State v. Trail

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/02/2022 08:05 AM CST
- 843 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843State of Nebraska, appellee, v.
Aubrey C. Trail, appellant.
___ N.W.2d ___
Filed November 10, 2022. No. S-21-557.
1. Pleadings: Parties: Judgments: Appeal and Error. A denial of a
motion to sever will not be reversed unless clear prejudice and an
abuse of discretion are shown, and an appellate court will find such an
abuse only where the denial caused the defendant substantial prejudice
amounting to a miscarriage of justice.
2. Trial: Witnesses. It is for the trial court to determine the extent to which
a sequestration order will be applied in a given case.
3. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial
unless the court has abused its discretion.
4. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
5. Constitutional Law: Statutes: Appeal and Error. The constitutionality
of a statute presents a question of law, which an appellate court indepen-
dently reviews.
6. Sentences: Death Penalty: Aggravating and Mitigating Circum­
stances: Appeal and Error. In reviewing a sentence of death, the
Nebraska Supreme Court conducts a de novo review of the record to
determine whether the aggravating and mitigating circumstances support
the imposition of the death penalty.
7. Constitutional Law: Criminal Law: Jury Trials. The Sixth Amendment
secures to criminal defendants the right to be tried by an impartial jury
drawn from sources reflecting a fair cross-section of the community.
8. Constitutional Law: Juror Qualifications. The fair-cross-section
venire requirement is not explicit in the text of the Sixth Amendment,
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843but is derived from the traditional understanding of how an impartial
jury is assembled.
9. ____: ____. The representativeness constitutionally required at the
venire stage can be disrupted at the jury-panel stage to serve a State’s
legitimate interest.
10. Death Penalty: Juror Qualifications. An adequate voir dire where
jurors are directly involved in sentencing in a capital case entails the
opportunity to inquire into whether the views on the death penalty
would disqualify prospective jurors from sitting.
11. Juror Qualifications. Groups defined solely in terms of shared attitudes
that would prevent or substantially impair members of the group from
performing one of their duties as jurors are not distinctive groups for
fair-cross-section purposes.
12. Constitutional Law: Juror Qualifications: Proof. In order to establish
a prima facie violation of the fair-cross-section requirement under the
Sixth Amendment, a defendant must show (1) that the group alleged
to be excluded is a “distinctive” group in the community, (2) that the
representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the
community, and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury selection process.
13. Juries. An impartial jury is nothing more than jurors who will conscien-
tiously apply the law and find the facts.
14. Death Penalty: Juror Qualifications. Beliefs with respect to the death
penalty are within the individual’s control. Death qualification does not
create an appearance of unfairness, as it only results in the removal for
cause of those jurors who are unwilling to temporarily set aside their
own beliefs in deference to the rule of law.
15. Death Penalty: Juries: Proof. The State has a legitimate interest in
avoiding the burden of presenting the same evidence to different juries
for the guilt phase and the aggravation phase of trial.
16. Constitutional Law: Death Penalty: Juries. The State does not violate
the Sixth Amendment right to an impartial jury by death qualifying the
jury before a trial wherein it has alleged an aggravator that, if found by
the jury, will make the defendant eligible for the death penalty.
17. Equal Protection: Statutes. When a classification created by state
action does not jeopardize the exercise of a fundamental right or catego-
rize because of an inherently suspect characteristic, the Equal Protection
Clause requires only that the classification rationally further a legitimate
state interest.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 84318. Constitutional Law: Death Penalty. The Eighth Amendment and arti-
cle I, §§ 9 and 15, of the Nebraska Constitution are not violated by death
qualification in a capital case.
19. Constitutional Law: Trial: Joinder. There is no constitutional right to
a separate trial.
20. Trial: Joinder: Appeal and Error. Whether offenses were properly
joined involves a two-stage analysis: (1) whether the offenses were suf-
ficiently related to be joinable and (2) whether the joinder was prejudi-
cial to the defendant.
21. Trial: Joinder: Proof: Appeal and Error. A defendant appealing the
denial of a motion to sever has the burden to show compelling, specific,
and actual prejudice.
22. Trial: Joinder. Severe prejudice occurs when a defendant is deprived
of an appreciable chance for an acquittal, a chance that the defendant
would have had in a severed trial.
23. ____: ____. Prejudice from joinder cannot be shown if evidence of
one charge would have been admissible in a separate trial of another
charge.
24. Conspiracy: Hearsay. The coconspirator exception to the hearsay rule
is applicable regardless of whether a conspiracy has been charged in the
information or not.
25. ____: ____. Under the coconspirator exception to the hearsay rule, the
declarant conspirator who partners with others in the commission of a
crime is considered the agent of his or her fellow conspirators, and the
commonality of interests gives some assurance that the statements are
reliable.
26. Conspiracy: Hearsay: Evidence. Whether or not a conspiracy has
been charged in the information, before the trier of fact may consider
testimony under the coconspirator exception to the hearsay rule, a prima
facie case establishing the existence of the conspiracy must be shown by
independent evidence, to prevent the danger of hearsay evidence being
lifted by its own bootstraps.
27. Trial: Witnesses. The exclusion or sequestration of a witness is within
the discretion of the trial court.
28. Trial: Witnesses: Appeal and Error. The denial of a sequestration
motion will not be overturned absent evidence of prejudice to the
defendant.
29. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of trial which
is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 84330. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
cated on the failure to grant a mistrial, the defendant must prove the
alleged error actually prejudiced him or her, rather than creating only
the possibility of prejudice.
31. Jurors: Jury Instructions: Presumptions. Absent evidence to the con-
trary, the legal system presumes that jurors, to the extent they are able,
will comply with curative instructions and judicial admonitions.
32. Motions for New Trial: Statutes. A motion for a new trial is a statutory
remedy and can be granted by a court of law only upon the grounds, or
some of them, provided for by the statutes.
33. Motions for New Trial: Proof. The asserted ground for a new trial must
affect adversely the substantial rights of the defendant, and it must be
shown that the defendant was prejudiced thereby.
34. Courts: Motions for Mistrial: Motions for New Trial: Appeal and
Error. A trial court is vested with considerable discretion in passing on
motions for mistrial and for a new trial, and an appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial or
a motion for new trial unless the court has abused its discretion.
35. Appeal and Error. It is an abuse of discretion to make an error of law
or clear errors of factual determination.
36. Judges: Witnesses: Appeal and Error. The trial judge is better situated
than a reviewing court to pass on questions of witness credibility and the
surrounding circumstances and atmosphere of the trial.
37. Motions for Mistrial. As a general matter, a defendant is not permitted
to profit from the defendant’s own bad conduct by disrupting courtroom
proceedings and then urging disruption as a ground for mistrial.
38. Criminal Law: Motions for Mistrial. Disruptive acts of the defendant
are not irremediable simply because they reflect some attribute consist­
ent with the charged crime.
39. Constitutional Law: Due Process: Criminal Law: Jury Trials: Proof.
The Sixth Amendment right to a speedy and public trial by an impartial
jury, in conjunction with the Due Process Clause, requires that each ele-
ment of a crime be proved to a jury beyond a reasonable doubt.
40. Constitutional Law: Statutes: Death Penalty: Aggravating and
Mitigating Circumstances: Jury Trials. Under a statutory scheme
in which the death penalty cannot not be imposed unless at least one
aggravating factor is found to exist beyond a reasonable doubt, the
Sixth Amendment requires the factual determination of the aggravating
factor be entrusted to the jury.
41. Constitutional Law: Death Penalty: Aggravating and Mitigating
Circumstances: Jury Trials. The Sixth Amendment requires only the
right to a jury determination of the death-eligibility finding of one or
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843more aggravating circumstances and it does not apply to the selec-
tion decision.
42. ____: ____: ____: ____. In a capital sentencing proceeding, just as in
an ordinary sentencing proceeding, a jury is not constitutionally required
to weigh the aggravating and mitigating circumstances or to make the
ultimate sentencing decision within the relevant sentencing range.
43. ____: ____: ____: ____. Nebraska’s sentencing scheme does not vio-
late the Sixth Amendment right to a jury trial or article I, § 6, of the
Nebraska Constitution, by leaving to the three-judge panel the ultimate
life-or-death decision upon making the selection decisions of whether
the aggravating circumstances justify the death penalty and whether
sufficient mitigating circumstances exist that approach or exceed the
weight given to the aggravating circumstances.
44. Constitutional Law: Sentences. The Cruel and Unusual Punishment
Clause prohibits (1) barbaric punishments under all circumstances and
(2) punishments that are not graduated and proportioned to the offense.
45. Constitutional Law: Statutes: Death Penalty: Aggravating and
Mitigating Circumstances. Nebraska’s statutory scheme, delegating
to the three-judge panel determinations of whether the aggravating
circumstances justify the death penalty and whether sufficient miti-
gating circumstances exist that approach or exceed the weight given
to the aggravating circumstances, does not violate the 8th and 14th
Amendments to the U.S. Constitution or article I, § 9, of the Nebraska
Constitution.
46. Sentences: Death Penalty: Appeal and Error. Proportionality review
requires the Supreme Court to compare the aggravating and mitigating
circumstances with those present in other cases in which a district court
imposed the death penalty.
47. Death Penalty: Aggravating and Mitigating Circumstances. The bal-
ancing of aggravating circumstances against mitigating circumstances is
not merely a matter of number counting, but, rather, requires a careful
weighing and examination of the various factors.
48. ____: ____. The death penalty can be imposed when only one aggravat-
ing circumstance is present.
Appeal from the District Court for Saline County: Vicky L.
Johnson, Judge. Affirmed.
Benjamin H. Murray, of Murray Law, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and James D. Smith,
Senior Assistant Attorney General, for appellee.
- 848 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant was convicted by a jury of murder in the
first degree and criminal conspiracy to commit first degree
murder. He was also convicted, pursuant to a plea, of improper
disposal of human skeletal remains. A three-judge panel sen-
tenced the defendant to death. The defendant asserts on appeal
that the three-judge panel erred in determining the sentence
of death was not excessive or disproportionate to the penalty
imposed in similar cases. Alternatively, he argues Nebraska’s
death penalty scheme is unconstitutional because it allows
a panel of judges rather than a jury to make findings of
whether the aggravating circumstances justify the death pen-
alty and whether sufficient mitigating circumstances exist
which approach or exceed the weight given to the aggravating
circumstances. The defendant also challenges the constitution-
ality of death qualifying the potential jurors, arguing that it
creates a conviction-prone jury. Finally, the defendant chal-
lenges the denial of his pretrial motion to sever the conspiracy
and murder charges, the court’s release of the victim’s mother
from sequestration after she testified, the denial of his motion
for a mistrial after a verbal outburst and act of self-harm in
front of the jury, and the denial of a motion for a new trial
after evidence was submitted allegedly demonstrating the self-
harm would not have occurred but for the alleged misconduct
of jail staff. We affirm.
II. BACKGROUND
The State’s amended information charged Aubrey C. Trail
with one count of murder in the first degree, in violation of
Neb. Rev. Stat. § 28-303(1)(a) (Cum. Supp. 2020); one count
of improper disposal of human skeletal remains, in violation
of Neb. Rev. Stat. § 28-1301(2)(b) (Reissue 2016); and one
count of criminal conspiracy to commit first degree murder, in
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843violation of Neb. Rev. Stat. § 28-202 (Cum. Supp. 2020). The
victim was Sydney Loofe (Sydney), who was 24 years old at
the time of her death on or about November 15, 2017.
The operative information gave notice that the State intended
to adduce evidence of the aggravating circumstances (1) that
the murder manifested exceptional depravity by ordinary stan-
dards of morality and intelligence and (2) that Trail has a
substantial prior history of serious assaultive or terrorizing
criminal activity. The State later removed the notice of second
aggravator.
As part of his trial strategy, Trail pled no contest to the
improper disposal of human skeletal remains. His plea was
accepted prior to the beginning of the jury trial on the remain-
ing two counts. The theory of the defense was that Trail was
involved in a consensual sexual relationship with a group of
women. This group always included Bailey Boswell, with
whom Trail lived. The group also at various points included
Ashley Hills, Anastasia Golyakova, and Kaitlyn Brandle. The
defense argued that because Hills and Golyakova had recently
left the group, Trail was hoping Sydney would become a new
member. According to the defense, Sydney was interested in
joining the group and was accidentally killed while the recipi-
ent of consensual erotic asphyxiation. Trail then panicked and
dismembered and disposed of Sydney’s remains.
1. Jury Selection
Before trial, defense counsel moved to “prevent death quali-
fication of the jury.” In the motion, defense counsel objected
to any mention—in the jury questionnaires, during jury selec-
tion, or during the trial of guilt or innocence—of the possible
sentences Trail might receive. Defense counsel asserted that
informing the jury of the possible penalty of death is unneces-
sary and results in excluding those jurors who cannot perform
their duties because of their beliefs on the death penalty.
According to defense counsel, this process results in those
charged with capital offenses being unjustifiably subjected to
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843conviction-prone juries, which violates equal protection under
the 14th Amendment to the U.S. Constitution and article 1,
§ 3, of the Nebraska Constitution; the right under the 6th
Amendment to the U.S. Constitution to a fair and impartial
cross-section of jurors; and the right to heightened reliability
in capital cases as protected by the 8th Amendment to the
U.S. Constitution and article I, §§ 9 and 15, of the Nebraska
Constitution.
