.”31 The
Court concluded:
We think it will clarify the analysis, and simplify the
sentence-invalidating factors we have hitherto applied to
non-weighing States . . . if we are henceforth guided
by the following rule: An invalidated sentencing factor
(whether an eligibility factor or not) will render the sen-
tence unconstitutional by reason of its adding an improper
element to the aggravation scale in the weighing process
unless one of the other sentencing factors enables the
sentencer to give aggravating weight to the same facts
and circumstances.32
It explained that its new rule meant “skewing will occur, and
give rise to constitutional error, only where the [sentencer]
could not have given aggravating weight to the same facts and
circumstances under the rubric of some other, valid sentenc-
ing factor.”33
29 Brown, supra note 19, 546 U.S. at 217.
30 Id., 546 at at 219.
31 Id., 546 U.S. at 220 (emphasis in original).
32 Id. (emphasis in original).
33 Id., 546 U.S. at 221.
390 	280 NEBRASkA REpoRTS

As the 11th Circuit has noted, many courts and commen-
tators that have considered this issue have read Brown as
announcing a uniform rule for weighing and nonweighing
states alike.34 Although the Sixth Circuit has concluded that
Brown only announced a new rule for nonweighing states, it
appears there is an inherent problem in that conclusion. Brown
clearly discarded the previous terminology it had used to dis-
tinguish weighing and nonweighing states. But discarding the
distinguishing terminology is inconsistent with announcing
a new rule only for states formerly known as nonweighing
states. Moreover, it seems to me that limiting the Brown rule
to nonweighing states is refuted by the Court’s analysis of
California’s statutes, which were at issue in Brown.
The Ninth Circuit had held that California is a weighing
state because if a jury found the existence of eligibility factors,
the court instructed it to consider a separate list of sentenc-
ing factors and to weigh only those factors against mitigating
evidence. The Brown majority rejected this conclusion and
classified California as a nonweighing state because one of
the sentencing factors was an omnibus factor that permitted
the jury to consider the “‘circumstances of the crime.’”35 The
Brown majority then rejected the distinction between weighing
and nonweighing jurisdictions altogether:
But leaving aside the weighing/non-weighing dichotomy
and proceeding to the more direct analysis set forth
earlier in this opinion: All of the aggravating facts and
34 See, Jennings v. McDonough, 490 F.3d 1230 (11th Cir. 2007), citing
Spisak v. Mitchell, 465 F.3d 684 (6th Cir. 2006), vacated on other grounds
sub nom. Hudson v. Spisak, 552 U.S. 945, 128 S. Ct. 373, 169 L. Ed. 2d
257 (2007); Slagle v. Bagley, 457 F.3d 501 (6th Cir. 2006); 1 Wayne R.
LaFave, Substantive Criminal Law § 3.5 (2d ed. 2003 & Supp. 2009-10);
and The Supreme Court, 2005 Term—Leading Cases, 120 Harv. L. Rev.
125 (2006). See, also, Clayton v. Roper, 515 F.3d 784 (8th Cir. 2008);
Mitchell v. Epps, No. 1:04Cv865(LG), 2010 WL 1141126 (S.d. Miss.
Mar. 19, 2010); 3 Ronald d. Rotunda & John E. Nowak, Treatise on
Constitutional Law, Substance and procedure § 17.3(c) (4th ed. 2008);
Charles H. Whitebread, The 2005-2006 Term of the United States Supreme
Court: A Court in Transition, 28 Whittier L. Rev. 3 (2006).
35 Brown, supra note 19, 546 U.S. at 222.
STATE v. SANdovAL 	391
Cite as 280 Neb. 309

