29-2520. Aggravation hearing; procedure.

(1) Whenever any person is found guilty of a violation of section 28-303 and the information contains a notice of aggravation as provided in section 29-1603, the district court shall, as soon as practicable, fix a date for an aggravation hearing to determine the alleged aggravating circumstances. If no notice of aggravation has been filed, the district court shall enter a sentence of life imprisonment.

(2) Unless the defendant waives his or her right to a jury determination of the alleged aggravating circumstances, such determination shall be made by:

(a) The jury which determined the defendant's guilt; or

(b) A jury impaneled for purposes of the determination of the alleged aggravating circumstances if:

(i) The defendant waived his or her right to a jury at the trial of guilt and either was convicted before a judge or was convicted on a plea of guilty or nolo contendere; or

(ii) The jury which determined the defendant's guilt has been discharged.

A jury required by subdivision (2)(b) of this section shall be impaneled in the manner provided in sections 29-2004 to 29-2010.

(3) The defendant may waive his or her right to a jury determination of the alleged aggravating circumstances. The court shall accept the waiver after determining that it is made freely, voluntarily, and knowingly. If the defendant waives his or her right to a jury determination of the alleged aggravating circumstances, such determination shall be made by a panel of judges as a part of the sentencing determination proceeding as provided in section 29-2521.

(4)(a) At an aggravation hearing before a jury for the determination of the alleged aggravating circumstances, the state may present evidence as to the existence of the aggravating circumstances alleged in the information. The Nebraska Evidence Rules shall apply at the aggravation hearing.

(b) Alternate jurors who would otherwise be discharged upon final submission of the cause to the jury shall be retained during the deliberation of the defendant's guilt but shall not participate in such deliberations. Such alternate jurors shall serve during the aggravation hearing as provided in section 29-2004 but shall not participate in the jury's deliberations under this subsection.

(c) If the jury serving at the aggravation hearing is the jury which determined the defendant's guilt, the jury may consider evidence received at the trial of guilt for purposes of reaching its verdict as to the existence or nonexistence of aggravating circumstances in addition to the evidence received at the aggravation hearing.

(d) After the presentation and receipt of evidence at the aggravation hearing, the state and the defendant or his or her counsel may present arguments before the jury as to the existence or nonexistence of the alleged aggravating circumstances.

(e) The court shall instruct the members of the jury as to their duty as jurors, the definitions of the aggravating circumstances alleged in the information, and the state's burden to prove the existence of each aggravating circumstance alleged in the information beyond a reasonable doubt.

(f) The jury at the aggravation hearing shall deliberate and return a verdict as to the existence or nonexistence of each alleged aggravating circumstance. Each aggravating circumstance shall be proved beyond a reasonable doubt. Each verdict with respect to each alleged aggravating circumstance shall be unanimous. If the jury is unable to reach a unanimous verdict with respect to an aggravating circumstance, such aggravating circumstance shall not be weighed in the sentencing determination proceeding as provided in section 29-2521.

(g) Upon rendering its verdict as to the determination of the aggravating circumstances, the jury shall be discharged.

(h) If no aggravating circumstance is found to exist, the court shall enter a sentence of life imprisonment. If one or more aggravating circumstances are found to exist, the court shall convene a panel of three judges to hold a hearing to receive evidence of mitigation and sentence excessiveness or disproportionality as provided in subsection (3) of section 29-2521.

Source

Cross References

Annotations

1. Aggravating or mitigating circumstances

2. Miscellaneous

1. Aggravating or mitigating circumstances

Resentencing necessitated by a new rule of procedure requiring the jury to find the existence of aggravating circumstances in death penalty cases did not expose the defendant to greater punishment and/or violate the prohibition against ex post facto legislation. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

The Eighth Amendment does not require jury sentencing in death penalty cases; Nebraska's capital sentencing scheme is not constitutionally defective, because it requires a jury, unless waived, to determine only the existence of aggravating circumstances and a three-judge panel to determine the existence of mitigating circumstances, weigh aggravating and mitigating circumstances, and determine the sentence. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

A change in the law providing that the existence of aggravating circumstances is to be determined by a jury unless waived by the defendant is procedural in nature. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).

A person convicted of first degree murder in Nebraska is not eligible for the death penalty unless the State proves one or more of the statutory aggravators beyond a reasonable doubt. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).

The requirement that a notice of aggravators be filed prior to trial is not applicable to cases in which the pretrial and trial litigation steps have already been completed. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).

2. Miscellaneous

The Legislature lacked constitutional authority to amend the language of the statutory penalty for a Class IA felony by inserting the phrase "without parole" after "life imprisonment" during the 2002 special session. State v. Conover, 270 Neb. 446, 703 N.W.2d 898 (2005).

A three-judge panel designated under subsection (3) of this section must vote unanimously for a sentence of death before the death penalty can be properly imposed. State v. Hochstein and Anderson, 262 Neb. 311, 632 N.W.2d 273 (2001).

This section grants the trial judge discretion to conduct the sentencing with or without the assistance of two additional judges, and a defendant's request for a three-judge panel does not make such a panel mandatory. The sentencing procedure provided by this section provides appropriate standards for impaneling a three-judge panel. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).

This section does not violate the U.S. or Nebraska Constitution, and the decision whether to convene a three-judge panel under the statute is left to the discretion of the trial court. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

In Nebraska, the judge rather than the jury is responsible for sentencing upon conviction in a capital case. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).

District court's failure to set hearing date on sentencing within statutory limit is not a ground for reversal where the error does not result in some demonstrative prejudice. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).

District court shall set date for hearing on determination of sentence within seven days of defendant's conviction of murder. State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).