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					                                   NO. S-05-0142


                             IN THE SUPREME COURT

                           FOR THE STATE OF NEBRASKA



       STATE OF NEBRASKA,

                             Appellee,

              v.

       JOSE SANDOVAL,

                             Appellant.



                      APPEAL FROM THE DISTRICT COURT

                          OF MADISON COUNTY, NEBRASKA

                   The Honorable Patrick G. Rogers, District Judge



                               BRIEF OF APPELLEE


JON BRUNING, #20351
Attorney General

J. Kirk Brown, #10456
Solicitor General
2115 State Capitol
Lincoln, NE 68509-8920
Tel: (402) 471-2682
kirk.brown@nebraska.gov

Attorneys for Appellee.
                          TABLE OF CONTENTS

STATEMENT OF THE CASE                           1

PROPOSITIONS OF LAW                             1

STATEMENT OF FACTS                             5

ARGUMENT                                      29

ASSIGNMENT OF ERROR #1                        30

ASSIGNMENT OF ERROR #2                        .41

ASSIGNMENT OF ERROR #3                        .43

ASSIGNMENT OF ERROR #4                        .47

ASSIGNMENT OF ERROR #5                        50

ASSIGNMENT OF ERROR #6                        55

ASSIGNMENT OF ERROR #7                        57

ASSIGNMENT OF ERRORS #8 & 9                   60

ASSIGNMENT OF ERROR #10                       64

ASSIGNMENT OF ERROR #11                       68

ASSIGNMENT OF ERROR #12                       70

ASSIGNMENT OF ERROR #13                       73

ASSIGNMENT OF ERROR #14                       77

ASSIGNMENT OF ERRORS #15, 16, 17, & 18        80

ASSIGNMENT OF ERROR #19                       86

ASSIGNMENT OF ERROR #20                       89

ASSIGNMENT OF ERROR #21                       94

ASSIGNMENT OF ERROR #22                       95
ASSIGNMENT OF ERROR #23                   99

ASSIGNMENT OF ERROR #24                  102

ASSIGNMENT OF ERROR #25                  108

ASSIGNMENT OF ERRORS #26 & 27            110

ASSIGNMENT OF ERROR #28                  114

ASSIGNMENT OF ERROR #29                  118

ASSIGNMENT OF ERRORS #30 & 31            122

ASSIGNMENT OF ERROR #32                  129

ASSIGNMENT OF ERROR #33                  132

ASSIGNMENT OF ERROR #34                  135

ASSIGNMENT OF ERRORS #35 & 36            138

ASSIGNMENT OF ERROR #37                  138

ASSIGNMENT OF ERROR #38                  140

ASSIGNMENT OF ERROR #39                  142

ASSIGNMENT OF ERROR #40                  145

ASSIGNMENT OF ERROR #41                  148

ASSIGNMENT OF ERROR #42                  150

CONCLUSiON                               151

PROOF OF SERViCE                     ,   152




                                ii
                               TABLE OF AUTHORITIES

FEDERAL CASES

Alexander v. Louisiana, 405 U.S. 625 (1972)                                        48

Apprendi v. New Jersey, 530 U.S. 466 (2000)                              5,48,139-140

Booth v. Maryland, 482 U.S. 496 (1987)                                            137

Cabana v. Bullock, 474 U.S. 376 (1986)                   ,                   61-62, 64

Caldwell v. Mississippi, 472 U.S. 320 (1985)                                      144

Coleman v. McCormick, 874 F.2d 1280 (9th Gir. 1989)                             69-70

Enmund v. Florida, 458 U.S. 782 (1982)                                          60-61

Pope v. Illinois, 481 U.S. 497, 107 S.Gt. 1918, 95 L.Ed.2d 439 (1987)              61

Pulley v. Harris, 465 U.S. 37 (1984)                                              133

Ring v. Arizona, 536 U.S. 584 (2002)                              3,49,68,111-112,139

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003;)                                  3,49

Tison v. Arizona, 481 U.S. 137 (1987)                                              61

Tuilaepa v. California, 512 U.S. 967 (1994)                                       112

U.S. v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Gt. 2557 (2006)                      1,32

United States v. Ochoa-Vasquez, 428 F.3d 1015 (11 th Gir. 2005)             33,36,40

United States v. Resko, 3 F3d 684 (3rd Gir. 1993)                                  54

United States v. Shyrock, 342 F.3d 948 (9th Gir. 2003)                             33

United States v. Vario, 943 F.2d 236 (1991)                                    36, 40

Walton v. Arizona, 497 U.S. 639 (1990)                                        111-112

STATE CASES

Barragan v. Superior Court, 148 Cal.App.e" 1478 (2007)                             51

Brown v. State, 196 N.W. 926 (1924)                                               105

Brown v. State, 67 P.3d 917 (Okla.Grim.App. 2003)                                  64



                                              iii
Com. v. Bolden, 562 Pa. 94, 753 A.2d 793                                        107

Evans v. State, 289 Md. 456, 886 A.2d 562 (2005)                                 50

Hyslop v. State, 159 Neb. 802, 68 N.W.2d 698 (1955)                        1, 32, 43

In re Michael U; 273 Neb. 198,728 N.W.2d 116 (2007)                              55

Jasper v. State, 61 S.W.3d 413 (Tex.Crim.App., 2001)                             92

Manley v. State, 918 A.2d 321 (DeI.Supr. 2007)                                   64

Mckaney v. Foreman, 209 Ariz. 268,100 P.3d 18 (2004)                             50

People v. Williams, 241 Mich.App. 519,616 N.W.2d 710 (2000)                      35

Perez v. State, 919 SO.2d 347 (Fla. 2005)                                        64

Roth v. Wiese, 271 Neb. 750, 716 N.W.2d 419 (2006)                            4,94

Se/sorv. State, 2 P.3d 344 (Okla,Crim.App., 2000)                               109

State v. Anderson, 210 Ariz. 327, 111 P.3d 369 (2005)                            95

State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007)                       1, 37, 55

State v. Baltimore, 242 Neb. 562,495 N.W.2d 921 (1993)                           56

State v. Beerman, 231 Neb. 380,436 N.W.2d 499 (1989)                          78-79

State v. Bideaux, 219 Neb. 718, 365 N.W.2d 830 (1985)                         92-93

State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000)       3, 62,96,109,113,134,

136-137,141,142

State v. Boppre, 234 Neb. 922 (1990)                                        146-147

State v. Bowles, 530 N.W.2d 521 (Minn. 1995)                              35-36,41

State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982)                          3,64

State v. Bradley, 236 Neb. 371,461 N.W.2d 524 (1990)                          2,45

State v. Brown, 268 Neb. 943, 689 N.W.2d 347 (2004)                     2,37-38,47

State v. Brown, 280 Kan. 65, 118 P.3d 1273 (2005)                         36-38, 40

State v. Campbell, 239 Neb. 14 (1991)                                           146



                                            iv
State v. Cortis, 237 Neb. 97,465 N.W.2d 132 (1991)                             5,130

State v. Dague, 143 P.3d 998 (Alaska App. 2006)                                    50

State v. Dunster, 262 Neb. 329,631 N.W.2d 879 (2001)                               83

State v. Ellefson, 231 Neb. 120,435 N.W.2d 653 (1989)                             120

State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994)                                 42

State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003)                                39

State v. Ferree, 207 Neb. 593, 299 N.W.2d 777 (1980)                             3,50

State v. Fisher, 272 Neb. 963, 726 N.W.2d 176 (2007)                       79,97, 102

State v. Fortin, 178 N.J. 540, 843 A.2d 974 (2004)                              50-51

State v. Fry, 138 N.M. 700,126 P.3d 516 (2005)                                     64

State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003)                             58, 61

State v. Gales, 269 Neb. 443 (2005)                                 5, 58,70, 113, 140

State v. Gretzler, 135 Ariz. 42,659 P.2d 1 (1983)                                  95

State v, Gutierrez, 272 Neb. 995,726 N.W.2d 542 (2007)                           1,31

State v. Hampton, 213 Ariz. 167, 140 P.3d 950 (2006)                               51

State v. Hessler, 274 Neb. 478,741 N.W.2d 406 (2007)           5,113,134,141-142

State v. Hochstein, 262 Neb. 311,632 N.W.2d 273 (2001)                           2,45

State v. Howard, 182 Neb. 411, 155 N.W.2d 339 (1967)                            59-60

State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985)                                113

State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008)     2, 4, 39, 55, 93, 110, 113,

117,121,132,142,147,150-151

State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998)                               105

State v. Johnson, 4 Neb.App. 776, 551 N.W.2d 742 (Neb.App., 1996)                  72

State v. Joubert, 224 Neb. 411 (1986)                                        126, 134

State v. Kendell, 723 N.W.2d 597 (Minn. 2006)                                      50



                                           v
State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006)                           4, 72

State v. Lee, 189 Ariz. 590, 944 P.2d 1204 (1997)                                 95

State v. Lotter, 255 Neb. 456 (1998)                                          5, 122

State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003)                             3,58

State v. Mata, 275 Neb. 1,745 N.W.2d 229 (2008)        2-4, 49,57-59,65,67-68,95,138

State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007)                           39

State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007)                             32

State v. McPhail, 228 Neb. 117,421 N.W.2d 443 (1988)                              82

State v. Molina, 271 Neb. 488,713 N.W.2d 412 (2006)                     .4-5, 82,131

State v. Moore, 250 Neb. 805 (1996)                                              134

State v. Myers, 15 Neb.App. 308, 726 N.W.2d 198 (2006)                            79

State v. Palmer, 224 Neb. 282 (1986)                                             134

State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995)                             122

State v. Poe, 2008 WL 2951801 (Neb, 2008)                                   1, 37, 55

State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996)                               93

State v. Red Kettle, 239 Neb. 317,476 N.W.2d 220 (1991)               1, 31,44,48,54

State v. Reeves, 239 Neb. 419 (1991)                                        124-125

State v. Reeves, 258 Neb. 511 (2000)                                             149

State v. Ring, 204 Ariz. 534,65 P.3d 915 (2003)                                   64

State v. Robinson, 271 Neb. 698,715 N.W.2d 531 (2006)                          87-88

State v. Rodriguez, 244 Neb. 707, 509 N.W.2d 1 (1993)                             91

State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989)                                113

State v. Ryan, 248 Neb. 405,534 N.W.2d 766 (1995)                           113, 124

State v. Samonte, 83 Haw. 507, 928 P.2d 1 (1996)                              36, 40

State v. Stahl, 240 Neb. 501 (1992)                                             106



                                          vi
State v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006)                    92

State v. Tucker, 259 Wis.2d 484, 657 N.W.2d 374 (2003)             31,33

State v. Victor, 235 Neb. 770, 457 N.W.2d 431 (1990)            113,134

State v. Wabashaw, 274 Neb. 394,740 N.W.2d 583 (2007)            120-121

State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006)                 116

State v. Williams, 269 Neb. 917, 697 N.W.2d 273 (2005)      97,101,104

State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997)                  88

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)                    107

Wood v. State, 158 P.3d 467 (Okla.Crim.App. 2007)                     51

STATE STATUTES

Neb. Rev. Stat. § 28-105                                              44

Neb. Rev. Stat. § 28-303                                           44, 59

Neb. Rev. Stat. § 28-2521                                            131

Neb. Rev. Stat. § 29-1602                                        146-147

Neb. Rev. Stat. § 29-1603                                          43-45

Neb. Rev. Stat. § 29-1606                                             49

Neb. Rev. Stat. § 29-1607                                      47, 49-50

Neb. Rev. Stat. § 29-1823                                          71-73

Neb. Rev. Stat. § 29-2006                                          44-46

Neb. Rev. Stat. § 29-2006(3)                                          45

Neb. Rev. Stat. § 29-2519(d)                                          49

Neb. Rev. Stat. §29-2520                                              56

Neb. Rev. Stat. § 29-2521                                5, 134, 139, 142

Neb. Rev. Stat. § 29-2522(1)                                         136

Neb. Rev. Stat. §29-2522(3)                                   5,133-134



                                         vii
Neb. Rev. Stat. §29-2523           62, 96, 108-109, 113, 136

Neb. Rev. Stat. § 29-2525                                 1




                            viii
                               STATEMENT OF THE CASE

       THIS    IS A CAPITAL CASE on mandatory direct appeal pursuant to

Neb.Rev.Stat. Section 29-2525.

