(1) When a person has been found guilty of murder in the first degree and (a) a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520 or (b)(i) the information contains a notice of aggravation as provided in section 29-1603 and (ii) such person waives his or her right to a jury determination of the alleged aggravating circumstances, the sentence of such person shall be determined by:
(a) A panel of three judges, including the judge who presided at the trial of guilt or who accepted the plea and two additional active district court judges named at random by the Chief Justice of the Supreme Court. The judge who presided at the trial of guilt or who accepted the plea shall act as the presiding judge for the sentencing determination proceeding under this section; or
(b) If the Chief Justice of the Supreme Court has determined that the judge who presided at the trial of guilt or who accepted the plea is disabled or disqualified after receiving a suggestion of such disability or disqualification from the clerk of the court in which the finding of guilty was entered, a panel of three active district court judges named at random by the Chief Justice of the Supreme Court. The Chief Justice of the Supreme Court shall name one member of the panel at random to act as the presiding judge for the sentencing determination proceeding under this section.
(2) In the sentencing determination proceeding before a panel of judges when the right to a jury determination of the alleged aggravating circumstances has been waived, the panel shall, as soon as practicable after receipt of the written report resulting from the presentence investigation ordered as provided in section 29-2261, hold a hearing. At such hearing, evidence may be presented as to any matter that the presiding judge deems relevant to sentence and shall include matters relating to the aggravating circumstances alleged in the information, to any of the mitigating circumstances set forth in section 29-2523, and to sentence excessiveness or disproportionality. The Nebraska Evidence Rules shall apply to evidence relating to aggravating circumstances. Each aggravating circumstance shall be proved beyond a reasonable doubt. Any evidence at the sentencing determination proceeding which the presiding judge deems to have probative value may be received. The state and the defendant or his or her counsel shall be permitted to present argument for or against sentence of death. The presiding judge shall set forth the general order of procedure at the outset of the sentencing determination proceeding. The panel shall make written findings of fact based upon the trial of guilt and the sentencing determination proceeding, identifying which, if any, of the alleged aggravating circumstances have been proven to exist beyond a reasonable doubt. Each finding of fact with respect to each alleged aggravating circumstance shall be unanimous. If the panel is unable to reach a unanimous finding of fact with respect to an aggravating circumstance, such aggravating circumstance shall not be weighed in the sentencing determination proceeding. After the presentation and receipt of evidence and argument, the panel shall determine an appropriate sentence as provided in section 29-2522.
(3) When a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520, the panel of judges shall, as soon as practicable after receipt of the written report resulting from the presentence investigation ordered as provided in section 29-2261, hold a hearing to receive evidence of mitigation and sentence excessiveness or disproportionality. Evidence may be presented as to any matter that the presiding judge deems relevant to (a) mitigation, including, but not limited to, the mitigating circumstances set forth in section 29-2523, and (b) sentence excessiveness or disproportionality as provided in subdivision (3) of section 29-2522. Any such evidence which the presiding judge deems to have probative value may be received. The state and the defendant and his or her counsel shall be permitted to present argument for or against sentence of death. The presiding judge shall set forth the general order of procedure at the outset of the sentencing determination proceeding. After the presentation and receipt of evidence and argument, the panel shall determine an appropriate sentence as provided in section 29-2522.
Notes of Decisions
Cited in
41
cases (
4 in the last 5 years), 1977–2023 · leading case:
State v. Hessler, 741 N.W.2d 406 (Neb. 2007).
State v. Hessler, 741 N.W.2d 406 (Neb. 2007).
· cites it 16× “Pursuant to Neb. Rev. Stat. § 29-2521 (Cum. Supp. 2006), after a jury has found aggravating circumstances or the defendant has waived the right to such jury determination, a panel of three judges determines the sentence, which *501 determination includes finding mitigating…”
State v. Lotter, 586 N.W.2d 591 (Neb. 1998).
· cites it 18× “However, because Neb.Rev. Stat. §§ 29-2521 et seq. (Reissue 1989) do not require the State to disprove the existence of mitigating circumstances, they do place the risk of non-production and nonpersuasion on the defendant.”
State v. Galindo, 774 N.W.2d 190 (Neb. 2009).