As is relevant to this appeal, defense counsel asserted that
“empirical research has demonstrated that the systematic
exclusion of jurors who have a moral objection to the death
penalty results in capital juries that tend to be . . . more
conviction-prone” and that these views are not representative
of a fair cross-section of the community. Further, asking jurors
about their views on the death penalty magnifies the effect of
conviction-prone beliefs. While defense counsel acknowledged
that the U.S. Supreme Court, in Lockhart v. McCree, 1 rejected
a claim that the process of death qualification violates the fair-
cross-section requirement of the Sixth Amendment and the
right to an impartial jury, defense counsel cited in the written
motion to various articles describing additional studies in the
30-plus years since McCree, indicating the process of death
qualification creates conviction-prone juries. No testimony or
other evidence was adduced in support of the motion.
Defense counsel stated that the justification for death quali-
fication presupposes a statutory scheme in which a single jury
determines both the guilt and the penalty. Defense counsel
argued that because in Nebraska, the jury does not deter-
mine the sentence in the penalty phase, informing the jury
of the possible sentence of death serves no legitimate pur-
pose. Accordingly, a potentially conviction-prone jury created
by death qualification cannot pass the heightened scrutiny
allegedly applicable to this conviction-prone classification
of jurors.
1
Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137(1986).
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Nebraska Supreme Court Advance Sheets
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STATE V. TRAIL
Cite as 312 Neb. 843The court overruled the motion and proceeded with voir
dire. During voir dire, defense counsel renewed the objection
to “the death qualification of each individual juror during jury
selection.” The renewed objection was overruled.
Juror questionnaires and the judge’s statement from the
bench during voir dire informed the potential jurors that
the charges Trail faced could result in the death penalty. The
judge explained that the sentence itself would be determined
by a panel of judges, but that if Trail were found guilty of first
degree murder, the jurors would be asked to listen to some
more evidence and determine if the State had proved addi-
tional elements, after which their duty would be done and the
matter would go to the panel of judges for sentencing.
During the jury selection process, jurors Nos. 104 and 126
stated in chambers that their views against the death penalty
would impair their ability to be fair and impartial. Both jurors
were struck for cause on the State’s motion. Defense counsel
did not object to them being excused.
Jurors Nos. 23, 60, 78, 245, 261, and 275 were struck for
cause on defense counsel’s motion because they indicated their
belief in Trail’s guilt would interfere with their ability to be
fair and impartial.
Jurors Nos. 108, 113, and 262 indicated they did not believe
in the death penalty but could perform their factfinding duties
in a fair and impartial manner. Jurors Nos. 113 and 262 were
subject to peremptory challenges, but juror No. 108 was not.
2. Motion to Sever Murder and
Conspiracy Charges
Defense counsel moved pursuant to Neb. Rev. Stat.
§ 29-2002 (Reissue 2016) to sever the trial on the murder
charge from the other charges. As relevant to this appeal,
defense counsel asserted joinder would prejudice Trail because
evidence admissible in support of the conspiracy charge would
not be admissible in support of the murder charge, if those
two charges were tried separately. Defense counsel explained
there would be no evidence proving the conspiracy that would
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843be truly independent of the murder charge. Defense counsel
believed that, because of this, there could be no prima facie
case through independent evidence establishing the existence
of the underlying conspiracy, which is necessary to admit
testimony under the coconspirator exception to the hearsay
rule. The defense argued the State was trying to introduce
hearsay evidence to establish a conspiracy, with its more flex-
ible hearsay rules, and then use that conspiracy to permit the
introduction of otherwise inadmissible hearsay testimony into
evidence to support the murder charge.
The State responded it intended to establish, without “imper-
missible hearsay,” a prima facie case of conspiracy, before
attempting to introduce evidence under the coconspirator
exception to the hearsay rule. The evidence to establish the
conspiracy, explained the State, would primarily consist of
the testimony of Hills, Golyakova, and Brandle, all of whom
Trail had tried to convince to participate in a murder. The State
asserted their testimony would be admissible as evidence of
premeditation on the murder charge and would be introduced
into evidence even if the trial of the conspiracy count were not
joined with the murder count.
The court overruled the motion to sever. However, it warned
the State that “it needs to structure its case to avoid the boot-
strapping problems and that I will be keeping an eye on the
case as it proceeds.”
3. Sequestration and Release
of Sydney’s Mother
Before trial commenced, the court granted defense coun-
sel’s motion to sequester witnesses. Sydney’s mother was the
first witness to testify at trial. After being cross-examined
by defense counsel, the State asked that Sydney’s mother be
released from her subpoena. The State said it would waive
sequestration and would be willing to allow the defense to
call Sydney’s mother out of turn if it wished, so that Sydney’s
mother could be present to watch the remainder of the trial.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843Defense counsel objected. Following a discussion in cham-
bers that was not on record, the court pronounced that it was
releasing Sydney’s mother from sequestration but would allow
the defense to reopen its cross-examination if it wished to do
so. Sydney’s mother was not recalled to testify by either party
after being released from sequestration.
4. Evidence Adduced at Trial
At trial, evidence was adduced that Trail and Boswell moved
into a basement apartment in Wilber, Nebraska, in June 2017.
They had been in a romantic relationship since the summer of
2016. To make money, they sold stolen goods, including sales
at a local antiques market.
(a) Sydney’s Contact With Trail and
Boswell in November 2017
In November 2017, Boswell posed as “Audrey” on an online
dating application (dating app). Boswell began messaging with
Sydney on November 11 and learned that her family lived
hours away from where Sydney lived in Lincoln, Nebraska.
She also learned that Sydney worked as a store clerk at a
Lincoln hardware store. Sydney and Boswell arranged a first
date on November 14. Text messages between them are con-
sistent with arranging a first date. Neither Trail nor any other
third party is mentioned in the text messages.
Sydney initially delayed giving Boswell her address, but
upon further request on the evening of November 13, 2017,
provided it. Within 1 minute of obtaining the address, Boswell
conducted an internet search for its location. Within 5 minutes
of obtaining that information, Boswell made a reservation at a
hotel nearby.
Trail and Boswell checked into that hotel before the first
date. After a couple of hours on their first date, Boswell
returned Sydney home. Sydney did not go to the hotel. Boswell
joined Trail at the hotel, where they again spent the night.
Sydney had accepted a second date with Boswell to occur
on November 15, 2017. On the morning of November 15,
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843Trail and Boswell left the hotel and went to a hardware store
where they purchased dropcloths, a hacksaw, blades, and
tin snips.
Cell phone location information indicated that around the
time Sydney would have left for work, Trail and Boswell
drove to the vicinity of Sydney’s apartment. Trail and Boswell
then took the same route Sydney took to work.
Shortly after Sydney started her shift, Trail entered Sydney’s
workplace alone. Video footage showed that as Sydney walked
toward her station at the “guard shack,” she crossed paths with
Trail, who was walking into the store. Trail did not interact
with Sydney, and she did not appear to recognize Trail. As
Sydney walked away, Trail turned around twice to watch her.
Trail then called Boswell. Trail proceeded into the hardware
store where he purchased a chemical drain cleaner and a
long cord.
Cell phone location information showed that Trail and
Boswell went back to their Wilber apartment while Sydney
was at work. While in Wilber, Boswell made two trips to local
stores. On the first trip, she purchased bleach and large trash
bags. Later, she purchased duct tape and roasting pans.
Throughout the day, Boswell texted Sydney to ask how
her day was going and communicate that she was looking
forward to their date. Sydney left work at the end of her shift
on November 15, 2017. Boswell left the Wilber apartment
around 6 p.m. and picked Sydney up at her apartment around
6:54 p.m.
Trail was at the Wilber apartment. Boswell called Trail
at 7:11 p.m. Cell phone location information indicated that
Sydney arrived at Trail and Boswell’s apartment at approxi-
mately 8 p.m. on November 15, 2017, and that both Trail and
Boswell were present at the apartment at that time. The cell
tower lost all signal from Sydney’s phone at 8:40 p.m.
A resident of the apartment building where Trail and Boswell
lived smelled bleach late that night. The smell of bleach was
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Nebraska Supreme Court Advance Sheets
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STATE V. TRAIL
Cite as 312 Neb. 843so strong that the following day, another resident of the build-
ing became ill from it.
Sydney did not report to work the next day. She was never
seen alive again.
(b) Disposal of Sydney’s Body
and Cause of Death
Cell phone location information indicated that Trail and
Boswell left their apartment the afternoon of November 16,
2017, and traveled to an area in Clay County. On December
4 and 5, after tracing Trail’s and Boswell’s cell phone loca-
tion information, most portions of Sydney’s body were found
in a ditch in the area Trail and Boswell had traveled to on
November 16. The remainder of Sydney’s body, including most
of her internal organs, was never found. Law enforcement also
found duct tape, tarps, a sauna suit with the crotch missing,
gloves, and various items of clothing in the vicinity.
Sydney’s body had been segmented into 14 parts and
placed into garbage bags. An autopsy revealed the manner of
death to be homicidal violence that included an element of
strangulation. The hyoid bone in the neck had been crushed,
there was a scleral hemorrhage in one of her eyes, and there
was petechiae, or “little hemorrhages,” throughout the face,
including in the eyelids and under the eyelids. Scleral hemor-
rhages and petechiae are due to an occlusion of blood flow
and consistent with either manual or ligature strangulation.
When asked whether these signs are “very common in stran-
gulation cases,” the expert responded, “Yes. Manual strangu-
lation, yes.”
Expert testimony introduced by the State reflected that stran-
gulation due to erotic asphyxiation is rare and that a fracture
of the hyoid bone, which resides deep in the neck tissue, is
very uncommon during erotic asphyxiation. Sydney’s body
also showed indications that around the time of death, she
experienced blunt force trauma. This included bruises on the
back of the head and down the middle of her back and a deep
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843bruise into the muscle of her inner thigh. Around the time of
her death, Sydney also suffered a torn earlobe around a pierc-
ing site. Abraded contusions around Sydney’s wrists revealed
evidence of restraints.
The autopsy was complicated by the absence of most of the
organs of Sydney’s torso and abdomen, as well as the absence
of other body parts, such as the upper part of the trachea, wind-
pipe, larynx, and veins and arteries of the neck. These appeared
to have been removed post mortem by use of a sharp blade.
The pathologist did not believe the mutilation of Sydney’s
body was due to animal predation.
In an interview with law enforcement after he was appre-
hended, Trail spoke of draining Sydney’s blood from her body
and being “very thirsty that day.” Numerous superficial post
mortem shallow cuts were found on Sydney’s body. These
included cuts underlining and framing a tattoo on Sydney’s arm
reading, “Everything will be wonderful someday.”
(c) Hills’, Golyakova’s, and Brandle’s
Relationships With Trail and Boswell
From July to November 2017
Before they were called individually to testify, defense
counsel objected at trial to the introduction of the deposition
testimonies of Hills, Golyakova, and Brandle on the grounds
that the State had failed to establish a prima facie case of a
conspiracy through independent evidence. The State responded
that evidence had already been adduced of overt acts of the
conspiracy, such as online dating recruitment, the purchases
at the hardware store the day before the murder, staying at
the hotel, driving by Sydney’s apartment and observing her at
work, and the cell phone evidence linking Trail and Boswell
to Sydney’s murder. The State explained that Sydney’s murder
was part of an overarching conspiracy beginning in July 2017
to kill someone, and to continue killing.
The court ruled that the State had not yet established a prima
facie case for a conspiracy through independent evidence.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843After that ruling, the State introduced, without objection, phys-
ical evidence that Golyakova and Brandle had been inside the
Wilber apartment. The State also introduced the testimony of
law enforcement that its investigation had linked Golyakova
to several stays with Trail and Boswell at a hotel in Falls City,
Nebraska, between July and October 2017. The State then
adduced Hills’ testimony.
(i) Hills’ Testimony and Prima
Facie Case of Conspiracy
Without objection, Hills testified that she met Boswell
through an online dating app in July 2017 and that she met
Trail through Boswell. Boswell used an alias.
Trail told Hills that he could help her get revenge on
an abusive stepfather. He invited Hills to become 1 of 12
other women he claimed were associated with him, whom he
referred to intermittently as “his girls” and “witches.” Trail
showed Hills nude photographs of the alleged witches, but she
never met any of them. Boswell was the “queen witch.” Trail
claimed to be a vampire.
In August 2017, Hills was introduced to Golyakova as a per-
son who Trail said might become “one of us” as a “watcher.”
Trail told Hills that she could leave his “coven” at any point
until she took her first “soul,” which she understood meant to
kill someone and “take their last breath.”
Hills believed Trail. She continued to associate with Trail
and Boswell. She was sexually involved with both. Their
sexual activities involved erotic asphyxiation. Hills had to fol-
low various rules that Trail set for her behavior, such as having
to check in every 3 hours while away from the Wilber apart-
ment, remaining unclothed while in the apartment, and having
to ask permission to do anything, even to use the restroom or
get a drink of water. If she did not follow these rules or oth-
erwise misbehaved, she was physically punished by being hit,
whipped, or choked. Trail paid her an allowance. Hills also
assisted in selling antiques.
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Cite as 312 Neb. 843Hills described a process she observed a few times where
Boswell would start talking to a woman she met through a
dating app and then hand off the communication with that
woman to Trail. If the woman wanted to talk on the phone,
Trail would give the phone to Boswell after giving her a sum-
mary of prior text communications.
Hills stated that in August 2017, while at a grocery store,
Boswell briefly met with a woman she had been communicat-
ing with in that manner. Boswell directed the woman to go
speak with Trail. Trail and the woman spoke for a while before
Trail, Boswell, and Hills left the store. Hills testified that Trail
asked her afterward if she wanted that woman to be her “first
kill.” While Hills responded in the affirmative, she was told a
couple of weeks later that the woman had traveled to California
to visit family. Trail told Hills they “would either save her for
another time or find someone else.”
Trail, Boswell, Hills, and Golyakova went on a vacation
together that August. Shortly thereafter, Trail stated that he
wanted to kill Golyakova. Trail explained Golyakova was too
nice and “didn’t have the evil in her.” A plan was discussed to
do so, but never executed. Trail threatened Hills that he would
kill her family if she ever disclosed his plans.