                                 PROPOSITIONS OF LAW

Failure to assert a timely objection at the time of trial constitutes a waiver of the

objection.

       State v. Red Kettle, 239 Neb. 317, 322, 476 N.W.2d 220, 224 (1991).

One cannot know of improper judicial conduct, gamble on a favorable result as to that

conduct, and then complain that he or she guessed wrong and does not like the

outcome.

       State v. Gutierrez, 272 Neb. 995, 1010,726 N.W.2d 542, 560 (2007).

Unless the record discloses an objection to a judge's actions, the complaint cannot be

reviewed on appeal.

       Hyslop v. State, 159 Neb. 802, 808, 68 N.W.2d 698, 702, 703 (1955).

In the absence of some demonstrable prejudice to a defendant, even a violation of our

federal constitution does not merit relief.

       U.S. v. Gonzalez-Lopez, 548 U.S. 140, 156, 126 S.Ct. 2557, 2568 (2006) .

In a harmless error review, an appellate court looks at the evidence upon which the jury

rested its verdict; the inquiry is not whether in a trial that occurred without the error a

guilty verdict would surely have been rendered, but, rather, whether the guilty verdict

rendered in the trial was surely unattributable to the error.

       State v. Poe, 2008 WL 2951801, 11 (Neb.,2008);

       State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).




                                              1
Under Strickland, [the prisoner] has the burden to show that (1) counsel performed

deficiently-that is, counsel did not perform at least as well as a criminal lawyer with

ordinary training and skill in the area, and (2) this deficient performance actually

prejudiced him in making his defense. The prejudice prong requires that Jackson show

a reasonable probability that but for counsel's deficient performance, the result of the

proceeding in question would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Notably, we can assess

the prongs in either order.

       State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).

It is appropriate to death qualify a first degree murder jury.

       State v. Bradley, 236 Neb. 371, 386-387,461 N.W.2d 524, 537 (1990).

We are required to read statutes together and construe them conjunctively to determine

the intent of the Legislature so that different provisions of the statutes may be read to be

consistent, harmonious, and sensible.

       State v. Hochstein, 262 Neb. 311,632 N.W.2d 273 (2001).

Even if there is distinct appellate counsel, a claim of ineffective assistance of counsel

cannot be resolved on direct appeal if the record on direct appeal is inadequate to

consider the claim.

       State v. Brown, 268 Neb. 943, 689 N.W.2d 347 (2004)

The Fifth Amendment's Grand Jury Clause is not applicable to the states and thus has

no relevance to the Question Presented by this assignment of error.

       State v. Mata, 275 Neb. 1,745 N.W.2d 229 (2008).




                                              2
Statutory aggravating circumstances are not the equivalent of an element of an offense,

unless the Fifth Amendment's Double Jeopardy Clause or the Sixth Amendment's jury-

trial guarantee is in question.

       Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 112 (2003;)

       Ring v. Arizona, 536 U.S. 584 (2002).

If the defendant is given a preliminary hearing and an amended complaint or information

is later filed charging a crime that includes the elements of the original crime charged

without the addition of any new element, no new preliminary hearing is required.

       State v. Ferree, 207 Neb. 593, 299 N.W.2d 777 (1980).

The application of Nebraska's post-Ring sentencing procedure to cases which were not

final at the time of Ring do not violate the Ex Post Facto Clause of our federal

constitution.

       State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003);

       State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003);

       State v. Mata, 275 Neb. 1,745 N.W.2d 229 (2008).

Under Nebraska's capital sentencing statutes it is not the province of the jury to make

EnmundlTison findings.

       State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).

Special verdicts are not authorized in criminal cases in Nebraska.

       State v. Bradley, 210 Neb. 882, 886, 317 N.W.2d 99,102 (1982).

The death penalty, when properly imposed by a state, does not violate either the eighth

or the fourteenth amendment to the United States Constitution or Neb. Const, art. [IJ, §

9.




                                           3
        State v. Mata, 275 Neb. 1,31,745 N.W.2d 229, 255 - 256 (2008).

Mere procedural changes to comply with new constitutional rules do not disadvantage a

defendant.

        State v. Mata, 275 Neb. 1, 17,745 N.W.2d 229,246 (2008).

A defense counsel's request that a murder defendant be evaluated by a mental health

professional appointed by the court does not amount to ineffective assistance of

counsel.

        State v. Lassek, 272 Neb. 523, 533, 723 N.W.2d 320, 329 (2006).

Once counsel has been appointed for an indigent accused, the accused must remain

with the appointed counsel unless one of the following conditions is met: (1) The

accused knowingly, voluntarily, and intelligently waives the right to counsel and chooses

to proceed pro se, (2) appointed counsel is incompetent, in which case new counsel is

to be appointed, or (3) the accused chooses to retain private counsel.

        State v. Molina, 271 Neb. 488,534-535,713 N.W.2d 412, 450 (2006).

The actions of trial counsel do not entitle a appellant to relief is there exists no

reasonable probability the result of the proceeding in question would have been

different.

       State v. Jackson, 275 Neb. 434, 443, 747 N.W.2d 418, 430 (2008).

Whether a jury instruction given by a trial court is correct is a question of law. When an

appellate court reviews questions of law, it has an obligation to resolve the questions

independently of the conclusion reached by the trial court.

       Roth v. Wiese, 271 Neb. 750, 766, 716 N.W.2d 419,434 (2006).




                                            4
Under Aggravating Circumstance B, the crime for which identity is to be concealed must

be a crime separate from the murder.

       State v. Lotter, 255 Neb. 456 (1998).

Error may not be predicated upon a ruling of a trial court excluding testimony of a

witness unless the substance of the evidence to be offered by the testimony was made

known to the trial judge by offer or was apparent from the context.

       State v. Corlis, 237 Neb. 97,109,465 N.W.2d 132, 141 (1991).

The abuse of discretion standard is applied to an appellate court's review of a trial

court's ruling on the admissibility of rebuttal testimony.

       State v. Molina, 271 Neb. 488,513,713 N.W.2d 412, 437 (2006).

This court has consistently interpreted the references to "similar cases" in §§ 29-2522(3)

and 29-2521.03 to include only those cases in which the death penalty has also been

imposed.

       State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007);

       State v. Gales, 269 Neb. 443, 497-98 (2005).

A jury must consider any facts increasing a crime's penalty beyond the prescribed

statutory maximum.

      Apprendi v. New Jersey, 530 U.S. 466, 490 (2000);



                                 STATEMENT OF FACTS

      The evidence presented will be described below in the context of the three

phases of Sandoval's trial: guilt phase, aggravation phase, and mitigation phase.




                                              5
                                     Guilt Phase Facts

                                        The weapons

      On March 12, 2001, the manager of Outdoors Unlimited, Dennis Newman, sold a

semiautomatic Ruger P89 9mm pistol to Adam Mittelstaedt. (2745: 21-24). The serial

number on the Ruger pistol was 312-96352. (2748: 6). Mittelstaedt then sold the Ruger

pistol to Blue Oggs sometime between August and October of 2001.         (2766: 24-25;

2767: 1-4). Oggs then sold the Ruger pistol to Jesse Zobrist.    (2767: 25; 2768: 1-6).

Zobrist purchased a laser sight from Outdoors Unlimited and put it on the Ruger pistol.

(2768: 10-13).    In December, 2001 or January, 2002, Zobrist sold the Ruger pistol to

Rubin Fernandez.      (2769: 6-8).    In January or February, 2002, Fernandez sold the

Ruger Pistol to Jose Sandoval.       (2776: 13-18). Sandoval's roommate, John Madsen,

saw Sandoval with a semiautomatic pistol prior to September 26,2002. (2739: 5-7).

      On September 5, 2002, a Glock 9mm pistol and a Heckler & Koch (H & K) 9mm

USP9 pistol were stolen from Outdoors Unlimited during a burglary.       (2753: 22-25;

2754: 1-25).     The serial number on the Glock pistol was ELV780US.    (2748: 17-22).

The serial number on the H & K pistol was 24-260. (2752: 19-21). Jorge Galindo told

his girlfriend, Cortney Barritt, that he had robbed a gun shop.     Galindo made this

statement in the presence of Sandoval. (2727: 15-25).

                                        The robbery

      On Sept 25, 2002, at about 10:45 PM, Barritt returned to her apartment from

work and saw that Galindo was with Sandoval, Eric Vela, and Gabriel Rodriguez.

(2730: 16-25; 2731: 1-7).    Sandoval, Vela, and Rodriguez left Galindo and Barritt's

apartment around 11:30 PM that evening. (2731: 8-21).




                                             6
       Sandoval's roommate, Brandon Boldt, saw Sandoval leave their apartment

around 1 AM on Sept 26, 2002 in a big Cadillac. (2725: 13-25). Sandoval's other

roommate, Madsen, knew that Sandoval's brother, Rodriguez drove an older blue

Cadillac. (2736: 20-25; 2737: 1-15).

      On September 26, 2002, at 7:50 AM, Jim Ingram, a driver for an armored car

company delivering money to the US Bank on 13th and Pasewalk in Norfolk, Nebraska,

noticed a late 80's dark blue Cadillac parked in front of the second house east of US

Bank. (2212: 3-25; 2215: 10-25; 2216: 1-8).

      Dale Collins was leaving his rental home at 1220 Taylor Ave in Norfolk, Nebraska

between 8:30 and 8:40 AM (2254: 13-15). While walking out to his van he saw three

Hispanic males walking towards the intersection of Taylor and Columbia. (2254: 13-15;

2257: 2-8). The men were all wearing baggy clothes and the guy in the center was

taller than the other two. (2256: 19-21; 2257: 15-18). The men were walking slowly and

"the guy in the center was giving directions." (2257: 16-18). When the men reached the

intersection they turned and went north on Columbia. (2257: 1).

      At approximately 8:40AM, Dale Tomka was walking west on the corner of

Columbia and Taylor. (2243: 6-9; 2244: 12-13). When he approached the intersection,

he saw three Hispanic men crossing Columbia. (2244: 16-18). He noticed the men had

on baggy jeans and sweatshirts. (2244: 25). One had a backpack on. (2244: 24-25).

