State v. Yarbrough , 199 Neb. 41 ( 1977 )

Boslaugh, J.

The defendant was originally charged with first degree murder for killing Cathy J. Parker while engaged in a sexual assault in the first degree or in an attempt at such an assault. To this charge the defendant pleaded not guilty and not guilty by reason of insanity.

After the case had been set for trial the defendant and the county attorney entered into a plea bargain in which the charge was reduced to second degree murder in return for the defendant’s agreement to plead guilty. The defendant’s guilty plea was accepted and he was sentenced to imprisonment for 50 years. The defendant has appealed and contends the sentence is excessive.

The defendant is 23 years of age and single. He has an eighth grade education. Psychological tests indicate he has average intelligence. His employment record is poor. His criminal record consists of misdemeanor offenses except for a conviction for burglary in 1975.

On February 6, 1976, the defendant spent the evening in a bar in Fairbury, Nebraska, with the victim and four other companions. The defendant had been smoking marijuana during the day and consumed a large amount of beer and some whiskey during the evening.

After the group left the bar they took the defendant and the victim to her home. The other four persons in the group returned to Lincoln, Nebraska. The defendant and the victim went to the Onyx Hotel in Fairbury where the victim’s body was discovered on the morning of February 7, 1976.

The record is clear that the defendant killed the victim by strangling her sometime after they arrived at the hotel. The defendant admits he killed the vietim, had sexual intercourse with her, spent the night in the room with her, and then had sexual intercourse again in the morning before leaving Fair-bury. The evidence further shows that the defendant was competent to stand trial and was not insane. As noted by the trial court at the time of sentencing, the evidence in this case would sustain a finding of guilty of first degree murder.

As defense counsel points out, the defendant’s life seems to have been ill-fated from the moment of birth. The defendant had an unhappy and sometimes tragic childhood. This history, however, furnishes no justification or reason for leniency in determining the disposition which should be made in this case.

The defendant committed a brutal and vicious crime. The psychiatric evidence indicates he has a chronic sociopathic personality. Whether the defendant can ever be rehabilitated appears doubtful. The protection of society requires that he be incarcerated for a substantial period of time. We find no basis in the record to justify any reduction in the sentence imposed.

The judgment of the District Court is affirmed.

Affirmed.