Hills stated that Trail often spoke of torturing and killing
someone and said that causing pain to someone would make
the killer more powerful. Trail was aroused by the idea of
watching her and Boswell torture someone. He told Hills he
wanted the idea of torturing someone to be arousing for her
and Boswell too. Trail asked Hills to think about ways she
would torture her victim.
In September 2017, Hills told Boswell she wanted out.
Among other reasons, she did not want to kill Golyakova. Hills
moved to another town and had only sporadic contact with
Trail and Boswell thereafter.
During a break in Hills’ testimony, the court found in cham-
bers that the State had provided sufficient evidence to prove a
prima facie case of conspiracy and that “it may now get into
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Cite as 312 Neb. 843the statements of . . . Boswell.” Defense counsel asked if “when
we start getting into the hearsay,” it could have a continuing
objection after making the first objection. The court granted the
continuing hearsay objection, which defense counsel explained
would be for any statements attributable to Boswell.
Hills resumed her testimony. She stated that Trail once
showed her Boswell’s “killing bag.” He had pulled out a ham-
mer, some pliers, and a sauna suit from the bag and showed
them to her. Trail told Hills she would get her own killing bag
“when it was time.” Trail said the sauna suit was so that they
would not get blood on themselves.
(ii) Golyakova
Golyakova testified at trial that in the late summer of 2017,
she met Boswell through a dating app. Boswell initially used
an alias. She was later introduced to Trail by Boswell, who
explained they were in an “open relationship.” She even­
tually entered into a relationship with Trail and Boswell that
was somewhat similar to Hills’, but Boswell was in charge of
punishing her. Also, erotic asphyxiation was apparently not
involved. Golyakova soon told them she was not comfortable
with some of the rules, after which she no longer had to fol-
low them. Golyakova did household chores and assisted in the
antiques enterprise. Golyakova testified that she liked the idea
of someone taking care of her.
Trail spoke to Golyakova about having a coven and spe-
cial powers, but she did not believe him. Golyakova testi-
fied that Trail and Boswell eventually started talking to her
about whether she would be willing to torture and kill some-
one. They told her they wanted to make videos of people
being tortured, which they could sell. Trail and Boswell told
Golyakova that they could make $1 million, split it, and go
their separate ways. They sometimes also discussed murder-
ing someone in a certain manner, “like for sacrifices or some-
thing.” Trail and Boswell assured Golyakova that their victim
would be someone who had done bad things. Golyakova said
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Cite as 312 Neb. 843she was not comfortable hurting anyone, and she left the
group in October.
(iii) Brandle
Brandle testified at trial that she met Boswell through a
dating app in October 2017. Boswell used an alias. Brandle
entered into a relationship with Boswell similar to the others,
except she was more focused on having a romantic relation-
ship with Boswell and did not want anything from Trail. She
understood that she was entering into a dominant-submissive
relationship and that Trail was part of a “package deal,” but
testified that there was no mention of choking. She had not
been in a dominant-submissive relationship before, but she
wanted to be with Boswell and decided to “give it a shot.” She
did not get directly involved in their antiques enterprise.
Brandle said there was some discussion of witches. Trail
told her that she was Boswell’s “familiar” and that they had
known each other in past lives. Trail also mentioned having
a coven of witches that she would meet someday. Trail told
Brandle she could ask for one wish, but she “would have to
pay the price.” Brandle explained that she was skeptical and
did not pursue that line of discussion. She was never told what
the “price” would be.
On November 13, 2017, Boswell complained about another
woman she claimed was stalking her and asked Brandle if
she would ever “kill for her.” During intercourse, while Trail
watched, Boswell asked Brandle if there was anyone she
“wanted to kill.” Boswell also asked Brandle to describe ways
someone could torture someone else. When the intercourse
became uncomfortable and Brandle wanted to stop, Trail told
her that it would stop if Brandle told Boswell what she wanted
to hear. Brandle testified that she tried to describe “torture
techniques” from the “Renaissance era” that she recalled learn-
ing about in school.
Brandle suffered an asthma attack and went back to her
home in Omaha, Nebraska. On the morning of November
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Cite as 312 Neb. 84315, 2017, while Boswell was in the hardware store, Boswell
texted Brandle that she would be busy for the next couple
of days.
Brandle testified that she did not see Trail or Boswell again
until the afternoon of November 17, 2017. Brandle described
that on November 17, Trail and Boswell seemed quieter and
more tense than usual. Trail and Boswell picked Brandle up,
and they went to a hotel casino. Boswell showed Brandle a pic-
ture of a young woman whom she identified as her stalker and
asked Brandle to participate in her murder. Brandle initially
declined, but she accepted the proposition after Trail made
various threatening statements.
After participating in arrangements to leave Boswell’s car in
a store parking lot and taking a cab back to the hotel with the
idea that they would be using Brandle’s car for the supposed
murder they were planning, Trail told Brandle she did not
have to worry about participating anymore, because she had
already proved her loyalty. Trail and Boswell then convinced
Brandle to drive them across Nebraska for a supposed drug
deal. Brandle testified that Trail and Boswell continued to seem
tense and appeared to have quiet arguments.
Brandle testified that eventually either Trail or Boswell
suggested they were going to find someone to torture and
kill, as a way to make money. On November 21, 2017, during
intercourse at a hotel room, Boswell again asked Brandle to
talk about how people could be tortured. Brandle talked about
the same historical torture methods she had the previous time.
Boswell talked about dismembering people.
On November 22, 2017, Trail and Boswell had Brandle
drive them to Kearney, Nebraska. Trail and Boswell explained
they intended to find, as a victim, an exchange student who
was still around during the Thanksgiving holiday. Their
thinking, Brandle explained, was that such a victim would
be unlikely to be immediately missed. The idea was that
Boswell and Brandle would torture and murder the victim
while Trail watched. Brandle stated she tried to stay calm and
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Cite as 312 Neb. 843cooperative because she believed that her family would be
hurt if she did not.
When a law enforcement officer left a voicemail on Brandle’s
phone and Trail was informed of that fact, they all left Kearney
without any further action toward attempting to identify a
potential murder victim. At that point, Trail and Boswell told
Brandle that a young woman was missing and that Boswell
was being falsely blamed because she was the last person seen
with the woman. Boswell cried and insisted she did not hurt
the missing woman.
Trail and Boswell eventually dropped Brandle off at a hotel
close to her home after Brandle learned from law enforce-
ment that her mother had filed a missing person report on
her. Brandle’s mother also informed her that her father was
gravely ill. Brandle told Trail and Boswell she wanted to
return home.
(d) Trail’s Testimony
Trail testified in his own defense. He stated at the outset
that he did not contest 85 percent of the prosecution’s case.
Trail said that in Trail and Boswell’s apartment, he and the
women he was involved with could talk about anything, “from
the mildest to the wildest” and “what you were is what you
were.” He and Boswell were not going to tell anyone they were
“wrong about anything.” He acknowledged “there was a lot of
talk in our house about killing people, torturing people.” Trail
claimed these were just fantasies.
Trail admitted that much, albeit not all, of his inspiration
in his discussions of these fantasies came from a book of fic-
tion about witchcraft where the characters torture people for
power. He did not believe this was true but thought the women
were interested in the discussions. Other discussions about
reincarnation and “spiritual” witches and vampires reflected
his personal beliefs.
Trail claimed that he met Sydney in the spring of 2017
while she was working at the hardware store and that
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Cite as 312 Neb. 843Boswell met her about a week later. Trail described that
Sydney and Boswell developed a romantic relationship and
that Sydney was paid for participation in Trail’s illegal mon-
eymaking schemes. Sydney ended her arrangement with Trail
in September 2017.
Trail testified that in November 2017, Boswell asked Trail if
she could reach out to Sydney through the dating app she was
on. Sydney was upset when Boswell picked her up for their
first date and Sydney realized who her date was. But Boswell
convinced Sydney to consider “coming back and being with
us,” and they arranged a second date. Trail described the items
purchased on November 15 as intended for the repair and
cleaning of antiques.
According to Trail, Sydney went to the Wilber apartment on
the evening of November 15, 2017, to discuss the possibility
of rejoining the group. During that conversation, Trail asked
Sydney to either answer or turn off her phone. Sydney turned
off the phone.
Trail testified that Sydney eventually agreed to experiment
that night with erotic asphyxiation wherein Trail would hold
a cord connected to a ligature while Sydney and Boswell
engaged in sexual intercourse. And during these activities,
Sydney appeared to have a seizure, stopped breathing, and
died. Trail said he did not intend to kill Sydney. He explained
that doing so would be “counter-productive,” because he used
people for sex and to make money.
Trail testified he did not call an ambulance because he had
an extensive criminal history and had illegal drugs and stolen
goods in the apartment. He dismembered Sydney’s body as a
means of fitting it into a trunk to remove it from their apart-
ment without being noticed. He denied removing Sydney’s
internal organs. He dumped the trash bags containing Sydney’s
body in the location where they were eventually discovered by
law enforcement.
Trail described fleeing with Brandle’s assistance, claim-
ing that looking for an exchange student as a potential victim
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Cite as 312 Neb. 843was simply part of a fantasy they never intended to act upon.
Likewise, he claimed the prior discussion with Hills about
killing the woman he met at a store was just a fantasy. In fact,
Trail claimed he told Hills the woman had moved to California
“[b]ecause the crazy bitch wanted to kill her.” He said he was
afraid she would actually do it and wanted to prevent that
from happening.
5. Courtroom Disruption
The trial lasted approximately 3 weeks. On the third day
of trial, around 10:30 a.m., after a witness was sworn in but
before she testified, Trail, seated at the counsel table, yelled,
“[Boswell] is innocent, and I curse you all.”
Immediately thereafter, Trail made a couple of slashing ges-
tures at his neck. Some blood was visible. Trail had secreted
a razor blade into the courtroom and had used it to inflict
wounds to his neck. The jury was immediately cleared from
the courtroom, and law enforcement and medical personnel
took over.
The judge told counsel that trial would be reconvened after
the jury was instructed to “disregard the outburst.” Defense
counsel moved for a mistrial, arguing the jury would be preju-
diced against Trail in determining the aggravator of having
a history of serious assaultive or terrorizing criminal activ-
ity. The court stated it would determine whether a mistrial
was warranted after individually interviewing the members of
the jury.
The court instructed the jury “to disregard the outburst that
you heard this morning and to not consider it in your delibera-
tions at the end of the trial.” Thereafter, each juror was indi-
vidually questioned by the trial judge in chambers with counsel
present. The court generally asked each juror if the juror had
heard the curative instruction and believed he or she could
remain fair and impartial and follow that instruction. Several
jurors were asked if the events of the day affected their ability
to remain a fair and impartial juror.
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Cite as 312 Neb. 843Each juror assured the court that he or she could remain
fair and impartial. The court directed each juror to bring it
to the court’s attention if the juror later came to the conclu-
sion that the juror could no longer be fair and impartial. None
ever did.
The court overruled the motion for mistrial.
6. Motion for New Trial
The jury found Trail guilty of first degree murder and of
conspiracy to commit first degree murder. After the verdict,
defense counsel moved for a new trial on the grounds that
Trail was prevented from having a fair trial due to the court’s
rulings on several issues. However, Trail has only appealed
the denial of his motion as related to defense counsel’s
motion for mistrial following Trail’s verbal outburst and act
of self-harm.
With respect to Trail’s disruption in front of the jury, defense
counsel argued that, but for a lack of security measures, the
incident could have been prevented. This negligence, argued
defense counsel, “contributed to the severity of the event
and elevated it to the level that required a mistrial.” Defense
counsel also argued that the act of violence prejudiced the jury
against Trail inasmuch as it was contrary to the argument that
Trail was incapable of violence.
While the court’s ruling was pending, the State moved to
adduce additional evidence that it argued would show Trail’s
actions were calculated to disrupt the trial. The State asked
that the evidence be under seal, as it involved law enforcement
intelligence, courtroom security, and officer safety. Defense
counsel responded that he did not object and was tentatively
planning on offering the same or similar evidence as newly
discovered evidence in support of the motion for new trial. At a
later date, several exhibits were marked, offered, and received
under seal.
The court ultimately denied the motion for new trial, observ-
ing that Trail had not produced any evidence that the act of
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Cite as 312 Neb. 843self-harm prejudiced him. The court found that the self-harm
was “a calculating gesture resulting in superficial cuts.”
7. Constitutionality of Panel Findings of
Sufficiency and Relative Weight of
Aggravating Circumstances
After the verdict, defense counsel waived Trail’s right to
a jury for the aggravation sentencing phase. Defense counsel
then moved to declare Nebraska’s death penalty statutes uncon-
stitutional, in violation of the Sixth and Eighth Amendments to
the U.S. Constitution and articles 1 through 6 of the Nebraska
Constitution. Defense counsel asserted that the sentencing pan-
el’s factual findings regarding the relative weight of the aggra-
vating and mitigating circumstances are facts increasing the
penalty for a crime beyond the prescribed statutory maximum
and must, therefore, be submitted to a jury. Defense counsel
also argued that Nebraska is an “outlier” by permitting the
determination of the death penalty to be made by a judicial
panel, rather than a jury, and that the “noticeable trend away
from judicial death sentencing” is strong evidence that soci-
ety does not regard such a procedure to be proper or humane.
Finally, according to defense counsel, a determination by a jury
of the relative weight of the aggravators and mitigators is nec-
essary to satisfy the Eighth Amendment’s heightened reliability
standards for capital punishment because the consensus of 12
jurors is less arbitrary and better expresses the conscience of
the community on the ultimate question of life or death. The
trial court treated the motion as a motion to quash and ulti-
mately found that it lacked merit and denied it.