He thought one or two of the men had stocking caps on. (2245: 1). At trial, Tomka

recognized the man with the backpack as Sandoval. (2247: 6-20). At the intersection,

Sandoval separated from the other two and went west on Taylor. (2245: 19-21). The

other two continued south on Columbia. (2245: 19-20).




                                          7
       Buffy Planner went through the drive-thru at US Bank around 8:50AM. (2224:

17-20). An employee named Jo Mausbach helped her. (2225: 11-17). As Jo was

helping her, Ms. Planner noticed two men walking down the alley to the bank. (2225:

24-25; 2226: 1-12). The men had sweatshirts on and one of then had a paper in his

hand. (2226: 15-16). She recognized one of the men as Eric Vela. (2226: 17-19). As

she was exiting the drive-thru, she saw another person in the parking lot. (2228: 11-19).

The person was a male with dark clothes and wearing a backpack. (2229: 2-3). She

recognized the man in the parking lot as Sandoval. (2229: 4-19).

      Catherine Burleigh was driving west through the alley north of the US Bank at

13th and Pasewalk sometime before 9:00 AM. (2266: 9-19; 2269: 20). As she was

driving, she observed two males standing in the alley. (2267: 4-5). They both had on

similar types of jackets, stocking hats, and dark sunglasses. (2267: 13-14). As she

exited the alley she came around the front of US Bank on Pasewalk to the stoplight.

(2266: 17-19). She noticed that the two men in the alley were staring in the same

direction. (2268: 1-2). She looked in the direction the two men were staring and she

saw another man dressed very similar to them walking down South 13th Street. (2268:

1-7). This man had a stocking hat, a beard, dark sunglasses, a zipped up coat, and a

backpack. (2269: 11-18). He was heading down 13th like he was going "right into the

bank." (2268: 11-13). All three of the men she observed were Hispanic. (2274: 1-3).

      Cheryl Cahoy was in the US Bank at 13th and Pasewalk in Norfolk, Nebraska on

September 26, 2002. She got to the bank at about 8:15AM. (2365: 12). She was at

the bank to meet with Lola Elwood, the branch manager, and Sue Staehr, an auditor

from Lincoln, Nebraska. (2365: 4-9). The three of them met in Mrs. Elwood's office.




                                           8
(2365: 15-19). At one point during the meeting, they noticed a man walk past the office

window. (2366: 21-22). Mrs. Cahoy heard Lola say that it was unusual because most

customers do not come from that way. (2366: 22-24).

       Mrs. Cahoy saw a man walk to the doorway of the office and pull a gun. (2367:

8-13). She heard a gunshot and saw Lola Elwood put her hands up to her face. (2367:

15-18). Mrs. Cahoy then heard a second gunshot, heard Lola scream, and put her

head down in her lap. (2367: 16-18). Mrs. Cahoy then heard "quite a few shots" and

heard voices talking about an alarm or an alarm being pulled. (2367: 20-25). She

looked up and saw something red in the parking lot. (2368: 8-9). Mrs. Cahoy heard

another shot and put her head down. (2368: 9-10). She heard people saying "Hurry up.

Hurry up." She looked up and saw people going out the door. (2368: 10-13). One of

the people going out the door had a backpack on. (2368: 13-14).

       Mrs. Cahoy asked Lola for keys to lock the doors.        Lola was unresponsive.

(2368: 18-22). She then found some keys and tried to lock the door. (2369: 4-6). She

heard a phone ringing behind the teller line and went back to answer it. (2369: 14-17).

As she went back to answer it she saw that there was a customer on the floor in front of

the counter, and Sam Sun, a bank employee, was on the floor behind the counter.

(2370: 1-3). She answered the ringing phone on the back wall and saw Jo Mausbach

on the floor. (2370: 5-7). The phone call was from their "security control center calling

and saying there had been an alarm." (2370: 7-9). While on the phone, she saw Jo

gasp for air and blood came from her mouth. (2371: 1-2).

       Around 9 AM on the morning of September 26, 2002, Diana Hladik pulled up to

the drive-thru window at US Bank. (2330: 12-13). She saw Jo Mausbach through the




                                           9
window. (2230: 19-21). No one came to help Mrs. Hladik so she assumed they were

busy. (2230: 7-8). She saw that Sam was waiting on a female customer and Jo was at

the drive through window. (2330: 19-24) She then saw a Hispanic man come up to the

front counter next to the female customer. (2331: 4-5). The Hispanic man had a gun

pointed at Sam Sun, and then motioned for Jo Mausbach to come around the corner

closer to him. (2331: 15-17). She observed Jo go towards the front where Sam Sun

was standing. (2332: 13-14). The man with the gun shot to his right, then to his left.

(2332: 16-18). At that point she hit the gas and started driving off and dialed 911, telling

them "there was a bank robbery with gunshots fired." (2332: 18-20). She then drove

her car out of the driveway of the drive-thru and stopped across the street. (2333: 11-

15).

       From across the street Diana Hladik saw three men run out of the bank with dark

clothes on. One was wearing a backpack." (2333: 24-25). She saw the three men go

down the alley to the east. (2334: 1). The men had stocking caps on and she saw an

emblem on the side of the shooter's hat. (2335: 25; 2336: 1-3; 2334: 7) She identified

Sandoval as the man she witnessed shoot Sam Sun and Jo Mausbach.                   (2334:8-

2335:20).

       At about 8:50 AM, Anne Rader was in a vehicle at the stoplight of 13th and

Pasewalk, heading north. (2274: 24-25; 2276: 5-16). She saw a woman walking into

the bank.    (2277: 3-4).   She looked away and then looked back and saw three

individuals running from the bank. (2277: 4-5). The three individuals had on stocking

caps and one was wearing a backpack. (2278: 9-11).




                                            10
       Around 8:45 AM, Micki Koepke parked in front of the bank. (2107: 18-24; 2108:

5-13). She talked to her husband on her cell phone for a couple minutes. (2109: 3-4).

During this time her back was to the bank. (2109: 4-5). She ended her call and walked

towards the bank. (2109: 5-10). As she was walking, she heard two pops coming from

inside the bank. (2109: 20-22). She looked in the window and saw someone hop over

the teller counter. (2110: 1-4). She walked through both sets of doors into the bank,

and saw Sandoval standing behind the center teller window. (2111: 2-5; 13-25). He

was leaning on the counter. Sandoval was smiling at her as he watched her walk in.

(2111: 2-9). He had on a stocking hat, sunglasses, and had facial hair. (2111: 7-9).

She then saw that he was holding a gun. (2111: 11-12). Micki then turned to leave.

(2112: 3-4). She heard two pops, glass started shattering and something hit her in the

shoulder. (2112: 7-8; 2112: 4; 2112: 6-7). She ran to her car, laid across the front seat

and called 911. (2112: 9-19).

      Ross Svoboda was working outside, near the bank, when he heard shots fired.

(2285: 13). He saw Micki Koepke running from the bank. (2285: 8-18). He heard

more shots and then saw three men run out of the bank. (2284: 6-7; 2285: 19-20). The

three men all had on dark clothing and stocking hats. (2284: 10-11).

                                      The victims

      Steve Bettendorf, a paramedic with the Norfolk Fire Department, received a

dispatch at approximately 8:48 AM "that there was a robbery in progress, with a

potential wounded subject in the parking lot of the bank as 13th and Pasewalk." (2022:

11-14). Bettendorf arrived on the scene at approximately 8:52 AM, with three other

paramedics. (2023: 22-2024: 1; 2026: 25-2027: 2). As Mr. Bettendorf got out of his




                                           11
vehicle, he saw Deputy Richard Drummond "coming across the parking lot from Burger

King" with his gun drawn. (2024: 1-4). Deputy Drummond motioned them to stay back

because the scene had not been secured. (2024: 5-6). At 8:53 AM, officers indicated

to dispatch that rescue personal were being allowed to enter the bank. (2191: 20-22).

       Mr. Bettendorf was the first paramedic to enter the bank. (2026: 12-13). The first

person he found was Evonne Tuttle and checked her and determined there were no

viable signs of life. (2029: 4-6). Mr. Bettendorf looked over the top of the teller counter

and saw a female victim, later identified as Jo Mausbach, in the back corner. (2030: 24-

2031:1).

       Paramedics Dwight Lienemann and Brian Signor assessed the victims behind

the teller counter. (2031: 5-8). Mr. Lienemann went to Sam Sun and found no pulse or

respiration. (2048: 13-19). Mr. Signor went to Jo Mausbach but found no signs of life.

(2059: 6-7).

       Deputy Drummond told Mr. Bettendorf that there was a victim located in Lola

Elwood's office. (2031: 10-15). Lola was checked for a pulse and respiration and none

were found. (2032: 1-8).

      Mr. Bettendorf was told that there was another victim in a corner office. (2034: 2-

3). This victim was determined to be Lisa Bryant. (2034: 14-16). He checked for a

carotid pulse and determined "there was no viable signs of life." (2035: 2-6). The

paramedics were in the building for no more than "five or six minutes."

                                       The apprehension

      linda Jensen was at the intersection of 13th and Pasewalk around 8:30 AM

(2294: 4-9). While sitting at the stoplight she saw three men standing in front of the




                                           12
bank. (2296: 16-17). The three men had dark sweat clothes, hoods, and orange hats

on. (2302: 7). She also observed that the men were "dark skinned." (2302: 8). They

"looked a little bewildered."   They looked as each other, and looked at different

directions, back and forth." (2296: 17-21). The men then "shrugged their shoulders"

and quickly walked around the bank to the alley. (2296: 25-2297: 1). Mrs. Jensen

turned into the alley the three men entered, but they were already gone. (2297:23-25).

At the end of the alley, she entered onto Columbia Street and turned left. (2298:1-2).

She watched the three men over some bushes until they reached Hayes Avenue.

(2298: 2-24). She saw them enter a house at 1203 Hayes. (2302: 17-19).

      Jere Anderson of Norfolk, Nebraska lived at 1203 Hayes Avenue. (2404:8). She

woke up the morning of September 22, 2002 to a man standing in her room pointing a

gun at her. (2404: 25-2405: 1). The man pointing the gun at her was Jorge Galindo.

(2410: 6-7). He cocked the gun and asked for the keys to her "white car." (2405: 3-9).

She owned a 2003 Subaru that still had in transit stickers on it. (2403: 20-2404: 3).

She told him the keys were in her purse, but he could not find them. (2405: 12-13). He

told her to get out of bed and get the keys or he would kill her. (2405: 14-15). She got

out of bed, handed him the keys and he forced her to lay on the floor. (2405: 15-17).

Galindo then ran upstairs and out the back door. (2405: 23-25). Mrs. Anderson heard

him unlock her car with the remote. (2406: 3-4). Mrs. Anderson ran to the front of the

yard, where the police where, and told them what happened. (2408: 2-6). There was a

backpack laying by the gate in the neighbor's yard. (2408: 11-12). Her car had an

OnStartracking system on it. (2412: 11-15).