circumstances that the invalidated factor permitted the
jury to consider were also open to their proper consider-
ation under one of the other factors. The erroneous factor
could not have “skewed” the sentence, and no constitu-
tional violation occurred.36
So I believe that Brown clearly intended to focus the inquiry—
under any type of capital sentencing scheme—on whether the
sentencer could consider the same facts and circumstances
under a different aggravating factor.
Since 2002, under Nebraska’s capital sentencing scheme,
a jury, if not waived, only determines the existence of aggra-
vating circumstances.37 A three-judge panel determines the
existence of mitigating circumstances, weighs aggravating and
mitigating circumstances, conducts a proportionality review,
and determines the sentence.38 We have stated, “‘[T]he death
penalty statutes read as a whole make clear that the sentencing
panel needs to consider evidence of the crime and of aggra-
vating circumstances in order to properly perform its balanc-
ing and proportionality sentencing functions.’”39 And as the
U.S. Supreme Court in Brown noted, one of the reasons that
the weighing/nonweighing distinction has been misleading is
because the Court has held that the sentencer in capital cases
must be allowed to weigh the facts and circumstances of the
crime against the defendant’s mitigating evidence.40
But under the Court’s decision in Ring v. Arizona,41 other
than the finding of a prior conviction, the determination of
aggravating circumstances must be made by a jury unless
waived by the defendant.42 The sentencing panel cannot give
aggravating weight to any circumstance the jury did not find
36 Id., 546 U.S. at 222-23 (emphasis supplied).
37 See Mata, supra note 10.
38 Id.; State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
39 State v. Galindo, 278 Neb. 599, 626-27, 774 N.W.2d 190, 218 (2009),
quoting Hessler, supra note 38.
40 See Brown, supra note 19.
41 Ring, supra note 2.
42 See, e.g., State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
392 	280 NEBRASkA REpoRTS

to exist. So under Brown, when we determine that the court
invalidly instructed the jury on an aggravating circumstance,
the weighing process is unconstitutionally skewed unless the
sentencing panel could have given aggravating weight to the
same evidence under a different aggravating circumstance that
the jury found to exist.
I believe that the evidence before the sentencing panel sup-
porting the mental anguish component of the heinousness prong
and the relishing component of the depravity prong could not
have been considered under any of the remaining aggravating
circumstances found by the jury: i.e., (1) the defendant com-
mitted the murder to conceal the identity of the perpetrator;
(2) the defendant committed another murder at the time of the
murder; (3) the defendant created a great risk of death to at
least several persons. Thus, the weighing process was uncon-
stitutionally skewed.
But Brown “deals only with the threshold matter of deciding
when constitutional error has resulted from reliance on invalid
aggravators, not with how appellate courts can remedy the error
short of resentencing.”43 It “does not bar courts from engaging
in harmless error review.”44 The U.S. Supreme Court has held
that when an Eighth Amendment violation occurs, federal law
does not require a state appellate court to remand for resen-
tencing, but if it does not, it must “either itself reweigh without
the invalid aggravating factor or determine that weighing the
invalid factor was harmless error.”45
But as the majority opinion notes, we have held that appel-
late reweighing violates a defendant’s due process rights under
Nebraska’s capital sentencing scheme.46 We can only conduct
harmless error review or remand the cause to the district court
for resentencing.47 But it appears to me that the majority’s
analysis is a reweighing rather than harmless error review.
43 Jennings, supra note 34, 490 F.3d at 1256.
44 Id.
45 Sochor, supra note 22, 504 U.S. at 532.
46 See State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
47 See id.
STATE v. SANdovAL 	393
Cite as 280 Neb. 309

In State v. Ryan,48 we explained that Chapman v. California49
governs harmless error analysis of constitutional error. Chapman
requires the State to prove beyond a reasonable doubt that the
error did not contribute to the death sentence: 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 reasonable doubt
that the error complained of did not contribute to the [sen-
tence] obtained.’”50
In Ryan, we adopted the Eighth Circuit’s harmless error
standard:
“[T]he issue under Chapman is whether the sentencer
actually rested its decision to impose the death penalty
on the valid evidence and the constitutional aggravating
factors, independently of the vague factor considered;
in other words, whether what was actually and properly
considered in the decision-making process was ‘so over-
whelming’ that the decision would have been the same
even absent the invalid factor.”51
In Ryan, we noted that the sentencing judge’s order indi-
cated that the judge had found facts “to support the application
of either the first or second prong of [aggravator] (1)(d) beyond
a reasonable doubt.”52 We therefore rejected the defendant’s
argument that the sentence was heavily based on the judge’s
finding of exceptional depravity because the same facts over-
whelmingly supported the heinousness prong.53
As discussed, I do not believe that we can reach that con-
clusion here because the jury did not find any other aggravat-
ing circumstance for which the mental anguish and relishing
48 State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995), abrogated on other
grounds, Mata, supra note 10.
49 Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705
(1967).
50 See Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S. Ct. 1792, 100 L.
Ed. 2d 284 (1988), quoting Chapman, supra note 49.
51 Ryan, supra note 48, 248 Neb. at 452, 534 N.W.2d at 796.
52 Id. at 451, 534 N.W.2d at 795 (emphasis in original).
53 See Ryan, supra note 48.
394 	280 NEBRASkA REpoRTS