8. Sentencing
Pursuant to Neb. Rev. Stat. § 29-2521(2) (Cum. Supp. 2020),
a sentencing hearing before a three-judge panel was held. The
panel found the State had proved beyond a reasonable doubt
the aggravating factor that the murder manifested exceptional
depravity by ordinary standards of morality and intelligence.
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Cite as 312 Neb. 843This was supported by the fact that Sydney’s murder reflected
cold, calculated planning beyond the mere premeditation nec-
essary to support a conviction of first degree murder.
The panel also found to be present four out of the five factors
for a finding of exceptional depravity: (1) apparent relishing of
the murder by the killer, (2) infliction of gratuitous violence on
the victim, (3) needless mutilation of the victim, (4) senseless-
ness of the crime, or (5) helplessness of the victim. 2 The panel
explained that the mutilation of Sydney’s body made it impos-
sible to determine if Trail had inflicted upon Sydney gratuitous
violence beyond that necessary to inflict death, but all of the
other four factors were present. First, Trail’s actions before and
after the murder demonstrated he relished the act, having no
regard for Sydney’s life beyond his own pleasure. Second, the
needless mutilation of Sydney’s body demonstrated that Trail
had a mental state “senselessly bereft of any regard for human
life.” Third, noting that Sydney posed no threat to Trail and
Boswell, had no idea she was being led to an encounter with a
“man twice her size,” and was unable to defend herself or seek
help at the time of the murder, the panel found that Sydney
was a helpless victim. For similar reasons, the panel found that
her murder was completely unnecessary and senseless. Further,
the panel found that Trail had the capacity to appreciate the
wrongfulness of his conduct and to conform his conduct to
the requirements of the law.
The panel found no statutory mitigating factor or circum-
stances existed. The only statutory mitigating factor alleged by
Trail was that the “victim was a participant in the defendant’s
conduct or consented to the act,” as set forth in Neb. Rev. Stat.
§ 29-2523(2)(f) (Cum. Supp. 2020). The panel found this miti-
gating circumstance did not exist.
As a nonstatutory mitigating circumstance, the panel rec-
ognized Trail’s bad childhood and disadvantaged upbringing.
His parents left him when he was 2 years old, after which
2
State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
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Cite as 312 Neb. 843time he lived for several years with grandparents who “had a
poor attitude toward the law.” When his mother later married,
Trail was adopted by his stepfather, who was abusive. Trail
spent his teenage years in troubled environments, including
a juvenile detention facility. He was incarcerated for the first
time at age 17 and has spent most of his life incarcerated or
on parole.
In weighing the aggravating circumstance against the exist-
ing nonstatutory mitigating factor, the panel found that—given
the degree of cold, calculated planning; the relishing of the
murder; and the mutilation of the victim, all demonstrating an
“extreme depravity in the mind of . . . Trail”—the aggravating
circumstance was entitled to great weight. The panel found
the weight of the nonstatutory mitigating circumstance of
Trail’s bad childhood and disadvantaged upbringing “does not
approach or exceed the weight of the overwhelming evidence
supporting the aggravating circumstance of exceptional deprav-
ity found in this case.”
Finally, the panel found in its review under Neb. Rev. Stat.
§ 29-2522(3) (Cum. Supp. 2020) that the sentence of death
would not be excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant. It noted cases such as State v. Torres, 3 State v.
Joubert, 4 State v. Moore, 5 and State v. Williams. 6
For his conviction of first degree murder, the panel sen-
tenced Trail to death. The presiding judge sentenced Trail
to 2 years’ incarceration for the improper disposal of human
skeletal remains and to 50 years’ incarceration for conspiracy
to commit first degree murder, both to run consecutively
to the murder conviction. Trail, represented by trial coun-
sel, appeals.
3
State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
4
State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
5
State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
6
State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
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Cite as 312 Neb. 843III. ASSIGNMENTS OF ERROR
Trail assigns that the district court erred in (1) “death
qualifying” the jury; (2) denying his pretrial motion to sever;
(3) allowing an identified witness to remain in the courtroom
during trial, in violation of the court’s own sequestration
order; (4) denying his motion for mistrial; and (5) denying his
motion for new trial. He also assigns that the sentencing panel
erred when balancing the aggravating circumstances against
the mitigating circumstances and by concluding that his case
merits death when compared to similar cases. He asserts that
Nebraska’s death penalty statutory scheme violates the Sixth
and Eighth Amendments to the U.S. Constitution and articles
1 through 6 and 1 through 9 of the Nebraska Constitution,
because it permits judges, not juries, to make the factual find-
ings necessary to impose death sentences.
IV. STANDARD OF REVIEW
[1] A denial of a motion to sever will not be reversed unless
clear prejudice and an abuse of discretion are shown, and an
appellate court will find such an abuse only where the denial
caused the defendant substantial prejudice amounting to a mis-
carriage of justice. 7
[2] It is for the trial court to determine the extent to which a
sequestration order will be applied in a given case. 8
[3] An appellate court will not disturb a trial court’s deci-
sion whether to grant a motion for mistrial unless the court has
abused its discretion. 9
[4] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not be
disturbed. 10
7
State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
8
State v. Swillie, 218 Neb. 551, 357 N.W.2d 212 (1984).
9
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
10
State v. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).
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Cite as 312 Neb. 843[5] The constitutionality of a statute presents a question of
law, which an appellate court independently reviews. 11
[6] In reviewing a sentence of death, the Nebraska Supreme
Court conducts a de novo review of the record to determine
whether the aggravating and mitigating circumstances support
the imposition of the death penalty. 12
V. ANALYSIS
On direct appeal, Trail challenges the denial of his pretrial
motions to prevent death qualification of the jury and to sever
the conspiracy and murder charges. He argues that the district
court erred during trial by releasing the victim’s mother from
sequestration after she testified and by denying his motion
for a mistrial based on his verbal outburst and self-harm. He
asserts that, after trial, the court erred in denying his motion
for a new trial based on that same incident. Finally, Trail
asserts the Nebraska death penalty statutes under which he
was sentenced are unconstitutional. Alternatively, he asserts
the three-judge panel erred in determining the sentence of
death was not excessive or disproportionate to the penalty
imposed in similar cases. We address each of these arguments
in turn.
1. Death Qualification
Trail argues the district court abused its discretion in inform-
ing the venire the death penalty was a potential sentence,
which led to questioning potential jurors about their ability to
remain fair and impartial despite their views on the death pen-
alty, which led to removing jurors for cause when they could
not remain fair and impartial. In other words, he challenges the
death qualification of the jury.
Trail asserts the exclusion of prospective jurors who were
opposed to capital punishment subjected him to a trial before
11
State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
12
State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
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Cite as 312 Neb. 843a more “conviction-prone” 13 jury than he would have had
without death qualification. He does not necessarily take issue
with the premise that views on capital punishment can interfere
with certain potential jurors’ ability to perform their duties, but
claims death qualification is unnecessary in Nebraska because
jurors do not impose the sentence. He claims the jury can
remain unbiased without death qualification because “it is pos-
sible to keep the issue of the death penalty out of the jurors’
minds all together.” 14
While Trail acknowledges Neb. Rev. Stat. § 29-2006(3)
(Cum. Supp. 2020) states that having opinions “such as to pre-
clude [a juror] from finding the accused guilty of an offense
punishable with death” is good cause to challenge the juror,
he describes this as a “relic from a time period in Nebraska
history during which it was widely known that the penalty for
murder was a mandatory death sentence.” 15 Trail asserts unnec-
essary death qualification violates the heightened reliability
standard applicable to capital cases under the 8th Amendment
to the U.S. Constitution and article I, §§ 9 and 15, of the
Nebraska Constitution; equal protection principles embodied in
the 14th Amendment to the U.S. Constitution and article I, § 3,
of the Nebraska Constitution; and the 6th Amendment right to
a jury trial.
(a) Sixth Amendment
The Sixth Amendment provides in pertinent part: “In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed . . . .”
The 6th Amendment is applicable to the States through the
14th Amendment.
13
Brief for appellant at 20.
14
Id. at 16.
15
Id. at 17-18.
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Cite as 312 Neb. 843[7-9] The Sixth Amendment secures to criminal defendants
the right to be tried by an impartial jury drawn from sources
reflecting a fair cross-section of the community. 16 The fair-cross-
section venire requirement is not explicit in the text of the Sixth
Amendment, but is derived from the traditional understanding
of how an “impartial jury” is assembled. 17 The Constitution
presupposes that a jury selected from a fair cross-section of the
community is impartial. 18 The “‘representativeness’” constitu-
tionally required at the venire stage can be disrupted at the jury-
panel stage to serve a State’s “‘legitimate interest.’” 19
The U.S. Supreme Court has produced a body of case law
under the Sixth Amendment holding the State has a legitimate
interest in death qualifying juries that are directly involved in
capital sentencing. It has not addressed death qualification out-
side of that context.
The Court has expressly declined to conclude, as a matter of
judicial notice or on the records presented to it, that, in the con-
viction phase of trial, the exclusion of jurors opposed to capital
punishment results in an unrepresentative jury on the issue of
guilt or substantially increases the risk of conviction. 20 Even
assuming without deciding death qualification “‘slants’” 21 the
jury in favor of conviction, the Court has repeatedly held it
serves a proper purpose to exclude jurors whose views on capi-
tal punishment interfere with their ability to obey their oath
during the sentencing phase of trial. 22
16
Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249(2010).
17
Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905(1990).
18
Lockhart v. McCree, supra note 1.
19
Holland v. Illinois, supra note 17, 493 U.S. at 483.
20
Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776(1968).
21
Lockhart v. McCree, supra note 1, 476 U.S. at 179.
22
See Lockhart v. McCree, supra note 1.
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Cite as 312 Neb. 843The Court has explained there must be a balance between
the interests of the defendant and of the State in a capital case.
While a criminal defendant has the right to an impartial jury
drawn from a venire that has not been “tilted” 23 in favor of
capital punishment by selective prosecutorial challenges for
cause, the State has a strong interest in having jurors who are
able to apply capital punishment within the framework state
law prescribes. To balance these interests, a juror who is sub-
stantially impaired in the ability to impose the death penalty
can be excused by the State for cause while a juror who is not
thereby substantially impaired cannot be excused for cause. 24
Similarly, a juror who is substantially impaired in the ability to
choose life imprisonment can be excused by the defendant for
cause, while a juror who is in favor of the death penalty but
who is not thereby substantially impaired cannot be excused
for cause. 25
[10] In order to meaningfully effectuate these constitutional
protections, there must be an adequate voir dire. 26 The U.S.
Supreme Court has held that in a capital case where the jury
is directly involved in sentencing, this entails the opportunity
to inquire into whether views on the death penalty would dis-
qualify prospective jurors from sitting. 27 General questions
as to prospective jurors’ ability to remain fair and impartial
and to follow the law are inadequate substitutes for more spe-
cific questions, when requested, as to whether the jurors are
“unalterably in favor of, or opposed to, the death penalty in
every case.” 28
23
Uttecht v. Brown, 551 U.S. 1, 9, 127 S. Ct. 2218, 167 L. Ed. 2d 1014(2007).
24
Id.25
See, Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492(1992); Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80(1988).
26
See id. See, also, Lockhart v. McCree, supra note 1.
27
See Morgan v. Illinois, supra note 25.
28
Id., 504 U.S. at 735.
- 874 -
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Cite as 312 Neb. 843In Lockhart v. McCree, 29 the Supreme Court held that even
though death qualification is more directly pertinent to the
penalty phase, it did not violate the Sixth Amendment to death
qualify a jury before the guilt phase of a capital trial. The
Court said in Witherspoon v. Illinois 30 that the State “crossed
the line of neutrality” by systematically excluding for cause
members of the venire who had general scruples against capital
punishment but who could nevertheless obey their oaths 31 and
said that culling all jurors “who harbor doubts about the wis-
dom of capital punishment,” but who were nevertheless capa-
ble of obeying their oath, produces a jury that does not “speak
for the community” and is “uncommonly willing to condemn
a man to die.” 32 The Court in McCree pointed out its state-
ments in Witherspoon were in the context of a system where
the jury had considerable discretion at sentencing. Regardless,
McCree explained a narrower elimination for cause of jurors
who are unable to apply the law to the facts because of their
beliefs on capital punishment does not similarly cross the line
of neutrality. 33
[11,12] Even assuming for purposes of its opinion that death-
qualified juries are “somewhat more ‘conviction-prone,’” 34 the
Court in McCree explained that “groups defined solely in terms
of shared attitudes that would prevent or substantially impair
members of the group from performing one of their duties as
jurors . . . are not ‘distinctive groups’ for fair-cross-section
29
Lockhart v. McCree, supra note 1.
30
Witherspoon v. Illinois, supra note 20.
31
Id., 391 U.S. at 520. See Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65
L. Ed. 2d 581 (1980). See, also, Gray v. Mississippi, 481 U.S. 648, 107 S.
Ct. 2045, 95 L. Ed. 2d 622 (1987); Wainwright v. Witt, 469 U.S. 412, 105
S. Ct. 844, 83 L. Ed. 2d 841 (1985).
32
Id., 391 U.S. at 520, 521. See, also, Adams v. Texas, supra note 31; Gray
v. Mississippi, supra note 31; Wainwright v. Witt, supra note 31.
33
Lockhart v. McCree, supra note 1.
34
Id., 476 U.S. at 173.