                                          13
       Michelle Wiley lived across the street from Mrs. Anderson at 1205 Hayes

Avenue. (2311: 3-6). On the morning of September 26, 2002 Mrs. Wiley heard banging

on the back door and someone "yelling for help." (2313: 6-9). She went to the back

door. A backpack was lying "right by the opening of the gate that leads into" the

driveway. (2313: 18-22). Police retrieved the backpack. (2314: 6-7).

       Captain Steve Hecker of the Norfolk Police Department contacted OnStar to

have assist in locating the stolen Subaru. (2425: 3-5) Trooper Andy Moore received

the OnStar information around 11 :30 AM (2416: 10-13). Jere Anderson's white Subaru

was found along a minimum-maintenance road near Meadow Grove, Nebraska. (2418:

4-7). The vehicle was abandoned. (2421: 9-12). There were "watery" or "marshy"

areas on both sides of the car. (2421: 1-2).

       On the morning of September 26,2002, no one was at Terry Beck's home, which

was near Meadow Grove, Nebraska. (2483: 12-2484: 12). At his house he had a 1996

Ford F-150. (2484: 13-18). He also had a golf cart in the back of the pickup. (2484:

22-25). The keys to the pickup were "in the door panel down on the side." (2486: 6-8).

      Around 9:35 AM on September 26, 2002, Chief Ben Matchett of the O'Neill

Police Department became aware of the events in Norfolk, Nebraska. (2432: 6-8).

O'Neill, Nebraska is about 75 miles northwest of Norfolk, Nebraska (2430: 3-6). Chief

Matchett began "watching for vehicles or individuals that matched" bulletin descriptions

of the suspects, on Highway 275. (2432: 19-21). Chief Matchett received a call about a

suspicious vehicle westbound on Highway 275 at about 11 :29 AM (2439: 1-5). Chief

Matchett located the vehicle, which was a green and brown Ford pickup with a golf cart

in the back. (2439: 20-25). The pickup had Madison County plates. (2439: 10-15). He




                                          14
observed that there were three Hispanic males in the truck "that were slouched very low

in the seat." (2440: 19-21).

       Chief Matchett began to follow the vehicle and it then made "an abrupt right turn

into the Pizza Hut parking lot." (2441: 9-10). He followed the pickup into the parking lot.

(2443: 2-3). The pickup continued through the Alco parking lot and came to a complete

stop at the front entrance. (2444: 2-3). He observed Sandoval step out of the pickup.

(2444: 11-19). Sandoval had on "a white T-shirt that had a crown pattern or design on

the back with letters above the crown." (2444: 14-16). Sandoval walked into the Alco

store and the pickup drove off across the parking lot. (2446: 16-19).

      The pickup entered onto Highway 275 and Chief Matchett pulled it over shortly

thereafter. (2447: 1-4). He ordered the two remaining occupants out of the vehicle.

(2448: 1-5). The passenger of the vehicle was identified as Erik Vela and the driver was

identified as Jorge Galindo. (2449: 2-12). He observed that Galindo and Vela's pants

were wet up to the knee and had mud on the bottom cuffs. (2461: 2-6).

      Chief Matchett then ordered Officer Larry Wanamaker to try and find Sandoval at

the Alco store. (2451: 21-23). At the Alco, a citizen told them that Sandoval used the

phone, left the Alco, and walked into a McDonald's next door. (2468: 16-21). Officer

Wanamaker and another officer entered the McDonalds and found Sandoval. (2470: 2-

7). Sandoval had mud on the cuff of his pants. (2475: 7-8). The pickup the three

defendants were driving had been stolen from Terry Beck. (2453: 23-2454: 8).

                                      Security tape

      During the investigation of the scene at US Bank, members of the FBI obtained a

US Bank security tape. This tape captured footage of the deaths of the people in the




                                           15
bank the morning of September 26, 2002. Still photos were picked from the video and

enlarged to "show particular points of interest." (2621: 17-21). At 8:44:11 AM, you can

see two people walking through the alley next to the bank and one person looks like he

has something in his hands. (2623: 8-12; 2625: 18-19).

       Three males entered the bank at 8:44:55 AM (2630: 2-4). A male subject is

seen in the lobby of the bank with a backpack on. (E107). At 8:45:05 AM, the male

with the backpack on is seen pointing something at Mrs. Tuttle. (E109). The male with

the backpack can be seen gesturing to the drive-through teller area at 8:45:08 AM

(E112). At 8:45:10 AM, Jo Mausbach can be seen walking out of the teller window

area. (E114; E115; E116). The back of Jo Mausbach's head can be seen in the view of

the camera at 8:45:13 AM, because she is located on the other side of the counter from

the man in the lobby with the backpack. (E117). A still photo captured at 8:45:19 AM

shows the man in the lobby pointing a semiautomatic pistol at Sam Sun and a shell

casing flying from the gun. (2649: 17-23; E122). A laser sight can be seen on the gun

the man in the lobby is holding. (2540: 18-22; E122). At 8:45:20 AM, you can see the

man in the middle with the backpack on, pointing the semiautomatic weapon at Evonne

Tuttle. (E126). The still photos show the man with the backpack hand recoiling as he

fires the gun pointed at Evonne. (E124; E126: E127).

       The bank video photo stills then show the man in the lobby jumping over the

teller counter, and placing his feet on the counter.      (E130;E132; E133; E134). At

8:45:38 AM, the man in the lobby with the backpack is seen jumping back over the

counter into the lobby. (E136). In the still photo, the man with the backpack's gun has

a laser sight on it located ahead of the trigger guard. (2660: 22-24).




                                            16
                               Subsequent investigation

       Officer Brian Tighe recovered a backpack from 1205 Hayes Avenue. (2319: 10-

14). Officer Tighe turned the backpack over to Officer Randy Raney later that day.

Officer Raney search the backpack and recovered a can of silver spray paint, some gun

ammunition, and some "smoke distraction devices." (2070: 23-25).

       Officer Raney also performed a search warrant for 200 South Birch Street in

Norfolk, the Sandoval's residence. (2072: 3-10). In the room he found some 9mm

ammunition, smoke distraction devices, and notebooks. (2078: 4-12; 2080: 8-24).

       An investigation of the scene at US bank by The CSI Division of the Douglas

County Sheriffs Department uncovered "a partial shoe print pattern" retrieved from the

teller line counter top. (2158: 24-25). There were "wear-pattern characteristics" which

were unique to the right shoe recovered from Sandoval and the impression left on the

counter. (2171: 12-14; 2491: 19-24).

      Officer Theodore McCarthy recovered a finger print from the door frame of the

back door of Mrs. Anderson's house as 1203 Hayes Avenue.          (2702: 3-16). Agent

Valerie Betty, a fingerprint specialist with the F.B.I., compared the print recovered by

Officer McCarthy to a known print of Sandoval and "determined that they were made by

one and the same individual." (2711: 24-2712: 3).

                                       The weapons

      After the suspects were apprehended, Officer Gerald Bells accompanied other

officers and Jorge Galindo to recover weapons involved in the US Bank Killings. (2503:

10-11; 2505: 1-4). They drove to a couple of miles of Ewing, Nebraska on Highway

275. (2503: 18-2504: 2). Three 9mm pistols were found along Highway 275. These




                                           17
three weapons were a Glock Model 17, a Ruger Model P89 with a laser sight, and a

Heckler & Kock USP. Various magazines were recovered along Highway 275, as well

as the bullets with them. (2508: 4-2526: 13; E147; E148).

       Agent Sally Grew, a firearms and tool marks examiner in the F.B.I. laboratory

determined that the three 9mm pistols recovered on highway 275 were the weapons

involved in the US bank killings.      (2797: 1-2811: 15).     Agent Grew came to this

conclusion by positively identifying bullets casings recovered from the scene and the

bodies. (2797: 1-2811: 15).

                                      The autopsies

       Jerry Jones, M.D. was the forensic pathologist who performed the autopsies on

the five victims.

       Dr. Jones determined Sam. Sun died from "asphyxiation, secondary to the

gunshot would of the right side of the face and jaw, and blood loss into the right chest

cavity as a result of the penetrating gunshot would that involved the right side of the

chest and abdomen." (2842: 21-25).

       Dr. Jones concluded that Evonne Tuttle died from a gunshot wound to the back

of her head, which caused "bleeding into the brain stem." (2854: 2-17).

       Dr. Jones found that Lisa Bryant died from a bullet wound which entered the

back left side of her neck, went through her pharynx and larynx, and exited the left side

of the front of her neck. (2856: 1-6). "[T]his bullet caused extensive bleeding into all the

air passages," causing death by asphyxiation." (2856: 7-13). She also had a gunshot

wound to her left hand and to her upper right thigh. (2856: 14-15; 2857: 14-16).




                                            18
       During the autopsy of Lola Elwood, Dr. Jones found three gunshot wounds to her

body. (2864: 9-10). Two of the bullets went through the right upper arm, through the

chest, "hit the lungs and the heart, and caused extensive bleeding into both chest

cavities." (2864: 10-13). The third bullet "just went through the skin and soft tissue" of

her right side and did not enter the abdominal cavity. (2864: 22-25).

       The final autopsy Dr. Jones performed was on Jo Mausbach.              She had a

"gunshot wound to the left side of the mouth, jaw, and neck." (2866: 10-11). The

"mechanism of death" was "suffocation or asphyxiation due to the blood filling all the air

passages." (2867: 1-3).

                                  Aggravation Phase Facts

                                 The murder of Travis Lundell

      In August 2002, Travis Lundell was living with John Matson and Jose Sandoval

in Norfolk, Nebraska. (3022: 19-24). Travis was known for wearing a certain watch all

the time. (3028: 23-3029: 1). Also, Travis had a particular blanket on his bed that he

received as a Christmas gift from his stepfather and stepbrother. (3029: 10-18).

      John Madsen was roommates with Travis and Sandoval in August 2002. (3143:

10-14). Sandoval told Madsen "a number of times that he wanted Travis to move out,"

that Madsen "needed to kick him out." (3145: 25-3146: 1). One day, Madsen came

home from work and Travis was not there. Madsen never saw Travis again. (3147: 8-

13). He asked Sandoval if he had seen Travis and Sandoval said "[h]e didn't know

anything." (3148: 4-9). Daphine Adams last saw Travis on August 19, 2002. (3038:

12-15). Around August 26,2002, Travis was reported missing. (3024: 8-10).




                                           19
       After Travis' disappearance, Travis's mother, Janie Heuson, talked with his

roommate, Sandoval. He told her he had no idea where Travis was. (3026: 19-22).

During the conversation, Sandoval would not look Janie in the eye. (3026: 22-23).

       On March 17, 2003, Jorge Galindo led law enforcement to Travis' body. (3041:

11-3042: 7). The body was found in Madison County, Nebraska, in a wooded lake area

commonly known as Pofahl's Lake. (3042: 18-23). Galindo led them to a depression

area near the lake's edge. (3050: 11-25).

       The Douglas County CSI unit arrived on the scene and exhumed Travis'sbody.

(3052: 2-15). Shovel marks were observed around the edge of the burial site. (3066:

16-19). Travis' body was wrapped in a blanket. (3067: 15-19).

U[A] blue or dark black bandana" was tied around Travis's mouth. (3075: 7-9). John

Matson recalled seeing Sandoval with a bandana like the one gagging Travis' mouth.