facts were relevant. So the error is not harmless unless we
can say beyond a reasonable doubt that the sentencer was not
substantially swayed by the error54 because the evidence was
“unimportant in relation to everything else the [sentencer]
considered.”55 In Chapman, the Court stated, “An error in
admitting plainly relevant evidence which possibly influenced
the jury adversely to a litigant cannot . . . be conceived of as
harmless.”56 I do not believe that a substantial error, which
resulted in a sentencing panel’s weighing evidence prejudicial
to the defendant but not validly considered under any aggrava-
tor found by the jury, can be considered harmless.
Here, the evidence supporting the mental anguish and relish-
ing components was highly prejudicial. The State’s expert wit-
ness testified extensively about the agonizing deaths that each
victim would have experienced. And four witnesses testified to
facts relevant to Sandoval’s purported relishing of the murders.
The State also emphasized facts supporting the relishing com-
ponent in its closing argument. The sentencing panel would
have incorrectly relied on this emphasized evidence as validly
supporting the heinousness and depravity prongs of aggravator
(1)(d), and therefore supporting the death penalty.
Under these circumstances, I believe it is insufficient for the
majority opinion to conclude that the evidence supported the
remaining aggravating circumstances and that the sentencing
panel gave little weight to the only mitigating circumstance it
found to exist. I believe that this analysis clearly consists of
reweighing the aggravators and mitigators, instead of conclud-
ing that this evidence did not contribute to the sentence beyond
a reasonable doubt.57
The State has a heavy burden to show harmless error beyond
a reasonable doubt. And the sentencing order provides no
54 See Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed.
1557 (1946).
55 Yates v. Evatt, 500 U.S. 391, 403, 111 S. Ct. 1884, 114 L. Ed. 2d 432
(1991), overruled on other grounds, Estelle v. McGuire, 502 U.S. 62, 112
S. Ct. 475, 116 L. Ed. 2d 385 (1991).
56 Chapman, supra note 49, 386 U.S. at 23-24.
57 Compare Jones v. State, 569 So. 2d 1234 (Fla. 1990).
STATE v. SANdovAL 	395
Cite as 280 Neb. 309

insight that allows us to determine what weight the sentencing
panel gave to this evidence relative to evidence supporting the
other factors. But the majority concedes that the sentencing
panel found each aggravating factor to be “‘significant and
substantial.’” Because of the emphases the State placed on the
impermissible evidence and the sentencing panel’s own state-
ments, I do not believe we can assume the sentencing panel’s
reliance on both prongs of aggravator (1)(d) did not exert a
decisive influence on its sentencing determination and was
therefore harmless beyond a reasonable doubt. I would remand
the cause for resentencing based on the evidence support-
ing the remaining aggravating circumstances and the mitigat-
ing circumstance.
pAtriCiA riChArdSon, SpeCiAl A dminiStrAtor of the eStAte of
C orey riChArdSon, deCeASed, And pAtriCiA riChArdSon,
individuAlly, AppelleeS, v. C hildren’S hoSpitAl
And dr . SCott JAmeS, AppellAntS.
787 N.W.2d 235
Filed July 30, 2010. 	No. S-09-915.
1. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in receiving
or excluding an expert’s testimony which is otherwise relevant will be reversed
only when there has been an abuse of discretion.
2. Rules of Evidence: Expert Witnesses. Neb. Rev. Stat. § 27-702 (Reissue 2008)
allows the admission of expert testimony if scientific, technical, or other spe-
cialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue; a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion
or otherwise.
3. Trial: Evidence: Appeal and Error. To preserve a claimed error in admission of
evidence, a litigant must make a timely objection which specifies the ground of
the objection to the offered evidence.
4. Trial: Expert Witnesses. An objection to the opinion of an expert based upon the
lack of certainty in the opinion is an objection based upon relevance.
5. Evidence: Words and Phrases. Relevant evidence means evidence having any
tendency to make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it would be without
the evidence.
396 	280 NEBRASkA REpoRTS