- 875 -
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Cite as 312 Neb. 843purposes.” 35 In order to establish a prima facie violation of the
fair-cross-section requirement under the Sixth Amendment, a
defendant must show (1) that the group alleged to be excluded
is a “distinctive” group in the community, (2) that the represen-
tation of this group in venires from which juries are selected
is not fair and reasonable in relation to the number of such
persons in the community, and (3) that this underrepresentation
is due to systematic exclusion of the group in the jury selec-
tion process. 36
[13,14] The Court reiterated an impartial jury is “nothing
more than jurors who will conscientiously apply the law and
find the facts.” 37 “[I]t is simply not possible to define jury
impartiality, for constitutional purposes, by reference to some
hypothetical mix of individual viewpoints.” 38 Also, the Court
noted the same allegedly conviction-prone individuals could
end up on the defendant’s jury through “‘luck of the draw.’”
It did not “understand the logic of the argument that a given
jury is unconstitutionally partial when it results from a state-
ordained process, yet impartial when exactly the same jury
results from mere chance.” 39 Beliefs with respect to the death
penalty, said the Court, are within the individual’s control.
Death qualification does not create an appearance of unfair-
ness, as it only results in the removal for cause of those jurors
who are unwilling “to temporarily set aside their own beliefs in
deference to the rule of law.” 40
Death qualification before the guilt phase, said the Court,
serves a legitimate state interest in obtaining a single jury
35
Id., 476 U.S. at 174.
36
Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).
37
Lockhart v. McCree, supra note 1, 476 U.S. at 178 (internal quotation
marks omitted).
38
Id., 476 U.S. at 183.
39
Id., 476 U.S. at 178.
40
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Cite as 312 Neb. 843that can properly and impartially apply the law to the facts
of the case at both the guilt and sentencing phases of a
capital trial. 41 Given that much of the same evidence would
be presented at both phases of the capital trial, it served
the interests both of the prosecution and of the defense to
avoid the burden of having to present the evidence and tes-
timony twice. 42 This is balanced against the fact that there is
less concern during the conviction stage of the effect of an
imbalanced jury. The Court explained, “[J]ury discretion is
more channeled” in its more traditional role of finding the
facts and determining the guilt or innocence of a criminal
defendant. 43
In Buchanan v. Kentucky, 44 the Court extended its rationale
from McCree to hold that the constitutional rights of a non-
capital defendant were not violated by death qualification of
the jury before the guilt phase of a joint trial with a capital
codefendant. The Court said the state has a significant interest
in having a joint trial of defendants when the crimes charged
arise out of one chain of events. The joint trial may benefit
the noncapital defendant as well. 45 In joint trials, the “jury
obtains a more complete view of all the acts underlying the
charges than would be possible in separate trials” and “may
be able to arrive more reliably at its conclusions regarding
the guilt or innocence of a particular defendant and to assign
fairly the respective responsibilities of each defendant in the
sentencing.” 46 Furthermore, the State has a genuine interest in
avoiding the burden of presenting the same evidence to different
41
See Lockhart v. McCree, supra note 1.
42
See id.43
Id., 476 U.S. at 183.
44
Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336(1987).
45
See id.46
Id., 483 U.S. at 418.
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Cite as 312 Neb. 843juries for different defendants charged with crimes arising from
the same events. 47
The Court said in Buchanan that these interests in a joint
trial, combined with the interest discussed in McCree in
having the same jury for the guilt and penalty phases of a
capital defendant’s trial, “argue[] strongly in favor of permit-
ting ‘death qualification’ of the jury.” 48 It also reiterated that
any concern about the possible effect of an allegedly imbal-
anced jury was not present because of the limited nature of
the jury’s discretion in the trial, which was generally more
“channeled than at a capital-sentencing proceeding.” 49 At sen-
tencing, under the statutory scheme at issue in Buchanan, the
jury’s sentence was limited to specific statutory sentences and
subject to review by the judge. In light of the presupposition in
Buchanan that jury members selected from a fair cross-section
of the community are impartial so long as they can properly
carry out their duties, as well as the State’s significant interests
in the joint trial, the Court held there was no violation of the
noncapital defendant’s 6th and 14th Amendments right to an
impartial jury.
Trail correctly points out that a panel of judges, rather than
the jury, decides the defendant’s punishment in capital cases
in Nebraska. 50 This has long been true. Accordingly, we have
acknowledged the death-qualification case law of the U.S.
Supreme Court is factually distinguishable; the juries in those
cases ultimately determined the sentence. 51 Nonetheless, we
have not been persuaded that this factual distinction is deter-
minative of Sixth Amendment challenges in capital cases in
Nebraska where juries have decided if any of the alleged
47
Id.48
Id., 483 U.S. at 419-20.
49
Id., 483 U.S. at 420.
50
See 1973 Neb. Laws, L.B. 268.
51
See, State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987); State v.
Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).
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Cite as 312 Neb. 843aggravating circumstances were proved beyond a reasonable
doubt. 52 In this context, we have specifically rejected the
argument that it is unconstitutional to death qualify juries in
capital cases in Nebraska because those juries do not ultimately
decide if the sentence shall be life or death. 53 Instead, we have
repeatedly held under the Sixth Amendment that it is permis-
sible to determine during voir dire whether jurors’ views on
capital punishment would prevent or substantially impair their
ability to impartially apply the law to the evidence—and to
exclude them for that reason. 54
Our case law on death qualification has not explicitly
addressed the argument raised by Trail in this appeal that the
State lacks a legitimate interest in death qualifying the venire
because it can ensure jurors’ beliefs will not interfere with
their duties by never telling them they are sitting in a capital
case. This novel argument does not cause us to question our
prior holdings.
We cannot, as Trail implicitly suggests, presume potential
jurors come to the jury pool ignorant of the law. To the con-
trary, jurors, as citizens of this state, are presumably aware the
law provides for the death penalty as a possible punishment
for murder under certain circumstances. And the circumstances
making the death penalty a legal possibility are likely to
become apparent during the course of the State’s presentation
of the evidence at trial. While the jurors will not know with
certainty whether the State has in fact alleged an aggravator in
any given case, they will not have the level of ignorance Trail
believes possible.
52
See id. 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); State v. Hankins,
232 Neb. 608, 441 N.W.2d 854 (1989); State v. El-Tabech, 225 Neb. 395,
405 N.W.2d 585 (1987); State v. Peery, 223 Neb. 556, 391 N.W.2d 566(1986); State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986); State v.
Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984); State v. Williams, supra
note 6.
53
Id.54
See id.- 879 -
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Cite as 312 Neb. 843[15] Even if the jurors could be sufficiently ignorant of the
capital implications of a conviction at the guilt phase of trial,
once they are asked to determine if the State has proved an
aggravating circumstance beyond a reasonable doubt, any juror
knowledgeable of the law will understand it is a capital case.
And just as the U.S. Supreme Court has described the State’s
interest in having the same jury for the guilt and sentencing
phases and jointly trying a capital defendant and a noncapital
defendant in charges arising out of the same events, the State
has an interest in having the same jury determine both the
defendant’s guilt or innocence and the alleged aggravating
circumstances that, if found, will permit a three-judge panel
to impose the death penalty. The State has a legitimate inter-
est in avoiding the burden of presenting the same evidence to
different juries for the guilt phase and the aggravation phase
of trial. Thus, the State has an interest in determining at voir
dire whether any jurors will be unable to perform their duties
at the aggravation phase of the trial. In other words, the State
has a legitimate interest in death qualifying juries in capital
cases in Nebraska.
There is a presupposition that a jury selected from a fair
cross-section of the community is impartial despite a mix of
viewpoints. Groups defined by belief systems that substan-
tially impair persons from performing their duties as jurors are
not distinctive groups for fair-cross-section purposes. Even if
we assume the result of death qualification is a slightly more
conviction-prone jury, the State has a legitimate interest in
eliminating from the venire those jurors who cannot carry out
their duties because of their views. When the death penalty
cannot be imposed before the jury decides if an aggravating
circumstance exists, then the State has a reason to question
whether views on the death penalty will interfere with that
task, and to question the venire accordingly. Moreover, jurors’
discretion is much more channeled during the guilt and aggra-
vation stages of trial than at the ultimate sentencing hearing by
the three-judge panel.
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Cite as 312 Neb. 843[16] We hold that the State does not violate the Sixth
Amendment right to an impartial jury by death qualifying the
jury before a trial wherein it has alleged an aggravator that,
if found by the jury, will make the defendant eligible for the
death penalty. Although Trail ultimately waived his right to a
jury determination of the alleged aggravator, he did so only
after the verdict and after the district court rejected his chal-
lenges to death qualification.
(b) Equal Protection
[17] We also disagree with Trail’s argument that death qual-
ification in Nebraska violates equal protection. The Nebraska
Constitution and the U.S. Constitution have identical require-
ments for equal protection challenges. 55 The Equal Protection
Clause of the 14th Amendment, § 1, mandates that no state
shall “deny to any person within its jurisdiction the equal
protection of the laws.” This clause does not forbid classifi-
cations; it simply keeps governmental decisionmakers from
treating differently persons who are in all relevant aspects
alike. 56 When a classification created by state action does not
jeopardize the exercise of a fundamental right or categorize
because of an inherently suspect characteristic, the Equal
Protection Clause requires only that the classification ratio-
nally further a legitimate state interest. 57 In equal protection
challenges, the burden is on a defendant to “‘prove the exis-
tence of purposeful discrimination.’” 58
Trail asserts death qualification creates a classification
between capital defendants and noncapital defendants when
it subjects capital defendants to allegedly conviction-prone
55
Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007).
56
Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013).
57
Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., supra note 55.
58
Batson v. Kentucky, 476 U.S. 79, 93, 106 S. Ct. 1712, 90 L. Ed. 2d 69(1986).
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Cite as 312 Neb. 843juries that noncapital defendants do not have. He asserts that
because jurors can be kept in ignorance of the capital implica-
tions of their factfinding, such classification does not ratio-
nally further a legitimate state interest. Trail has not proved
purposeful discrimination.
We have already rejected Trail’s argument that the jury
can effectively be suspended in ignorance of the possibility
of the death penalty. And we note that in McCree, the U.S.
Supreme Court implicitly disagreed with the idea that the
death qualification of a jury is subject to heightened scrutiny. 59
The Court explicitly distinguished the exclusion of jurors who
have decided that their personal views would not allow them
to impose the death penalty from prior cases finding unconsti-
tutional the wholesale exclusion of individuals of a particular
skin color, ethnic heritage, or gender.
As discussed, the State is entitled to a jury that is capable
of performing its duties. Excluding prospective jurors based
on voluntary belief systems that render them unable to per-
form their duties does not create an appearance of unfairness.
For purposes of inquiry into views on capital punishment,
capital cases and noncapital cases are different. Views on
capital punishment are relevant to the ability of jurors to obey
their oaths in capital cases. We find no merit to Trail’s argu-
ment that death qualification of the jury violated his rights to
equal protection.
(c) Heightened Reliability Under Eighth Amendment
to U.S. Constitution and Article I, §§ 9 and 15,
of Nebraska Constitution
Trail makes one conclusory statement that death qualifica-
tion violates the heightened reliability required by the Eighth
Amendment to the U.S. Constitution and article I, §§ 9 and
15, of the Nebraska Constitution. Conclusory assertions unsup-
ported by coherent analytical argument fail to satisfy the
59
See Lockhart v. McCree, supra note 1.
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Cite as 312 Neb. 843requirement of arguing an assigned error to obtain consider-
ation by an appellate court. 60
[18] In the absence of analytical support, we hold the
Eighth Amendment and article I, §§ 9 and 15, of the Nebraska
Constitution are not violated by death qualification in a
capital case. We note the U.S. Supreme Court’s opinion in
Witherspoon, which, as discussed, set constitutional limits on
excusing jurors for cause because of their beliefs on capital
punishment, was based in the Sixth Amendment and nowhere
implied the Eighth Amendment is implicated. 61 The Eighth
Amendment states: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punish-
ments inflicted.” The 14th Amendment applies those restric-
tions to the States. 62 Under article I, § 9, of the Nebraska
Constitution:
All persons shall be bailable by sufficient sureties,
except for treason, sexual offenses involving penetration
by force or against the will of the victim, and murder,
where the proof is evident or the presumption great.
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted.
Article I, § 15, states all penalties shall be proportioned to
the nature of the offense. Under the Eighth Amendment, “the
qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the
capital sentencing determination.” 63 None of these provisions
are violated by the process of death qualifying the jury so that
the members of the venire are capable of performing their
duties despite their personal views on capital punishment.
60
See State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
61
See Witherspoon v. Illinois, supra note 20.
62
Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014).
63
Calwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 86 L. Ed. 2d
231 (1985) (internal quotation marks omitted).
- 883 -
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Cite as 312 Neb. 843(d) § 29-2006(3) Applicable Only
to Capital Indictments
In the course of arguing the district court erred in death
qualifying the jury, Trail asserts that § 29-2006(3) is inappli-
cable because, on the information alone, he was not eligible for
the death penalty. Section 29-2006(3) states:
The following shall be good causes for challenge to
any person called as a juror or alternate juror, on the trial
of any indictment: . . . (3) in indictments for an offense
the punishment whereof is capital, that his opinions are
such as to preclude him from finding the accused guilty
of an offense punishable with death . . . .
According to Trail, this is not a trial, described by § 29-2006(3),
“in indictments for an offense the punishment whereof is capi-
tal” because the death penalty was only a sentencing option
upon the State’s noticing and proving, after the merits phase,
additional facts at an aggravation hearing.
But Trail does not appeal the district court’s excusal of any
potential juror for cause under § 29-2006(3), and the State’s
interest in and constitutionality of death qualification does not
depend upon a statutory provision. Therefore, we need not
address Trail’s unique view that he was not charged with “an
offense the punishment whereof is capital” for purposes of
§ 29-2006(3) because the matters making him death eligible
were determined after the merits phase of the trial. Regardless
of whether that was the case, Trail was given timely notice
in the information that the State was planning on proving an
aggravating circumstance and the district court did not err in
death qualifying the jury for Trail’s trial.