(3150: 9-20).

       String was wrapped all around the body itself, including the head. (3076: 4-17).

A belt bound Travis' ankles. (3078: 18-20). The string was also "binding the ankles

together." (3078: 20-21).

      On September 27, 2002, Officer Randy Raney performed a search of Jose

Sandoval's room. (3185: 3-9). He found a billfold with Sandoval's drives license in it

and a Hastings video rental card with Travis's name on it. (3186: 24-3188: 22). He also

found a bandana in Sandoval's room that was of a similar color, design, and size as the

one that was tied in Travis's mouth. (3210: 1-5).

      When Erik Vela was processed by Officer William Kaufhold on September 16,

2002, Vela was wearing a watch. (3100: 7-11) That watch was very similar to the




                                            20
watch that Travis constantly wore. (3182: 15-18). She said, "It looks almost exactly. I

remember the clasp in the back, I couldn't ever get it off." (3182: 21-22). No watch was

found on or with Travis' body. (3268: 6-8).

                                 Sandoval's admissions

       Sometime after the body of Travis Lundell had been found, Sandoval requested

an interview and purposed "to have some knowledge about how Travis Lundell

disappeared." (3084: 9-25). On August 27, 2003, Sandoval admitted "he was there

when Travis Lundell was killed." (3085: 1-4). He admitted helping dispose of the body.

(3085: 5-7). Sandoval also said another person was there, but he refused to name

them. (3085: 8-11).

      Sandoval's story to law enforcement about Travis's death was that:

      Sandoval explained that he and Lundell and this other person were playing video

      games. It was very early in the morning, a continuation from the night before, so

      we're talking the dawn hours basically. Mr. Lundell and the person that he

      refused to name were playing together and they got into a fight. And there was

      punches being thrown. And Sandoval said he eventually joined in with the fight.

      And the culmination of the fight was Mr. Lundell being bound and left to lie on the

      floor. The way it was explained to me was that he was face down. And he

      continued to struggle, and he continued to be abused while he was lying on the

      ground.

(3085: 15-3086: 1).




                                          21
       Before telling law enforcement the story, Sandoval "had been adamant about the

fact that" Vela, Galindo, and Gabriel Rodriguez "were not there when Lundell was

killed." (3086: 18-23).

       When he gave the first rendition of how the incident unfolded, he said the name

       Vela. He said that when the other man and Lundell were fighting, he didn't join

       in. But Sandoval said that once he saw that Vela was involved, he went ahead

       and joined in the fight, which eventually turned into them tying him up. When I

       pointed that out to him, he got very angry and said that we were all trying to

       railroad him, and he quit talking."

(3086: 24-3087: 6).

      After Travis was tied up, Sandoval said he went back to playing video games and

laughed at Travis.    (3090: 6-9). Sandoval stated that "other guys" were hitting and

kicking Lundell. (3090: 10-14). The "other guys" "were going into Lundell's room and

taking his stuff." (2090: 11-13). And Sandoval said during this whole time, Lundell was

"asking and pleading to be released." (3090: 10-11). In the interview, Sandoval said

the unnamed other person "got very tired of it and finally got up and went and got a

syringe out of a satchel of drugs and drug paraphernalia that he carried with him, and

went over and injected something into Lundell as he was laying on the floor tied up."

(3091: 12-18).   During the interview, Sandoval said that after a while they realized

Lundell had not said anything and was not moving. Sandoval said he checked for a

pulse, could not find one and that Travis was dead. (3092: 17-23).

      Sandoval took Travis's blanket to bury him in and put Travis's body in the back of

the car. (3093: 15-25). "And they finally happened upon the place that Lundell was




                                             22
eventually discovered in." (3094: 4-5).     Sandoval indicated that he did most of the

digging for the hole Travis was placed in near Pofahl's Lake. (3163: 2-8).

       Darrell Dubry shared a cell in prison with Sandoval for a month or two. (3191: 7-

12). Sandoval told Dubry that Travis's mother visited him in prison. (3192: 23-24).

Sandoval said that Travis's mother was crying and wanting to know where her son was.

(3193: 1-2). Sandoval told Dubry that "he turned around and started laughing back at

her." (3193: 2-3). Sandoval also told Dubry that he had to make Travis "disappear."

(3193: 10). At some other point, Sandoval made a statement to Dubry about his

involvement in the Norfolk bank killings.        Sandoval bragged that because of what

happened at the US Bank, "when people start robbing banks from now on, they'll be

getting paid. They'll be getting the money." (3194: 2-12).

                             Sandoval's post-robbery attitude

       After his arrest on September 26, 2002, William Kaufhold of the Douglas County

CSI Unit photographed Sandoval. (3102: 3-17). Sandoval was smiling "throughout the

interview". (3105: 11-12). Kaufhold observed that the other defendants were quite,

somber, upset, and "disturbed with what happened that day." (3113: 4-6).

                                      Risk to others

       Todd Uhlir is the Director of Operations for the Burger King located at 13th and

Pasewalk across the street from the US Bank, in Norfolk, Nebraska. (3215: 23-3216:

8). A bullet hit the drive-thru window of the Burger King. (3222: 3-9). The bullet itself

did not go all the way through the glass. (3222: 15':17). It hit about a foot from the open

part of the drive through window. (3226: 23-25). There were three workers near the

drive-thru window at the time of the bank shootings. (3220: 12-16). About 200 cars a




                                            23
day go through the Burger King drive-thru.        (3218: 22-24).    And, the morning of

September 26, 2002, they were busier than normal. (3219: 3).

       The intersection of 13th and Pasewalk, near the US Bank, is one of the busiest

intersections in Norfolk, Nebraska at 8:30 in the morning. (3237: 12-14). It is at the

beginning of the cities commercial area. (3237: 17-18). The traffic in that area at 8:30

in the morning is very heavy. (3239: 9-10). Even though there was some construction

on Pasewalk half a block east of the bank, the intersection of 13th and Pasewalk was

"still very busy." (3240: 10-3241: 12).

                               The suffering of the victims

       Jerry W. Jones, M.D. found that Lisa Bryant's "cause of death was asphyxiation

due to extensive blood being present in all of the airways, secondary to the perforating

gunshot would of the left side of the neck." (3246: 15-18). Dr. Jones described this as

"a particularly horrible situation. Not only is the person choking and drowning on their

own blood, but they are struggling to breathe, and of course they are gasping to get air."

(3247: 10-14). Lisa did not die from exsanguination--shock from loss of blood. (3250:

10-14).

       Jo Mausbach "had a gunshot wound through the left side of her mouth and jaw."

(3257: 15-16). "The bullet lodged in the back of the left side of the neck. And again,

this caused extensive bleeding into all the air passages and suffocation was agonizing

death." (3257: 14-19). Jo did not die of exsanguination. (3257: 24-25). About two

minutes after Jo was shot, Cheryl Cahoy saw her cough and spit up blood. (3259: 3-

21). This indicated "that she was alive for this period of time, and again struggling for




                                           24
survival by trying to clear her passages by coughing, or snorting, or expectorating, or by

whatever means one tries to breath." (3260: 22-3261: 1).

       Sam Sun had "two important mechanisms causing death. (3254: 16-17). The

first was asphyxiation due to bleeding into all the air passages cause by "a perforating

gunshot wound to the right side of the face and jaw." (3253: 16-22). The second

mechanism of death was exsanguination due to the gunshot wound which entered "in

the lower part of the left side of the front of the neck towards the midline." (3254: 1-2;

14-15). This bullet went through the ascending aorta, right lung, right diaphragm, liver,

and then out of the abdomen. (3254: 2-8). This caused extensive bleedings into Sam's

right chest cavity. (3254: 9-11). Dr. Jones described Sam's death a "horrible" type of

death because it was "associated with suffocation due to blood in the air passages."

(3255: 2-4).

       Lola Elwood had three gunshot wounds. (3256: 2). Two of them hit her heart

and lungs.     (3256: 2-6). "Her mechanism of death is blood loss or exsanguination

internally into the chest cavities as a result of these gunshot wounds." (3256: 15-17). In

describing death by exsanguination, Dr. Jones testified that:

       Exsanguination is also not a pleasant way to die. A person who exsanguinates

      either externally or internally has several factors which come into play. The

       biggest, of course, which is blood loss.         Blood loss leading to anxiety,

      apprehension, and impending sense of doom. And as you continue to loose your

      blood volume and you lose your oxygen-carrying capacity, you also become

      short of breath, until you finally lose consciousness and die.

(3256: 25-3257: 8).




                                           25
                                     Mitigation phase

       Jose Sandoval was born in Illinois in 1979. (3813: 22-25). He was the youngest

offive brothers born to Irma Tapia. (3813: 7-23).

       In 1982, while in Texas, Ms. Tapia voluntarily placed her sons briefly in foster

care. (3889: 2-7). The reports made by the Department of Social Services show there

was no sexual abuse or physical abuse. (3950: 3-8). The reports do not show any

alcohol or drug use by Ms. Tapia. (3950: 9-11). The children were in the custody of the

State of Texas for less than six months before Sandoval's mother re-obtained custody

of her children. (3887: 19-21).

       The family finally settled in Nebraska in 1990. (3972:13).    Ms. Tapia always

provided food for her children and the house was clean. (3870:1-7). Faustino Caldera

lived with them for at least five years and left when Sandoval was fourteen or fifteen.

(4156:20-23; 4158:4-13; 4160:20-25). Sandoval did not like Mr. Caldera because he

was "mean" to him. (4157: 16-24).

       When Sandoval began attending Madison High School, it "became apparent that

he was struggling academically." (4675: 7-10). However, one of Sandoval's teachers,

Mike Sunderman, recognized Sandoval as a young man who "had a lot of leadership

potential." (4660: 15-17). Sandoval was organizing or getting kids involved in gang

activity. (4666: 14-17). There were a couple of incidents which involved a knife in the

school and the "theft of a starter pistol." (4677: 23-4678: 1).

       When Sandoval was fifteen, he spent five months at the Youth Rehabilitation and

Treatment Center in Kearney, Nebraska. (4168: 8-9). Sandoval denied having any




                                             26
drug or alcohol issues. (4624: 8-11). During his five month stay at RTC, Sandoval was

tested and received an overalllQ score of 96. (4632: 14-19; 4635: 1-3).

       When Sandoval was sixteen, he was found guilty of stealing money from a Food

Pride grocery store and sentenced to three to five years in prison. (4168: 21-4169: 17).

While in the Nebraska prison system, Sandoval went into an area in which inmates

were not allowed, attracted the attention of the guards and fought with them. (4179: 2-

3). Three of the guards received minor injuries and were taken to the hospital. (4705:

10-14).

      Sandoval was responsible for initiating a riot at the Lincoln Correctional Center

when he was the leader of the Lavita gang. (4731: 3-8). Sandoval was part of a "group

of inmates that preyed on other inmates." (4736: 8-9). Sandoval forced one inmate to

burn off a tattoo Sandoval did not like with a lit cigar. (4712: 4-6). After the inmate

burnt off his own tattoo, Sandoval beat him up. (4712: 12-13). Sandoval assaulted

another inmate who suffered facial cuts and was required to spend a night in

observation. (4719: 14-17). Sandoval served his prison term and was released. After

July 2002, Sandoval sold drugs to make money. (4191: 10-13).