· cites it 10× “2006), in turn, stated that in the case of first degree murder where either the jury finds the existence of one or more aggravating circumstances or the offender waives the right to a jury determination of aggravators and the information contains a notice of aggravation, " the…”
State v. Gales, 694 N.W.2d 124 (Neb. Ct. App. 2005).
· cites it 7× “Section 29-2521 specifically provides that the panel of judges, including the judge who presided at the trial of guilt, shall be “named at random by the Chief Justice of the Supreme Court.”
State v. Palmer, 399 N.W.2d 706 (Neb. 1986).
· cites it 10× “The defendant, Charles Jess Palmer, appeals from a jury verdict finding him guilty of felony murder under Neb.”
State v. Gales, 658 N.W.2d 604 (Neb. 2003).
· cites it 6× “Section 29-2521 further provided: In the proceeding for determination of sentence, evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to *607 any of the aggravating or mitigating circumstances set forth in…”
State v. Bjorklund, 604 N.W.2d 169 (Neb. 2000).
· cites it 7× “(17) Neb. Rev. Stat. §§ 29-2521 through 29-2524 (Reissue 1995) are unconstitutional because a sentencing panel is not required to enunciate which nonstatutory mitigating factors were considered and found to exist.”
State v. Jenkins, 303 Neb. 676 (Neb. 2019).
· cites it 2× “Neb. Rev. Stat. § 29-2521 (2) (Cum. Supp.”
State v. Garcia, 994 N.W.2d 610 (Neb. 2023).
· cites it 4× “137 135 See Neb. Rev. Stat. § 29-2521 (Cum. Supp. 2022).”
State v. Reeves, 453 N.W.2d 359 (Neb. 1990).
· cites it 7× “It is also the clear intent of Neb. Rev. Stat. § 29-2521 (Reissue 1989) that the sentencing court have before it all evidence which is probative of a proper sentence: In the proceeding for determination of sentence, evidence may be presented as to any matter that the court deems…”
State v. Mata, 745 N.W.2d 229 (Neb. 2008).
· cites it 3× “[49] See § 29-2521. [50] See Gales, supra note 5 .”
State v. Reeves, 344 N.W.2d 433 (Neb. 1984).
· cites it 6× “§ 29-2261 (Reissue 1979) authorizes a presentence investigation in felony cases. This statute applies to all cases in which the trial court has discretion in sentencing, but does not make reference to any special procedure in cases of homicide.”
— Neb. Rev. Stat. § 29-2521(1) — 2 cases
— Neb. Rev. Stat. § 29-2521(2) — 4 cases
State v. Hessler, 741 N.W.2d 406 (Neb. 2007).
“Pursuant to Neb. Rev. Stat. § 29-2521 (Cum. Supp. 2006), after a jury has found aggravating circumstances or the defendant has waived the right to such jury determination, a panel of three judges determines the sentence, which *501 determination includes finding mitigating…”
State v. Mata, 745 N.W.2d 229 (Neb. 2008).
“[49] See § 29-2521. [50] See Gales, supra note 5 .”
State v. Garcia, 994 N.W.2d 610 (Neb. 2023).
“137 135 See Neb. Rev. Stat. § 29-2521 (Cum. Supp. 2022).”
— Neb. Rev. Stat. § 29-2521(3) — 5 cases
State v. Galindo, 774 N.W.2d 190 (Neb. 2009).
“2006), in turn, stated that in the case of first degree murder where either the jury finds the existence of one or more aggravating circumstances or the offender waives the right to a jury determination of aggravators and the information contains a notice of aggravation, " the…”
State v. Gales, 694 N.W.2d 124 (Neb. Ct. App. 2005).
“Section 29-2521 specifically provides that the panel of judges, including the judge who presided at the trial of guilt, shall be “named at random by the Chief Justice of the Supreme Court.”
State v. Hessler, 741 N.W.2d 406 (Neb. 2007).
“Pursuant to Neb. Rev. Stat. § 29-2521 (Cum. Supp. 2006), after a jury has found aggravating circumstances or the defendant has waived the right to such jury determination, a panel of three judges determines the sentence, which *501 determination includes finding mitigating…”
State v. Garcia, 994 N.W.2d 610 (Neb. 2023).
“137 135 See Neb. Rev. Stat. § 29-2521 (Cum. Supp. 2022).”
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