2. Motion to Sever Murder
and Conspiracy Charges
Having found no merit to Trail’s challenges to death qualifi-
cation of the jury, we turn to his assignment that the court erred
by refusing to sever the trials on the charges for first degree
murder and conspiracy to commit first degree murder.
- 884 -
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Cite as 312 Neb. 843[19,20] There is no constitutional right to a separate trial. 64
Instead, the joinder or separation of charges for trial is gov-
erned by § 29-2002, which states, in relevant part:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors, or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
....
(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint . . . the court may order an
election for separate trials of counts, indictments, infor-
mations, or complaints, grant a severance of defendants,
or provide whatever other relief justice requires.
In summary, whether offenses were properly joined involves a
two-stage analysis: (1) whether the offenses were sufficiently
related to be joinable and (2) whether the joinder was prejudi-
cial to the defendant. 65 There is a strong presumption against
severing properly joined counts. 66
[21-23] Trail does not contest that the offenses were suf-
ficiently related to be joinable, but, rather, he asserts the join-
der was prejudicial. A denial of a motion to sever will not be
reversed unless clear prejudice and an abuse of discretion are
shown, and an appellate court will find such an abuse only
where the denial caused the defendant substantial prejudice
amounting to a miscarriage of justice. 67 A defendant appealing
the denial of a motion to sever has the burden to show compel-
ling, specific, and actual prejudice. 68 Severe prejudice occurs
64
State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
65
Id.66
Id.67
State v. Henry, supra note 7.
68
State v. Benson, supra note 64.
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Cite as 312 Neb. 843when a defendant is deprived of an appreciable chance for an
acquittal, a chance that the defendant would have had in a sev-
ered trial. 69 Prejudice from joinder cannot be shown if evidence
of one charge would have been admissible in a separate trial of
another charge. 70
Trail argues he was prejudiced by the joinder because “it
is likely that all the evidence that might have been admissible
in a trial of either [the murder count or the conspiracy count]
tried separately would not have been admissible if Count
I, Murder in the First Degree were tried separately.” 71 Trail
does not point out which specific statements were entered
into evidence by virtue of the joinder, which would have been
inadmissible otherwise. Rather, he generally asserts the State
was allowed to introduce hearsay evidence to establish a con-
spiracy, lifting the conspiracy “‘by its own bootstraps,’” 72 then
utilizing that conspiracy evidence to get a conviction on the
murder charge.
Such arguments fall far short of showing compelling, spe-
cific, and actual prejudice. Most fundamentally, however, there
is no merit to Trail’s assumption that different hearsay rules
apply to proof of a conspiracy in a trial on a conspiracy charge
versus proof of a conspiracy in a trial on a murder charge.
[24-26] In State v. Hudson, 73 we specifically held that
the coconspirator exception to the hearsay rule is applicable
regardless of whether a conspiracy has been charged in the
information. Under Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue
2016), a statement is not hearsay if it is “a statement by a
coconspirator of a party during the course and in furtherance
of the conspiracy.” Under the coconspirator exception to the
hearsay rule, the declarant conspirator who partners with oth-
ers in the commission of a crime is considered the agent of
69
Id.70
Id.71
Brief for appellant at 23.
72
Id.73
State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).
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Cite as 312 Neb. 843his or her fellow conspirators, and the commonality of inter-
ests gives some assurance that the statements are reliable. 74
Whether or not a conspiracy has been charged in the informa-
tion, before the trier of fact may consider testimony under the
coconspirator exception to the hearsay rule, a prima facie case
establishing the existence of the conspiracy must be shown by
independent evidence, to prevent the danger of hearsay evi-
dence being lifted by its own bootstraps. 75
Our review of the record demonstrates the district court
was aware of Trail’s concerns and insisted the State establish
by independent evidence a prima facie case of the conspiracy
before it admitted Boswell’s out-of-court statements. We find
no merit to this assignment of error.
3. Sequestration
Trail next argues the district court erred in allowing
Sydney’s mother to remain in the courtroom “in violation
of its own sequestration order.” 76 Trail elaborates that under
Neb. Rev. Stat. § 27-615 (Reissue 2016), he had a right to
have the witnesses excluded so that they could not hear the
testimony of other witnesses. Trail does not explain how he
was prejudiced by the district court’s ruling other than gen-
erally noting Sydney’s mother “remained in the front of the
courtroom for the majority of the balance of the trial within
sight of the jury and was able to hear the testimony of all the
other witnesses.” 77
[27,28] Section 27-615 provides, with certain exceptions
not here applicable that “[a]t the request of a party the
judge shall order witnesses excluded so that they cannot hear
the testimony of other witnesses . . . .” However, we have
long held that the exclusion or sequestration of a witness is
74
State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
75
See State v. Estrada Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).
76
Brief for appellant at 25.
77
Id. at 26.
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Cite as 312 Neb. 843within the discretion of the trial court. 78 It is for the trial
court to determine the extent to which a sequestration order
will be applied in a given case. 79 Sequestration is based on
the belief that not hearing other witnesses’ testimony tends to
better elicit the truth and promote the ends of justice, but this
reasoning generally applies only to unexamined wit­nesses. 80
Thus, generally speaking, a request for sequestration of wit-
nesses is a request that they be excluded from the court-
room until called to testify. 81 The denial of a sequestration
motion will not be overturned absent evidence of prejudice to
the defendant. 82
The district court did not abuse its discretion in allow-
ing Sydney’s mother to remain in the courtroom after she
testified and after the court released her from sequestration.
Furthermore, Trail has failed to demonstrate he was prejudiced
by her presence. While the defense was given the opportunity
to recall Sydney’s mother in order to reopen cross-examination,
it did not elect to do so. The fact that the mother of a mur-
der victim was present in the courtroom in view of the jury
during trial does not in itself demonstrate prejudice to the
defendant.
4. Courtroom Disruption
Trail argues that his outburst at trial—“curse you all” and
cutting his neck with a razor blade—was of such a nature that
its damaging effect could not be removed by admonition or
instruction and that the court should have granted his motion
for a mistrial. Even if an admonition or instruction could
have otherwise removed the prejudice, according to Trail,
the court’s procedure of first ordering the jurors to disregard
78
State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999).
79
State v. Swillie, supra note 8.
80
See State ex rel. NSBA v. Miller, supra note 78.
81
State v. Hess, 225 Neb. 91, 402 N.W.2d 866 (1987).
82
State ex rel. NSBA v. Miller, supra note 78.
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Cite as 312 Neb. 843the outburst and then asking them if they could follow the
court’s instruction was insufficient because it put the jurors in
a difficult position of stating they could not follow the court’s
order. Similarly, Trail argues his motion for a new trial should
have been granted because of his disruption. Trail suggests
the additional evidence submitted in support of the motion for
new trial, entered under seal, showed the self-harm was due to
“misconduct of agents of the prosecuting attorney,” 83 because
it would not have occurred had jail staff implemented extra
security measures warranted by specific knowledge. We hold
the district court did not err in denying Trail’s motions for a
mistrial and for a new trial.
[29-31] A mistrial is properly granted in a criminal case
where an event occurs during the course of trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus pre-
vents a fair trial. 84 A defendant faces a higher threshold than
merely showing a possibility of prejudice when attempting to
prove error predicated on the failure to grant a mistrial. 85 The
defend­ant must prove that the alleged error actually prejudiced
him or her, rather than creating only the possibility of preju-
dice. 86 Absent evidence to the contrary, the legal system pre-
sumes that jurors, to the extent they are able, will comply with
curative instructions and judicial admonitions. 87
[32,33] A motion for a new trial is a statutory remedy and
can be granted by a court of law only upon the grounds, or
83
Brief for appellant at 36.
84
State v. Figures, supra note 9.
85
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
86
State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
87
See, David F. Herr & Roger S. Haydock, Motion Practice § 21.04 (8th ed.
2021) (discussing curative instructions); David Paul Nicoli, Federal Rules
of Criminal Procedure 23(b) and 24(c): A Proposal to Reduce Mistrials
Due to Incapacitated Jurors, 31 Am. U.L. Rev. 651 (1982). See, also, U.S.
v. Dunlap, 28 F.3d 823 (8th Cir. 1994).
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Cite as 312 Neb. 843some of them, provided for by the statutes. 88 The grounds on
which a trial court may order a new trial after a criminal convic-
tion has been entered are specified in Neb. Rev. Stat. § 29-2101(Reissue 2016). The asserted ground for a new trial must affect
adversely the substantial rights of the defendant, and it must be
shown that the defendant was prejudiced thereby. 89
[34-36] A trial court is vested with considerable discre-
tion in passing on motions for mistrial and new trial, 90 and an
appellate court will not disturb a trial court’s decision whether
to grant a motion for mistrial or a motion for new trial unless
the court has abused its discretion. 91 It is an abuse of discre-
tion to make an error of law or clear errors of factual deter-
mination. 92 Our deference to the trial court stems in part from
the recognition that the trial judge is better situated than a
reviewing court to pass on questions of witness credibility and
the surrounding circumstances and atmosphere of the trial. 93
The trial judge has a special perspective on the relationship
between the evidence and the verdict which cannot be recre-
ated by a reviewing court from the printed record. 94 The trial
court is likewise in a better position to make credibility deter-
minations of jurors’ statements concerning whether they were
influenced by extraneous information. 95
88
See Greenberg v. Fireman’s Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772(1949). See, also, State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
89
State v. Tainter, 218 Neb. 855, 359 N.W.2d 795 (1984).
90
See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). See, also,
State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021); State v. Grant,
supra note 85.
91
See, State v. Figures, supra note 9; State v. Bartel, supra note 88.
92
See, U.S. v. McDaniel, 398 F.3d 540 (6th Cir. 2005); U.S. v. Petrie, 302
F.3d 1280 (11th Cir. 2002).
93
Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).
94
See id.95
See Scherz v. Platte Valley Public Power and Irrigation District, 151 Neb.
415, 37 N.W.2d 721 (1949). See, also, State v. Jenkins, supra note 11.
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Cite as 312 Neb. 843[37] The district court, after considering all the evidence
submitted by the parties at the hearing on the motion for new
trial, found Trail’s act of self-harm was “a calculating gesture,”
and we will not disturb this finding on appeal. As a general
matter, a defendant is not permitted to profit from the defend­
ant’s own bad conduct by disrupting courtroom proceedings
and then urging disruption as a ground for mistrial. 96 “To hold
otherwise would provide a criminal defendant with a conve-
nient device for provoking a mistrial whenever he chose to
do so, either inside or outside the courtroom.” 97 As the U.S.
Supreme Court has explained in the context of the right to be
present at trial, an accused cannot be permitted through dis-
ruptive conduct to indefinitely avoid being tried. 98 “It would
degrade our country and our judicial system to permit our
courts to be bullied, insulted, and humiliated and their orderly
progress thwarted and obstructed by defendants brought before
them charged with crimes.” 99
In accordance with these principles, in State v. Grant, 100
we held the trial court did not err in denying the defendant’s
96
See, United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963); Hayes v.
State, 340 So. 2d 1142 (Ala. Crim. App. 1976); People v. Dunn, 141 Cal.
Rptr. 3d 193, 205 Cal. App. 4th 1086 (2012); Hammond v. United States,
345 A.2d 140 (D.C. 1975); State v. Ganal, 81 Haw. 358, 917 P.2d 370(1996); State v. Doyle, 335 So. 3d 393 (La. App. 2021); State v. Eaton,
563 S.W.3d 841 (Mo. App. 2018); State v. Grant, supra note 85; People
v. Mabre, 166 A.D.2d 339, 561 N.Y.S.2d 10 (1990); State v. Joiner, 237
N.C. App. 513, 767 S.E.2d 557 (2014); State v. Linkous, 177 W. Va. 621,
355 S.E.2d 410 (1987). See, also, generally, Annot., 89 A.L.R.3d 960(1979 & Supp. 2022). But see, e.g., People v. Blunt, 273 A.D.2d 146, 709
N.Y.S.2d 560 (2000) (defendant’s orations containing inadmissible and
highly prejudicial factual assertions were too extensive and damaging to
be dealt with through curative instructions and jury inquiries).
97
Hammond v. United States, supra note 96, 345 A.2d at 141.
98
Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
99
Id., 397 U.S. at 346.
100
State v. Grant, supra note 85.
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Cite as 312 Neb. 843motion for a mistrial based on his conduct during trial of sud-
denly standing up and punching his counsel in the head, after
which a scuffle with law enforcement ensued to restrain him.
The defendant was subsequently found guilty of first degree
murder and use of a deadly weapon to commit a felony. The
court admonished the jury members and asked them to notify
the court if they could no longer be fair and impartial. None
did. While it appeared the altercation upset at least one mem-
ber of the jury, we pointed out the reactions at issue would
not have occurred without the defendant’s own outburst. 101
We would not “permit a defendant to benefit from his or her
own bad behavior during trial.” 102 We also found that because
the jury members were admonished and indicated they could
remain fair and impartial, the defendant had failed to demon-
strate prejudice. We reached a similar conclusion for similar
reasons in State v. Blackwell, 103 affirming the court’s denial of
a motion for new trial based on the defendant’s yelling at wit-
nesses during their testimony.
When the trial court has endeavored to promptly ameliorate
any prejudicial effect, even frequent offensive and violent out-
bursts by defendants will not ordinarily require a mistrial or a
new trial. 104 In United States v. Bentvena, 105 a series of “dra-
matic disturbances” by several defendants did not warrant a
mistrial when the prosecution had done nothing to provoke the
incidents and the judge did all in his power to minimize their
effect. To hold otherwise, explained the court, “would produce
little less than anarchy.” 106
[38] Neither are disruptive acts of the defendant irremedi-
able simply because they reflect some attribute consistent
101
See id.102
Id. at 194, 876 N.W.2d at 664.