      Sandoval began "thinking" about robbing a bank a month before the US Bank

killings. (4102: 14-17). Sandoval wanted to rob the US Bank because he was "greedy."

(4100: 11-15).

      On the morning of September 26, 2002, he and Vela woke up at Sandoval's

house, sometime before 4:30 AM (4090: 10-4091: 2). They turned on some music "to

get into a certain type of zone" and "psych" themselves up to rob the US Bank. (4091:

12-15). Sandoval gave Vela and Galindo their guns and they left the home around 7:30




                                          27
AM Sandoval noticed that Vela and Galindo "were kind of a little scared." (4126: 9-12).

Sandoval "was really mad because they were getting scared." (4126: 12-13). He was

mad because he did not want come all this way only "to chicken out." (4126: 14-16).

He showed them his gun and said, "I though you guys were down. I thought we were

gonna do this." (4126: 19-21). Sandoval testified that he convinced them to go ahead

with the plan and rob the bank. (4127: 7-9).

       Sandoval made the decision that the three of them should split up because all

three of them should not be seen walking down 13th Street. (4131: 22-4132: 1). They

regrouped in the front of the bank and entered. (4132: 21-24). Sandoval took out his

gun and told "one of the ladies to get over here." (4135: 9-10).

       Gilberto Balli, a special agent with the F.B.I., conducted an interview with

Sandoval in the Holt County jail. (4287: 15-18). During the whole interview, Sandoval

"had a smile on his face, cocky." (4290: 5-6). At the end of the interview, Sandoval told

Agent Balli "you'll remember me." (4289: 2-4).

       During the drive to Madison, Sandoval and Officer Elznic "had all kinds of

conversation." (4309: 4-5). At one point Sandoval decided to take a nap and asked

Officer Elznic to "wake him up just outside of Madison so" he would be ready to meet

the press. (4309: 14-18). When booked in as a prisoner in Madison County, Sandoval

stated he had not used any drugs on that date. (4328: 23-4329: 3). During the booking

process, Sandoval was joking around. (4329: 21-22).

      Sandoval did not use alcohol or drugs. (4914: 12). Sandoval has never had

hallucinations. (4914: 23-24). There was no evidence of LSD use before the robbery

and there was "ample evidence against any LSD or any other hard drug use" before the




                                           28
robbery. (4540: 18-4541: 2; 4542: 5-8).       The "evidence in this case indicates careful

planning for months" to commit the robbery. (4541: 24-4542: 1). It would have been

very unlikely that Sandoval engaged in this amount of planning, only to "make the

sudden decision to use LSD on the day of the offense."            (4542: 2-3).   Sandoval

displayed no symptoms of LSD intoxication. (4542: 21-23).

       Sandoval has antisocial personality traits. (4452: 8-10; 4454: 15-17). Sandoval

does not have an antisocial personality disorder, is not a psychopath, and is not a

sociopath. (4452: 8-10; 4480: 17; 4481: 6). Sandoval is not "impaired by mental illness

or mental defect in his ability to appreciate the wrongfulness of his conduct." (4813: 7-

19; 4813: 20- 4814: 1). Deception and manipulation is something people with antisocial

personality traits would be expected to engage in. (4928: 21-25).

                                         The sentence

       "[T]here are no statutory mitigating circumstances to weigh against four

aggravating circumstances and only one non-statutory mitigating circumstance to which

the panel gives little weight." (T472)

       Sandoval was sentenced to death on each of the five counts of first degree

murder. (T473-474)

                                         ARGUMENT

                                         Introduction

      Although addressed in the context of each assignment of error, we note here that

the actions of the district court which form the basis for Assignments of Error 1-5, 19,

20, 22, 23, 38-41 were not the subject of an objection at trial and therefore

consideration of these claim on appeal is inappropriate.




                                             29
                                ASSIGNMENT OF ERROR #1

                     Jurors referred to by a number rather than name

Sandoval assigns this error on page 13 and argues this error on pages 65-73 of his

brief.

                                               I.

                                     Question presented

Does the use of numerical identifiers rather than names to identify potential and

selected jurors violate Sandoval's Sixth Amendment rights to a presumption of

innocence and an impartial jury when juror names were available to Sandoval's defense

counsel at all relevant times?

                                               II.

                                          The facts

         Prior to voir dire, the district court ordered that the names of potential jurors not

be made public.       (209:15-16).   Upon the State's recommendation, the district court

allowed the names of the jurors to be made available to prosecution and defense

counsel to assist in preparation and jury selection, but the district court ordered that the

names of potential jurors not be disclosed "to any persons, including the defendant."

(209:24-210:2) u[W]e are going to deal with the jurors by number. So when we get to

that point, we will be using their number and not their names." (807:16-20).

         Sandoval raised no objection to the district court's order. (209:23-210:4)




                                              30
                                              III.

                                   No "anonymous" jury

       To begin we take issue with Sandoval's parlance. He consistently refers to his

jury as an "anonymous" jury. That is simply not a correct use of the term or an accurate

reflection of the record.

       In this case, it may be more appropriate to describe the jury as a 'numbers' jury

       instead of an 'anonymous' jury since only the jurors' names were withheld from

       the record. Both parties had access to all the juror information, including the

       jurors' names.... A jury is typically deemed 'anonymous' when juror information is

       withheld from the public and the parties themselves.

State v. Tucker, 259 Wis.2d 484, 493, 657 N.W.2d 374 (2003).

       Everyone pertinent to Sandoval's trial process had access to the jurors' names,

except Sandoval. This was not an "anonymous jury".

                                              IV.

                                No objection; error waived

       "[F]ailure to assert a timely objection at the time of trial constitutes a waiver of the

objection." State v. Red Kettle, 239 Neb. 317, 322,476 N.W.2d 220, 224 (1991). "One

cannot know of improper judicial conduct, gamble on a favorable result as to that

conduct, and then complain that he or she guessed wrong and does not like the

outcome." State v. Gutierrez, 272 Neb. 995, 1010, 726 N.W.2d 542, 560 (2007).

       District court judges are responsible for conducting criminal trials so that the

accused has a fair and impartial trial. But, unless the record discloses an objection to a




                                             31
judge's actions, the complaint cannot be reviewed on appeal. Hyslop v. State, 159 Neb.

802, 808, 68 N.W.2d 698, 702, 703 (1955).

        Because Sandoval offered no objection to the use of numerical identifiers rather

than names in addressing potential jurors, he has waived his ability to assert this

assignment of error.

                                              V.
                                    No prejudice shown

        Sandoval made no record before the district court and makes no argument

before this court that he suffered any actual prejudice as a result of the manner in which

the district court identified potential and seated jurors. Even if this action did constitute

a violation of the Sixth Amendment Sandoval would still be required to make a showing

that he had suffered some prejudice as a result. U.S. v. Gonzalez-Lopez, 548 U.S. 140,

156, 126 S.Ct. 2557, 2568 (2006).

        Sandoval offers no argument that this is one of those very rare factual situations

in which prejudice must be presumed. State v. McKinney, 273 Neb. 346, 370, 730

N.W.2d 74, 95 (2007) (Such cases are limited to total deprivation of counsel, trial before

a judge who is not impartial, unlawful exclusion of members of the defendant's race

from a grand jury, denial of the right to self-representation at trial, and denial of the right

to a public trial).

                                             VI.

     The district court was justified in not identifying potential jurors by name

        The question presented by this assignment of error has never been addressed

by this court.




                                             32
          The Wisconsin Supreme Court addressed this question in State v. Tucker, 259

Wis.2d 484, 498, 657 N.W.2d 374, 381 (2003) which offers a two-pronged test. Tucker

held that a court may withhold juror identification, if "(1) there is a strong reason for

concluding that it is necessary to enable the jury to perform its fact finding function, or to

ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to

minimize any risk of infringement upon the fundamental rights of the accused." United

States v. Shyrock, 342 F.3d 948, 971 (9th Gir. 2003).        The record demonstrates that

both of these two prongs are present in this case.

                                             A.

                     Strong reasons for controlling juror identification

        Most courts who have considered the first prong of the test look to a list of facts

legitimately taken into account in determining whether the jury and its ability to perform

its fact finding function requires protection.       These factors can include: "(1) the

defendant's involvement in organized crime; (2) the defendant's participation in a group

with the capacity to harm jurors; (3) the defendant's past attempts to interfere with the

judicial process; (4) the potential that, if convicted, the defendant will suffer a lengthy

incarceration and substantial monetary penalties; and (5) extensive publicity that could

enhance the possibility that jurors' names would become public and expose them to

intimidation and harassment." United States v. Ochoa-Vasquez, 428 F.3d 1015, 1034

(11 th Gir. 2005).

       This record supports a finding that four of those five factors are present in

Sandoval's case.




                                             33
                                         Factors 1 & 2:

                Organized crime; member of a group capable of harming jurors

         Sandoval was involved with gang activity and a leader or member of the Latin

Kings and Lavita gangs wholly capable of violence and intimidation.             (4541:16-18;

4731 :3-8).      While in prison at the Lincoln Correctional Center, Sandoval was

responsible for commanding a riot to occur and was part of a group that preyed on other

inmates. (4731 :3-8; 4736:8-9). Sandoval had a history of using violence to interfere

with judicial and law-enforcement processes.

              Factor 4: Defendant is facing life imprisonment or death if convicted

         Sandoval was charged with five counts of first degree murder. On each count he

faced a minimum potential sentence of life imprisonment and a maximum sentence of

death.     Sandoval was also charged with five counts of use of a deadly weapon to

commit a felony, each with a maximum penalty of fifty years consecutive imprisonment.

                                 Factor 5: Extensive publicity

         The record shows that concerns were received by the court about the extensive

publicity the case was receiving. (677:12-23). Sandoval was seen as a lighting rod for

public anger and opinion. (677:12-13). Many of the people in Madison felt like personal

victims.    (677: 19-20). This case received extensive publicity locally, state wide and

nationally.

         Valid reasons were present to motivate the district court to protect potential and

selected jurors from public identification.




                                               34
                                           B.

       The trial court adopted reasonable safeguards which minimized any risk to

                                   fundamental rights

       The second prong of the test requires trial courts to adopt reasonable safeguards

to minimize any risk of infringement upon the fundamental rights of the defendant.

       First, Sandoval admits the names of potential jurors were not withheld from the

defense. Defense counsel had the names of the potential and seated jurors. Only

Sandoval did not. Brief, p. 65.

       Second, the district court allowed Sandoval to conduct extensive voir dire. The

record of those inquiries consumes over 1000 pages of this record. Sandoval makes

absolutely no showing that an effective voir dire was impeded in any way by the

decision of the district court to limit distribution of the names of potential jurors to

defense counsel. See, State v. Bowles, 530 N.W.2d 521, 531 (Minn. 1995).

       Third, the district court adopted safeguards which protected Sandoval's

presumption of innocence. Not allowing a defendant to have access to the names of

potential jurors does not inherently prejudice a criminal defendant's presumption of

innocence. People v. Williams, 241 Mich.App. 519, 616 N.W.2d 710 (2000); State v.

Bowles, 530 N.W.2d 521.

       In Bowles, the Supreme Court of Minnesota stated that "[IJike the presence of

uniformed and armed security personnel at trial" ... "the use of an anonymous jury need

not be interpreted by jurors as a sign that the defendant is particularly dangerous or

culpable. Rather, jurors are as likely to conclude their anonymity is designed to protect

them from media or public pressures. Indeed, jurors who are unaware that anonymity is




                                           35
unusual are likely to draw no conclusions at all from the practice." 530 N.W.2d at 529-

530. During Sandoval's trial, the district court gave routine admonitions to the jurors

that they were to presume Sandoval was innocent, including:                Preliminary jury

instructions (1881 :15-16); Final instructions (T240-241).

       Sandoval did not request a specific jury instruction on the use of numbers to

identify jurors. None was given. None was required. United States v. Ochoa-Vasquez,

428 F.3d at 1035. Just because a trial court does not instruct the jurors on the specific

rationale for their anonymity does not mean there is a "reason to believe that the

absence of instructions led the jurors to conclude other that that it is a common practice

to keep jurors' names and identities in confidence." State v. Samonte, 83 Haw. 507,

523,928 P.2d 1, 16 (1996); United States v. Vario, 943 F.2d 236, 241 (1991). In fact, in

one of the cases relied upon most heavily by Sandoval, error was found exactly

because the trial court informed the jury of its rationale for keeping their names secret.

       We reverse his convictions, finding he was denied a fair trial as the result of

       comments by the trial court. In the disputed comments, the trial court advised the

      jury that because of concerns for the jurors' safety and security, steps were being

      taken to prevent further disclosure of the jurors' identities. In the context of this

       case, we conclude that the trial court did not take adequate precautions to

      minimize the prejudicial effects of the comments.

State v. Brown, 280 Kan. 65, 66,118 P.3d 1273, 1276 (2005).




                                            36
                                             VII.

                                      Harmless error

       The district court did not err in protecting the identities of prospective jurors.

However, even if that action were erroneous, the error would be harmless beyond a

reasonable doubt. Sandoval's jury would have reached the same verdicts regardless of

whether the jurors had been identified by name or number.

       In a harmless error review, an appellate court looks at the evidence upon which

       the jury rested its verdict; the inquiry is not whether in a trial that occurred without

       the error a guilty verdict would surely have been rendered, but, rather, whether

      the guilty verdict rendered in the trial was surely unattributable to the error.

State v. Poe, 2008 WL 2951801, 11 (Neb.) (Neb.,2008); State v. Archie, 273 Neb. 612,

635-636, 733 N.W.2d 513, 532 (2007).

      Sandoval was observed outside of the bank immediately prior to the robbery.

Sandoval is observed personally murdering three of the victims on the bank security

tape. Forensic evidence ties Sandoval to these murders. There is no reasonable doubt

as to Sandoval's guilt of these murders. There is no reasonable doubt that the district

court's directing that prospective and seated jurors be referred to by a number rather

than by name altered the outcome of these cases.

                                            VIII.

                                   Sandoval's authority

      Sandoval asks this Court to follow State v. Brown, 280 Kan. 65, 118 P.3d 1273

(2005) as persuasive authority.      Brief of Appellant, p. 72.      Many significant facts

distinguish Brown from Sandoval's case.




                                             37
        First, Brown was reversed because of inappropriate comments to the jury by the

trial court, not because the trial court elected to identify jurors by number. Id., 280 Kan.

65,66, 118 P.3d 1273, 1276.

        Second, in Brown the process of identifying jurors by numbers had no impact

upon the voir dire. Brown's jury was not identified by numbers until after voir dire had

been completed and Brown's jury seated. Id., 118 P.3d at 1280.

        Third, in Brown, the jury was only numbered after the jury had been seated and

after the trial had specifically informed them there had been threats upon witnesses and

the jury was being numbered for their own safety. Id., 280 Kan. 65, 76, 118 P.3d 1273,

1282.      Sandoval's jury had no reason to fear for their safety. Sandoval's jury was

identified by numbers from the outset of the prospective juror's contact with the judicial

process.     There is no basis on this record to find (or assume) that Sandoval's jury

thought the practice of being identified by numbers was anything other than the normal

judicial process. As opposed to the jury in Brown, Sandoval's jury was given no cause

for alarm-no cause for prejudice.

                                              IX.

                         Ineffective assistance of trial counsel

                                       No prejudice

        If the district court did not err in the manner in which it sought to protect

Sandoval's jury, then Sandoval suffered no prejudice as a result. If the district court

was in error, which we dispute, that error was harmless beyond a reasonable doubt and

Sandoval suffered no prejudice as a result.




                                            38
        Beyond that lies the test for constitutionally ineffective assistance of counsel,

which Sandoval cannot satisfy.

        Under Strickland, [the prisoner] has the burden to show that (1) counsel

        performed deficiently-that is, counsel did not perform at least as well as a

        criminal lawyer with ordinary training and skill in the area, and (2) this deficient

        performance actually prejudiced him in making his defense. The prejudice prong

        requires that Jackson show a reasonable probability that but for counsel's

        deficient performance, the result of the proceeding in question would have been

        different. A reasonable probability is a probability sufficient to undermine

        confidence in the outcome. Notably, we can assess the prongs in either order.

State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418, 430 (2008).

        Sandoval has not carried his burden of proof on either element of the Strickland

test.

                                    The present record

        The issue of ineffective assistance of trial counsel was not before the district

court. No evidentiary hearing was conducted upon such a claim. The present record

does not contain any indication of what defense counsel's thoughts were on this topic.

        On a claim of ineffective assistance of counsel "[t]he determining factor is

whether the record is sufficient to adequately review the question." State v. Faust, 265

Neb. 845, 869, 660 N.W.2d 844, 867 (2003), disapproved on other grounds, State v.

McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007). "If the matter has not been raised or

ruled on at the trial level and requires an evidentiary hearing, an appellate court will not

address the matter on direct appeal." Id, 265 Neb. at 869, 660 N.W.2d at 867.




                                            39
       In his brief, Sandoval claims that there can be no reasonable trial strategy behind

not objecting to protecting the names of prospective jurors. (Brief of Appellant, p. 72).

That is simply not true. As Sandoval offers us no record to support his argument of this

claim, but nonetheless raises the claim, we assume we are as free to speculate as is

Sandoval.    Trial counsel may well have been convinced Sandoval would suffer no

prejudice as a result of the district court's decision to protect Sandoval's jury. Trial

counsel had all of the information available on prospective jurors. Voir dire was not

conducted in a environment in which the defense was denied anything. Names were

only withheld from Sandoval. This situation simply could not have hampered his trial

counsel's ability to question and select an appropriate jury.

       This represents only one of a myriad of legitimate motivations for trial counsel's

lack of objection.

                                 No cautionary instruction

       Sandoval also alleges that there can be no rational explanation for trial counsel

not requesting a cautionary instruction. (Brief of Appellant, p. 72). Again, the lack of a

record denies analysis and only allows speculation.

       As a matter of law, a number of courts have held that cautionary instructions are

not necessary when empaneling an anonymous jury. Unites States v. Ochoa-Vasquez,

428 F.3d at 1035; State v. Samonte, 83 Haw. at 523, 928 P.2d at 17; United States v.

Vario, 943 F.2d at 241 (1991). That case law could well have motivated trial counsel's

actions.

       In addition, cautionary instructions are notorious for what they communicate to

jurors beyond the good intentions of the trial court. State v. Brown, 280 Kan. 65, 118




                                            40
P.3d 1273 (2005).     The Supreme Court of Minnesota found that it is possible that a

courts explanation to the jurors why they are not being publicly named risks burdening

the defendant's presumption of innocence. State v. Bowles, 530 N.W.2d at 531.

       In the end, we must never lose sight of the fact that Sandoval's counsel was not

denied any juror information, only gang member Sandoval was denied that information.



                              ASSIGNMENT OF ERROR #2

                           Instruction on juror transportation

Sandoval assigns this error on page 14 and argues it on pages 73-74.

                                             I.

                                   Question presented

Must a cautionary instruction be given jurors every time a trial court makes

arrangements for their transportation?

                                            II.

                                          Facts

       The trial court arranged to have the jurors transported by bus from Grand Island,

Nebraska, where the venire was draw, to Aurora, Nebraska, where the trial was held.

(808:23-809:9) The bailiff accompanied the jurors as they were transported. (809: 10-

12) Sandoval's trial counsel requested that the jurors be instructed that the reason for

the transportation was to simplify parking and mileage and the district court agreed.

(809:24-810:4) The record does not reflect that this instruction was actually given the

jury or that Sandoval called to the district court's attention that the instruction had not

been given.




                                            41
        The record contains no indication that any jurors "believed themselves to be in

danger" as Sandoval argues. Appellant's Brief, p. 73.

                                                  III.

                                    No objection; Waiver

        Sandoval could have easily called to the district court's attention that the agreed-

upon instruction had not been given. That action would have afforded the district court

an opportunity to correct its apparent oversight. Sandoval did not do so. Sandoval's

failure to call that oversight to the district court's attention and afford the district court the

opportunity to correct the apparent oversight waived Sandoval's right to consideration of

this assignment of error on appeal. State v. Fahlk, 246 Neb. 834, 847-848, 524 N.W.2d

39, 50 (1994).

                                               IV.

                               No authority to support claim

        Sandoval states that because the trial court did not give a cautionary instruction

on the use of transportation, Sandoval was deprived of his right to a presumption of

innocence, an impartial jury, and a fair trial.

       Sandoval fails to offer any authority in support of this argument. The record

contains no evidence supporting the essential factual predicates to this argument.

There exists no authority creating an independent burden upon the district court to so

instruct the jury.




                                               42
                                ASSIGNMENT OF ERROR #3

                      The juror's knowledge of the death penalty

Sandoval assigns this error on page 14 and argues it on pages 74-77.

                                              I.

                                   Question presented

       Do the provisions of Neb. Rev. Stat. Section 29-1603(c) (2006 Cum.Supp.)

render the death qualification of a jury a violation of state law?

                                             II.

                                        The record

       There was not objection made to the "death qualification" of Sandoval's venire.

       Sandoval fails to call to our attention a single location within this record where the

district court informed prospective or seated jurors that the State had filed a "notice of

aggravation" in Sandoval's case.

       Sandoval fails to call to our attention a single location within this record where the

district court informed prospective or seated jurors which aggravating circumstances the

State had announced an intention to produce evidence upon should Sandoval be found

guilty of the crimes charged.

                                             III.

                                       No objection

       Sandoval made no objection to the death qualification of his jury. Unless the

record discloses an objection to a judge's actions, the complaint cannot be reviewed on

appeal. Hyslop v. State, 159 Neb. at 808, 68 N.W.2d at 702, 703. "failure to assert a




                                            43
timely objection at the time of trial constitutes a waiver of the objection." State v. Red

Kettle, 239 Neb. at 322,476 N.W.2d at 224.

                                              IV.

                                   The relevant statutes

                                           29-1603

        Section 29-1603 creates an obligation, unique to first degree murder

prosecutions, for the charging Information to contain a "notice of aggravation". That

notice is for the benefit of the defendant. It requires the State to inform the defendant

which aggravating circumstances the State intends to produce evidence upon if the

defendant is found guilty of the crime charged.