103
State v. Blackwell, 184 Neb. 121, 165 N.W.2d 730 (1969).
104
See, e.g., United States v. Bentvena, supra note 96.
105
Id. at 930.
106
Id. at 931.
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Cite as 312 Neb. 843with the charged crime. For example, in People v. White, 107
a defendant on trial for escape was not entitled to a mistrial
after the jury saw him flee the courtroom when the State’s
last witness took the stand. The court found the defendant’s
“‘contumacious’” behavior should not entitle him to a mistrial
absent “irremedial prejudice.” 108 And it found that the trial
court’s actions in promptly escorting the jury members from
the courtroom and admonishing them to keep an open mind
adequately minimized the likelihood of prejudice. 109
As with these other defendants, we will not permit Trail
to benefit from his own bad behavior during trial. The court
described that, after yelling, “[Boswell] is innocent, and I curse
you all,” Trail made some slashing gestures at his neck and
some blood was visible. While dramatic, the incident was not
of such a nature to create irremediable prejudice.
We find no merit to Trail’s assertion that the violent dis-
ruption was irremediably prejudicial because he could not
thereafter argue to the jury he was incapable of violence and,
thus, innocent. The same could be said of any violent outburst
during the trial on charges of any violent crime. Moreover, it is
apparent it was never defense counsel’s strategy to argue Trail
was nonviolent, arguing instead that Trail had unintentionally
killed Sydney while engaged in sadomasochistic consensual
asphyxiation. Similarly, Trail’s statement about cursing “you
all” was not irremediably prejudicial because Sydney’s murder
was allegedly connected to witchcraft. And even assuming
Trail’s outburst was construed by jurors as a call to the super-
natural rather than a more mundane expression of outrage,
such beliefs were cumulative of Trail’s own testimony that he
believed in spiritual witches.
The trial court endeavored to promptly ameliorate any preju-
dicial effect by clearing the jury from the courtroom and
107
People v. White, 199 A.D.2d 558, 606 N.Y.S.2d 49 (1993).
108
Id. at 559, 606 N.Y.S.2d at 50.
109
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Cite as 312 Neb. 843instructing it “to disregard the outburst that you heard this
morning and to not consider it in your deliberations at the end
of the trial.” After interviewing each of the jurors individually,
the district court found they were able to follow the cura-
tive instruction to disregard the outburst and remain fair and
impartial in their deliberations. We disagree with Trail’s asser-
tion that the court’s procedure of giving the curative instruc-
tion before individually interviewing the jurors pressured the
jurors into falsely proclaiming they could follow the court’s
instruction. We will not second-guess the court’s evaluation of
the credibility of the jurors’ assurances that they could remain
fair and impartial. The disruption was not so damaging that
a reasonable juror would be incapable of following curative
instructions or of knowing his or her own capacity to remain
impartial. The court did not err in finding that Trail did not suf-
fer actual prejudice.
Trail’s arguments pertaining to jail staff’s negligence are
irrelevant to our analysis, and we therefore do not determine
the extent of such negligence, if any. Whatever security meas­
ures jail staff could have taken to prevent Trail from secret-
ing the razor blade into the courtroom, Trail’s responsibility
for intentionally disrupting the trial would remain the same.
Whether or not jail staff should have done more to prevent it,
Trail should not benefit from this “calculating gesture.”
The district court did not abuse its discretion in denying
Trail’s motions for a mistrial and a new trial. We turn to Trail’s
assignments of error relating to sentencing.
5. Constitutionality of Findings of Whether
Aggravating Circumstances Justify Death
Penalty and Relative Weight of
Aggravating and Mitigating Circumstances
Being Made by Judges Rather Than Jury
Trail assigns the district court erred in sentencing him to
death because Nebraska’s death penalty scheme is unconsti-
tutional. He argues that because a panel of judges rather than
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Cite as 312 Neb. 843a jury makes findings of whether the aggravating circum-
stances justify the death penalty and whether sufficient miti-
gating circumstances exist that approach or exceed the weight
given to the aggravating circumstances, Nebraska’s death
penalty scheme violates article I, §§ 6 and 9, of the Nebraska
Constitution and the 6th and 8th Amendments to the U.S.
Constitution, made applicable to the states through the 14th
Amendment. We disagree.
Under Nebraska’s capital sentencing scheme, a jury, if not
waived, 110 only determines the existence of aggravating circum-
stances. 111 A jury’s participation in the death penalty sentenc-
ing phase, if not waived, 112 ceases after the determination of
aggravating circumstances. 113 A three-judge panel determines
the existence of mitigating circumstances, weighs aggravating
and mitigating circumstances, and determines the sentence. 114
Section 29-2522 provides the guidelines for the three-judge
panel’s sentencing determination:
The panel of judges for the sentencing determination
proceeding shall either unanimously fix the sentence at
death or, if the sentence of death was not unanimously
agreed upon by the panel, fix the sentence at life impris-
onment. Such sentence determination shall be based upon
the following considerations:
(1) Whether the aggravating circumstances as deter-
mined to exist justify imposition of a sentence of death;
(2) Whether sufficient mitigating circumstances exist
which approach or exceed the weight given to the aggra-
vating circumstances; or
110
See Neb. Rev. Stat. § 29-2520(3) (Cum. Supp. 2020).
111
See § 29-2520(4)(g).
112
See § 29-2520(3).
113
See § 29-2520(4)(g).
114
§ 29-2521.
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Cite as 312 Neb. 843(3) Whether the sentence of death is excessive or dis-
proportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
In each case, the determination of the panel of judges
shall be in writing and refer to the aggravating and
mitigating circumstances weighed in the determination of
the panel.
(a) Sixth Amendment
[39] The Sixth Amendment right to a speedy and public
trial by an impartial jury, in conjunction with the Due Process
Clause, requires that each element of a crime be proved to
a jury beyond a reasonable doubt. 115 Article I, § 6, of the
Nebraska Constitution provides: “The right of trial by jury
shall remain inviolate . . . .”
In Apprendi v. New Jersey 116 and Ring v. Arizona, 117 the
U.S. Supreme Court held that under the Sixth Amendment, a
defend­ant has a right to have any “fact on which the legislature
conditions an increase in their maximum punishment” deter-
mined by a jury, even if the State characterizes that factual
finding as a sentencing factor rather than an element. 118 “[T]he
relevant inquiry is one not of form, but of effect.” 119
[40] The Court in Ring elaborated that under a statutory
scheme in which the death penalty cannot be imposed unless
at least one aggravating factor is found to exist beyond a
reasonable doubt, the Sixth Amendment requires the factual
determination of the aggravating factor be entrusted to the
jury. “[I]f the legislature defines some core crime and then
provides for increasing the punishment of that crime upon a
115
Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).
116
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000).
117
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
118
Id., 536 U.S. at 589.
119
Apprendi v. New Jersey, supra note 116, 530 U.S. at 494.
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Cite as 312 Neb. 843finding of some aggravating fact[,] . . . the core crime and the
aggravating fact together constitute an aggravated crime.” 120
The Court found that “enumerated aggravating factors [of
state laws] operate as the functional equivalent of an element
of a greater offense.” 121
The Court in Ring expressly observed, however, it was not
addressing whether the Sixth Amendment forbade determi-
nations by judges, rather than juries, of mitigating circum-
stances, the relative weight of aggravating and mitigating
circumstances, or the ultimate sentencing decision. In fact, the
Court in Ring reiterated the distinction between facts of mitiga-
tion versus aggravation, as well as its prior pronouncement in
Proffitt v. Florida 122 that “‘[i]t has never [been] suggested that
jury sentencing is constitutionally required.’” 123
In several cases, we have rejected the argument that
because the right to a jury determination is limited to guilt or
innocence of the crimes charged and the determination of the
aggravating circumstances, Nebraska’s sentencing scheme is
unconstitutional under the 6th and 14th Amendments to the
U.S. Constitution and article I, §§ 3 and 6, of the Nebraska
Constitution. 124 In State v. Gales (Gales I), 125 we explained
that Apprendi and Ring do not stand for the proposition that
a jury, rather than a judge or judges, must make the sentenc-
ing determinations listed under § 29-2522. Rather, Apprendi
and Ring affected only the narrow issue of whether there is
120
Ring v. Arizona, supra note 117, 536 U.S. at 605 (internal quotation marks
omitted).
121
Id., 536 U.S. at 609 (internal quotation marks omitted).
122
See Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913(1976).
123
Ring v. Arizona, supra note 117, 536 U.S. at 597-98 n.4.
124
See, State v. Jenkins, supra note 11; State v. Lotter, 301 Neb. 125, 917
N.W.2d 850 (2018); State v. Hessler, 274 Neb. 478, 741 N.W.2d 406(2007); State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
125
State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
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Cite as 312 Neb. 843a Sixth Amendment right to have a jury determine the exis-
tence of any aggravating circumstance upon which a capital
sentence is based.
[41] We noted in Gales I that the U.S. Supreme Court, in
Tuilaepa v. California, 126 had described statutory schemes
similar to the one in Nebraska as being composed of an
“‘eligibility decision,’” in which there must be a determina-
tion of the existence of one or more prescribed aggravating
circumstances before a defendant is eligible for a sentence
of death and a “‘selection decision,’” in which the sentence
determines whether a defendant who is thereby death eligible
should in fact receive the death penalty, based upon an indi-
vidualized determination of the character of the individual
and the circumstances of the crime. 127 The “eligibility deci-
sion” stemmed from a series of U.S. Supreme Court deci-
sions holding that in order to render a defendant eligible for
the death penalty, the trier of fact must convict the defendant
of murder and also find one “‘aggravating circumstance’ (or
its equivalent) at either the guilt or penalty phase.” 128 We
pointed out that the U.S. Supreme Court, in both Proffitt 129
and Spaziano v. Florida, 130 had rejected arguments that the
selection decision, as opposed to the eligibility decision, must
be made by a jury, and the Court in Ring appeared to continue
126
Tuilaepa v. California, 512 U.S. 967, 114 S. Ct. 2630, 129 L. Ed. 2d 750(1994).
127
Gales I, supra note 125, 265 Neb. at 609, 658 N.W.2d at 614, quoting
Tuilaepa v. California, supra note 126.
128
Tuilaepa v. California, supra note 126, 512 U.S. at 971-72. See, Lowenfield
v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Zant v.
Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Coker
v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). See,
also, Jones v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d
370 (1999).
129
See Proffitt v. Florida, supra note 122.
130
Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340(1984), overruled, Hurst v. Florida, supra note 115.
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Cite as 312 Neb. 843to approve of the distinction between eligibility and selection
decisions for purposes of the Sixth Amendment. 131 We accord-
ingly held that the Sixth Amendment requires only the right to
a jury determination of the death-eligibility finding of one or
more aggravating circumstances and it does not apply to the
selection decision.
Relying on the 2016 U.S. Supreme Court decision in Hurst
v. Florida, 132 Trail asserts that Gales I and its progeny are no
longer good law. We disagree.
In Hurst, the Court held that a “hybrid” 133 sentencing
scheme, in which the jury made a merely “advisory” 134 recom-
mendation of life or death and did not make a binding finding
as to the existence of any aggravating circumstance, violated
the Sixth Amendment. The sentencing scheme required the
jury to render an advisory verdict of life or death while
the sentencing judge then exercised independent judgment
to determine the existence of aggravating and mitigating fac-
tors and made an independent judgment, after weighing the
aggravating and mitigating factors, about whether the sen-
tence should be life or death. The sentencing statute specified
that a defendant was not death eligible until the court (not
a jury) made independent findings that the person shall be
punished by death—which included finding that sufficient
aggravating circumstances existed and that there were insuf-
ficient mitigating circumstances to outweigh the aggravating
circumstances. 135
The Supreme Court in Hurst rejected the State’s argument
that the scheme was constitutional because a jury implicitly
found at least one aggravating circumstance when it recom-
mended the death penalty. The Court explained, “The State
131
Gales I, supra note 125.
132
Hurst v. Florida, supra note 115.
133
Id., 577 U.S. at 95 (internal quotation marks omitted).
134
Id. (internal quotation marks omitted).
135
See id.
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Cite as 312 Neb. 843fails to appreciate the central and singular role the judge
plays” 136 under the law wherein “[t]he trial court alone must” 137
make the “critical findings necessary to impose the death
penalty” 138 without which the defendant’s maximum authorized
punishment would be life imprisonment.
We recently addressed Hurst in State v. Jenkins. 139 We
held on direct appeal from the defendant’s conviction and
sentence to the death penalty that Hurst did not require us
to reexamine our prior conclusion that the Sixth Amendment
does not require the jury to determine mitigating circum-
stance, perform the balancing function, or conduct the pro-
portionality review.
Similarly, in State v. Lotter, 140 we held, for purposes of the
statute of limitations for a postconviction action, that Hurst
did not announce a new rule of law. We explained Hurst was
merely an application of Ring to the sentencing scheme under
which the judge alone found the existence of any aggravating
circumstance that made the defendant death eligible.
We explained in Lotter that isolated references in Hurst
to the sentencing scheme’s requirement that the court find
there were insufficient mitigating circumstances to outweigh
the aggravating circumstances did not mean that the Supreme
Court had held the jury rather than a judge must find that
the aggravating circumstances outweigh the mitigating ones.
Rather, we sided with the opinion of most federal and state
courts, which agree Hurst does not stand for the proposition
that a jury must find beyond a reasonable doubt that the aggra-
vating factors outweigh the mitigating circumstances. 141
136
Id., 577 U.S. at 99.
137
Id., 577 U.S. at 100.
138
Id., 577 U.S. at 98.
139
State v. Jenkins, supra note 11.
140
State v. Lotter, supra note 124.
141
Id.
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Cite as 312 Neb. 843[42] After Jenkins and Lotter, the U.S. Supreme Court, in
McKinney v. Arizona, 142 implicitly confirmed the validity of
our analysis and the majority view. The Court held that on
remand for a reweighing of the aggravating and mitigating
circumstances (after federal habeas corpus review found the
trial court had erred by refusing to consider the mitigating
circumstance of the defendant’s post-traumatic stress disor-
der), a judge, rather than a jury, could conduct the reweigh-
ing. The Supreme Court specifically rejected the defendant’s
argument that its holding in Hurst required a jury to reweigh
aggravating and mitigating circumstances. The Court reiter-
ated, “[I]n a capital sentencing proceeding just as in an ordi-
nary sentencing proceeding, a jury (as opposed to a judge)
is not constitutionally required to weigh the aggravating and
mitigating circumstances or to make the ultimate sentencing
decision within the relevant sentencing range.” 143 The Court
explained that Ring and Hurst stand only for the proposi-
tion that a jury must find an aggravating circumstance that
makes the defendant death eligible. “In short,” said the Court,
“Ring and Hurst did not require jury weighing of aggravat-
ing and mitigating circumstances” 144 and “‘States that leave
the ultimate life-or-death decision to the judge may continue
to do so.’” 145
[43] By leaving to the three-judge panel the ultimate life-
or-death decision upon making the selection decisions of
whether the aggravating circumstances justify the death pen-
alty and whether sufficient mitigating circumstances exist that
approach or exceed the weight given to the aggravating cir-
cumstances, Nebraska’s sentencing scheme does not violate
142
McKinney v. Arizona, ___ U.S. ___, 140 S. Ct. 702, 206 L. Ed. 2d 69(2020).
143
Id., 140 S. Ct. at 707.
144
Id., 140 S. Ct. at 708.
145
Id., 140 S. Ct. at 708, quoting Ring v. Arizona, supra note 117 (Scalia, J.,
concurring; Thomas, J., joins).
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Cite as 312 Neb. 843the Sixth Amendment right to a jury trial or article I, § 6, of
the Nebraska Constitution.
(b) Eighth Amendment
Taking a more novel tack, Trail asserts Nebraska’s delega-
tion of the selection criteria and ultimate life-or-death deci-
sion to the three-judge panel violates the Eighth Amendment
to the U.S. Constitution and article I, § 9, of the Nebraska
Constitution. He asserts that allowing judge-determined death
sentences has fallen outside society’s evolving standards of
decency and that jurors, rather than judges, can more reliably
express society’s consensus of whether a sentence of death is
the adequate response to the defendant’s crimes. It does not
appear we have ever addressed this specific argument. We con-
clude it lacks merit.
[44] The Cruel and Unusual Punishment Clause prohibits
(1) “barbaric punishments under all circumstances” and (2)
punishments that are not “‘graduated and proportioned to
[the] offense.’” 146 Most cases involve disproportionality. 147
On disproportionality, there is a body of case law applying
categorical rules under the Eighth Amendment in light of
either the “nature of the offense” or the “characteristics of the
offender.” 148 In adopting such rules, the U.S. Supreme Court
has considered, first, “‘objective indicia of society’s standards’
. . . to determine whether there is a national consensus against
the sentencing practice at issue.” 149 It then has exercised its
own independent judgment, guided by “‘the standards elabo-
rated by controlling precedents and by the Court’s own under-
standing and interpretation of the Eighth Amendment’s text,
history, meaning, and purpose.’” 150
146
Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825(2010).
147
See id.148
Id., 560 U.S. at 60.
149
Id., 560 U.S. at 61.
150
Id.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843The U.S. Supreme Court has recognized that the Eighth
Amendment reaffirms the duty of the government to respect the
dignity of all persons “‘[b]y protecting even those convicted
of heinous crimes . . . .’” 151 “To enforce the Constitution’s
protection of human dignity, this Court looks to the ‘evolv-
ing standards of decency that mark the progress of a maturing
society.’” 152 This is necessary because the standard of extreme
cruelty is not merely descriptive, but necessarily embodies a
moral judgment, and what is considered cruel and unusual pun-
ishment must change as the basic mores of society change. 153
The U.S. Supreme Court has also said, “The fundamental
respect for humanity underlying the Eighth Amendment’s
prohibition against cruel and unusual punishment gives rise
to a special need for reliability in the determination that
death is the appropriate punishment in any capital case.” 154
In order to ensure that reliability, “the sentencing process
must permit consideration of the ‘character and record of the
individual offender and the circumstances of the particular
offense.’” 155
None of these Eighth Amendment principles are pertinent
to whether a jury, as opposed to a judge, weighs the aggra-
vating against the mitigating circumstances and makes the
ultimate determination if death is the appropriate punishment.
In fact, the U.S. Supreme Court has recognized as much. In
Clemons v. Mississippi, 156 in addition to addressing the Sixth
151
Hall v. Florida, supra note 62, 572 U.S. at 708, quoting Roper v. Simmons,
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
152
Id., quoting Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 1 L. Ed. 2d. 630
(1958).
153
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
154
Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d
575 (1988) (internal quotation marks omitted).
155
See Lockett v. Ohio, 438 U.S. 586, 601, 98 S. Ct. 2954, 57 L. Ed. 2d 973(1978).
156
Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725(1990).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843Amendment, the U.S. Supreme Court held it does not violate
the Eighth Amendment for an appellate court, rather than
remand for a jury reweighing, to uphold a death sentence
by itself reweighing on appeal the aggravating and mitigat-
ing evidence. One aggravating circumstance found below
had been held on appeal to be unconstitutionally vague, but
the other aggravating circumstance was held to be valid. 157
The Court explained, “The primary concern in the Eighth
Amendment context has been that the sentencing decision be
based on the facts and circumstances of the defendant, his
background, and his crime.” 158 “[S]tate appellate courts can
and do give each defendant an individualized and reliable
sentencing determination based on the defendant’s circum-
stances, his background, and the crime.” 159 This holding in
Clemons was reaffirmed after Hurst 160 by the Court’s opinion
in McKinney. 161
In arguing that the Eighth Amendment is relevant to pro-
cedures such as whether a panel of judges rather than a jury
makes the final selection determinations necessary to impose
the death penalty, Trail relies on Hall v. Florida. 162 In Hall,
the U.S. Supreme Court held that a statutory scheme making
an intellectual quotient score final and conclusive on whether
a defendant was intellectually disabled, without allowing con-
sideration of additional evidence of intellectual disability,
violated the Eighth Amendment when the scientific com-
munity and the national consensus recognized the specified
score to be at the lower end of the inherent margin of error
for a range demonstrating intellectual disability. Applying
157
See id.158
Id., 494 U.S. at 748.
159
Id., 494 U.S. at 749.
160
Hurst v. Florida, supra note 115.
161
McKinney v. Arizona, supra note 142.
162
Hall v. Florida, supra note 62.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843its prior holding in Atkins v. Virginia 163 that the 8th and 14th
Amendments to the U.S. Constitution forbid the execution of
persons with intellectual disability, the Court held the rigid
statutory rule respecting intellectual quotient scores “creates
an unacceptable risk that persons with intellectual disability
will be executed, and thus is unconstitutional.” 164
Hall is not apposite to the case at bar. Having a three-judge
panel weigh aggravators against mitigators and determine the
ultimate sentence does not create an unacceptable risk that
persons will be executed without the constitutionally required
consideration of character and record of the individual offender
and the circumstances of the particular offense.
[45] In State v. Mata, 165 we rejected the defendant’s argu-
ment that a system wherein a three-judge panel weighs the
aggravating and mitigating circumstances without guidance
from the jury is arbitrary and capricious under the 8th and
14th Amendments. In State v. Hessler, 166 we rejected the
defendant’s argument under the Eighth Amendment that a
sentencing panel is not in as good of a position as the
jury to assign a weight to the aggravating circumstances,
to weigh aggravating circumstances against mitigating cir-
cumstances, or to determine the sentence. While Trail’s 8th
Amendment arguments are somewhat different from those
addressed in Mata and Hessler, he presents no reason to
depart from our holdings in those cases that Nebraska’s
statutory scheme, delegating to the three-judge panel deter-
minations of whether the aggravating circumstances justify
the death penalty and whether sufficient mitigating circum-
stances exist that approach or exceed the weight given to the
163
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335(2002).
164
Hall v. Florida, supra note 62, 572 U.S. at 704.
165
State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
166
State v. Hessler, supra note 124.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843aggravating circumstances, does not violate the 8th and 14th
Amendments to the U.S. Constitution or article I, § 9, of the
Nebraska Constitution.
6. Proportionality Review
[46] Lastly, Trail argues that because his crimes involved
only one victim and one aggravator, the sentence of death
in this case is excessive or disproportionate to the penalty
imposed in similar cases. Under Neb. Rev. Stat. § 29-2521.03(Cum. Supp. 2020), we are required upon appeal to determine
the propriety of a death sentence by conducting a proportional-
ity review. Proportionality review requires us to compare the
aggravating and mitigating circumstances with those present
in other cases in which a district court imposed the death pen-
alty. 167 This is to ensure that the sentence imposed in the case
under review is no greater than those imposed in other cases
with the same or similar circumstances. 168
[47] We disagree with Trail’s premise that the number of
victims or the number of aggravating circumstances is determi-
native. We have emphasized that the balancing of aggravating
circumstances against mitigating circumstances is not merely
a matter of number counting, but, rather, requires a careful
weighing and examination of the various factors. 169 It would
be virtually impossible to find two murder cases which are the
same in all respects. 170 Instead, the question is simply whether
the cases being compared are sufficiently similar, considering
both the crime and the defendant, to provide the court with
a useful frame of reference for evaluating the sentence in
this case. 171
167
State v. Mata, supra note 165.
168
See id.169
State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
170
State v. Schroeder, supra note 12.
171
Id.- 906 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843[48] Accordingly, we have held that the death penalty can
be imposed when only one aggravating circumstance is pres-
ent. 172 Where the record reveals that the sentence of death was
the result of reasoned judgment and the careful weighing and
examination of the various circumstances and factors in light
of the totality of the circumstances present, one aggravating
circumstance may be sufficient under our statutory system for
the sentencing court to conclude that imposition of the death
penalty is appropriate. 173
In our de novo review, we conclude that the requirements of
Neb. Rev. Stat. §§ 29-2519 to 29-2546 (Cum. Supp. 2020) have
been met. Trail does not contest that the State proved beyond
a reasonable doubt the aggravating circumstance of excep-
tional depravity to justify the imposition of the death penalty.
As the sentencing panel described, the murder reflected cold,
calculated planning to find and kill a helpless victim to sat-
isfy Trail’s curiosity and sexual proclivities. The carvings on
Sydney’s body and other acts of strategic mutilation demon-
strated he relished the murder and had “no regard for the life
of Sydney . . . beyond his own personal pleasure.” We find the
aggravating circumstance of exceptional depravity is sufficient
under the totality of the circumstances present to justify the
death penalty for Trail.
Trail does not assert on appeal any mitigating circumstance.
We agree with the sentencing panel that the nonstatutory miti-
gating circumstance of Trail’s upbringing does not approach
or exceed the aggravating circumstance.
We have reviewed our relevant decisions on direct appeal
from other cases in which the death penalty was imposed
and do not find the imposition of the death penalty is a
greater penalty than the sentences imposed in other cases
with similar circumstances. For example, in State v. Joubert,
we affirmed the death penalty when, among other things,
172
See, id.; State v. Dunster, supra note 169.
173
State v. Dunster, supra note 169.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843the defendant had “coldly planned” 174 “[the] murders far in
advance . . . to satisfy his intellectual or sexual curiosity or
urges.” 175 Further, the murders in Joubert were “‘totally and
senselessly bereft of any regard for human life.’” 176 In Mata,
in affirming the death penalty, we found it “sufficient to say
that [the victim’s] skull had been fractured by multiple blows
of blunt force trauma at or near the time of death and that
[the defendant] had dismembered [the victim’s] body and
disposed of it in pieces.” 177 “[The defendant] had relished
killing [the victim] with gratuitous violence and unnecessary
mutilation.” 178
Our proportionality review, required by § 29-2521.03, is
designed to ensure that no sentence imposed shall be greater
than those imposed in other cases with the same or similar
circumstances and that the review should include only those
cases in which the death penalty was imposed. 179 Like the
defendant in Joubert, Trail coldly planned Sydney’s murder
to satisfy sexual urges. Like the actions of the defendant in
Joubert and the defendant in Mata, Trail’s mutilation and dis-
memberment of Sydney’s body showed he relished the killing
and was bereft of any regard for human life. The crime com-
mitted against Sydney was utterly senseless and cruel. The
sentence of death in this case is not excessive or dispropor-
tionate to the penalty imposed in similar cases. We uphold the
sentencing panel’s imposition of the death sentence.
VI. CONCLUSION
For the foregoing reasons, we find no merit to Trail’s
assignments of error challenging the denial of his pretrial
174
State v. Joubert, supra note 4, 224 Neb. at 432, 399 N.W.2d at 251.
175
Id. at 430, 399 N.W.2d at 250.
176
Id.
177
State v. Mata, supra note 165, 275 Neb. at 30, 745 N.W.2d at 255.
178
Id.179
See State v. Joubert, supra note 4.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843motions to prevent death qualification of the jury and to
sever the conspiracy and murder charges, the district court’s
orders during trial releasing Sydney’s mother from sequestra-
tion after she testified and denying his motion for a mistrial
based on his outburst involving self-harm, and the district
court’s denial of his motion for a new trial. Further, we
reaffirm the constitutionality of the Nebraska death penalty
statutes and find Trail’s sentence of death was not excessive
or disproportionate.
Affirmed.