        Section 29-1603(c) provides:        "The existence or contents of a notice of

aggravation shall not be disclosed to the jury until after the verdict is rendered in the trial

of guilt."

                                           29-2006

Neb. Rev. Stat. Section 29-2006 provides:

        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;

                                              V.
                                        The practice

        In Nebraska, the potential punishments for the crime of first degree murder are

either life imprisonment or death.       Neb. Rev. Stat. §§ 28-303 and 28-105 (2006




                                             44
Cum.Supp.) The facts which a guilt-phase jury must decide do not determine which of

those two penalties will be appropriate in a particular case.

       This court has held that it is appropriate to death qualify a first degree murder

jury even if no one is aware, at the time of voir dire, whether the State intends to

introduce evidence of aggravating circumstances. State v. Bradley, 236 Neb. 371, 386-

387, 461 N.W.2d 524, 537 (1990).         The process of "death qualifying" a jury in a

Nebraska first degree murder case has nothing to do with what the appropriate penalty

might ultimately be determined to be.      Death qualification is a process intended to

prevent the possibility of a death sentence during the penalty phase from tainting the

jury's guilt-phase determination. That is the exact purpose of Section 29-2006(3).

       We are required to read statutes together and construe them conjunctively to

determine the intent of the Legislature so that different provisions of the statutes may be

read to be consistent, harmonious, and sensible. State v. Hochstein, 262 Neb. 311,

321, 632 N.W.2d 273, 281 (2001). Section 29-1603 did not repeal Section 29-2006.

Both sections can be interpreted in a harmonious and sensible fashion.

       Section 29-1603 seeks to prevent a first degree murder jury from being

prejudiced in their guilt phase determination by thoughts of the horrible nature of the

specific aggravating circumstances the State believes are present in that case, but

which are only relevant to the question of appropriate punishment. Section 29-2006

seeks to eliminate from jury service any potential juror whose personal animus or

aversion to the death penalty is so great that they cannot perform the neutral fact finding

function we require of jurors in the determination of a defendant's guilt. Both statutes




                                            45
seek to protect the integrity of our jury system. These statutes are not in conflict. They

work together toward the same laudable goal-a fair trial and an accurate verdict.

                                              VI.

                             Ineffective assistance of counsel

                                  No deficient performance

       Perhaps because Sandoval's trial counsel was fully aware of the provisions of

Section 29-2006 and the myriad cases of this court approving death qualification of

prospective jurors in potential capital cases, Sandoval did not object to the death

qualification of prospective jurors.   There is no evidence of inadequate performance

present in trial counsel's declination of object.

                                        No prejudice

       In view of the facts which are in this record, there should be no question that

Sandoval suffered no prejudice as a result of his trial counsel's declination to object to

the death qualification of his jury. Sandoval's guilt of these murders could not be more

clearly proven. Sandoval's (silent) prayer must be that, if death qualification were not

conducted, he could have seated or will someday get the chance to seat a juror so

moved by their personal prejudices against the death penalty they would have spared

Sandoval an otherwise-deserved verdict of "guilty". That is not a prayer for justice.

That is a prayer for injustice.

                                          No record

       If the foregoing analysis does not suffice to dispose of the merits of this claim, we

have no relevant facts beyond those noted above upon which the question of ineffective




                                             46
assistance of trial counsel might be resolved on the record before this court. State v.

Brown, 268 Neb. 943, 952, 689 N.W.2d 347, 354 (2004).



                             ASSIGNMENT OF ERROR #4

           Preliminary examination as to the aggravating circumstances

       Sandoval assigns this error on page 14 and argues it on pages 77-80.

                                           I.

                                   Question presented

       Do statutory aggravating circumstances become elements of the offense of

Murder in the First Degree once a Notice of Aggravation is filed pursuant to Neb. Rev.

Stat. §29-1607? If so, is it error not to afford a defendant a preliminary hearing upon

aggravating circumstances?

                                           II.

                                    The proceedings

      As required by Neb. Rev. Stat. §29-1607, on October 18, 2002, Sandoval

received a preliminary hearing on five counts of Murder in the First Degree and five

counts of Use of a Weapon to Commit a Felony. (T7-8). No other preliminary hearing

was conducted.

      On December 5,2002, the State filed an Amended Information which included a

Notice of Aggravation. (T23-28).




                                          47
                                              III.

                                     No objection; Waiver

       Sandoval never requested that the trial court conduct a second preliminary

hearing after the Notice of Aggravation was filed and Sandoval never objected to the

fact that a second preliminary hearing was not conducted. Therefore, he is barred from

raising this issue on appeal. State v. Red Kettle, 239 Neb. at 322, 476 N.W.2d at 224.

                                              IV.

             The Fifth Amendment's Grand Jury Clause does not apply

       We read Sandoval's fourth assignment of error to raise a state law question, not

a federal constitutional claim.

       Nevertheless, in his Brief, Sandoval begins his argument of this assignment of

error by referring to the Fifth Amendment of our federal constitution. Id., p. 77. The

Fifth Amendment's Grand Jury Clause is not applicable to the states and thus has no

relevance to the Question Presented by this assignment of error. State v. Mata, 275

Neb. 1, 18,745 N.W.2d 229, 247 (2008). See also, Apprendi v. New Jersey, 530 U.S.

466 (2000); Alexanderv. Louisiana, 405 U.S. 625 (1972).

                                              V.
            Aggravating circumstances are not elements of the crime of

                                  Murder in the First Degree.

      Neb. Rev. Stats. §29-1606 and 1607 require that a criminal defendant have a

preliminary examination before an Information may be filed. Sandoval does not dispute,

that Sandoval had a preliminary hearing on five counts of Murder in the First Degree.




                                              48
Brief, p. 78.   Some time after that preliminary hearing the State filed the Notice of

Aggravation on December 5,2002.

       Are aggravating circumstances "elements" of the crime of Murder in the First

Degree?

      The Nebraska Legislature has said "no". Neb. Rev. Stat. §29-2519(d) states:

"aggravating circumstances are not intended to constitute elements of the crime ...

unless subsequent so required by the state or federal constitution; ..."

      The Supreme Court of the United States has said "no". The Court held that

aggravating circumstances are not the equivalent of an element of an offense, unless it

applies to the Fifth Amendment's Double Jeopardy Clause or the Sixth Amendment's

jury-trial guarantee. Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 112 (2003); Ring v.

Arizona, 536 U.S. 584 (2002).

      This court has said "no".

      We reaffirm our holding in Gales that Ring . . . did not make aggravating

      circumstances essential elements of capital murder. Instead, Ring extended

      Sixth Amendment jury protections to the finding of aggravating circumstances.

      Because the Legislature intended that aggravating circumstances not be

      considered elements unless constitutionally required, L.B. 1 also did not create

      new elements for first degree murder.

State v. Mata, 275 Neb. 1, 17-18,745 N.W.2d 229, 247 (2008).




                                           49
                                            VI.

  Section 29·1607 only guarantees a preliminary hearing on the "elements" of an

                                         offense.

       If the defendant is given a preliminary hearing and an amended complaint or

information is later filed charging a crime that includes the elements of the original crime

charged without the addition of any new element, no new preliminary hearing is

required. State v. Ferree, 207 Neb. 593,299 N.W.2d 777 (1980).

                                            VII.

                                  Sandoval's authority

       Sandoval offers the Supreme Court of New Jersey's decision in State v. Fortin,

178 N.J. 540, 843 A.2d 974 (2004). However, the unique result of Fortin turned upon

the fact that, unlike Nebraska, New Jersey has a state constitutional Grand Jury Clause

that has been held to function exactly like that of our federal constitutions Fifth

Amendment Grand Jury Clause. Fortin turned upon a question of state law, not federal

constitutional law.

       The vast majority of state courts have held that their state right to a grand jury

indictment does not apply to aggravating factors, even when a defendant has a Sixth

Amendment right to jury trial on those same factors. State v. Kendell, 723 N.W.2d 597

(Minn. 2006); State v. Dague, 143 P.3d 998; Evans v. State, 289 Md. 456, 886 A.2d 562

(2005); Mckaney v. Foreman, 209 Ariz. 268, 100 P.3d 18 (2004). (See State v. Dague,

143 P.3d at 1009 for a complete list of the courts which have not followed the Supreme

Court of New Jersey's decision in Fortin.) In addition, the state courts that have looked

at the specific issue involved in this case have all found that aggravating circumstances




                                            50
are not elements of a crime for the purposes of a preliminary examination or hearing.

State v. Hampton, 213 Ariz. 167, 140 P.3d 950 (2006); Barragan v. Superior Court, 148

Cal.App.s" 1478 (2007); Wood v. State, 158 P.3d 467 (Okla.Crim.App. 2007).

                                             VIII.

                             Ineffective assistance of counsel

         Sandoval next argues that his trial counsel was constitutionally ineffective for not

objecting. As we have argued above, the record before this court contains no showing

that his counsel's actions were deficient and contains no evidence of prejudice. Thus,

this claim should be dismissed upon its merits in this proceeding.

         If it is not so dismissed, the record currently before this court cannot support a

more detailed inquiry into any other facets or nuances of Sandoval's allegations of

ineffective assistance of counsel.



                               ASSIGNMENT OF ERROR #5

                              Jurors' discussion of the case

Sandoval assigns this error on page 14-15 and argues this error on pages 80-83 of his

brief.



                                              I.

                                   Questions presented

Did the trial court give an instruction in response to discussions among some members

of the venire?    Did Sandoval's trial council provide ineffective assistance of counsel

when he did not request voir dire of the entire jury panel?




                                             51
                                             II.

                                           Facts

       During voir dire, evidence came out that some potential jurors were discussing

amongst themselves information that they had read or seen in the news media about he

band robbery. (1741:8-13; 1742:24-25). Further investigation, allowed by the court,

revealed that some of the potential jurors from panels two and three were "just telling

each other what they read about the case in the papers."          (1761:13-1762:6). The

discussions did not involve "rumors circulating in Norfolk, and things of a nature of

anybody claiming to have inside information." (1762:6-9). "One juror was bragging

about having driven past the scene but then admitted he didn't know where the scene

was." (1762:9-11) It appeared that the discussions did not rise "to a level of injurious

information." (1762:13-15) The jurors were joking and it "was nothing other that what

they read or saw in the newspaper or saw on television and it wasn't in any great detail."

(1763:3-7) These communications occurred among a limited number of potential jurors

who were each subject to voir dire before being seated as jurors of this case.

       Sandoval did not think the discussions amounted to a level of "injurious

information." Sandoval asked the trial court "to consider giving a curative instruction

that if any of the jurors heard anything in the jury room, that they disregard that as well

as any other information they may have received." (1762:20-25) The trial court granted

his request and said, "I think we'll remind the jury that they are to disregard any

information they received outside the courtroom, no matter what the source is, and to

follow my admonition given." (1763:11-15).




                                            52
   The district court gave the jury a curative instruction on this topic during the opening

instructions to the jury.

   •   "In determining what the facts are you must rely solely on the evidence in the trial

       and that general knowledge that everyone has. You must disregard anything

       else you know about this case." (1876:10-13).

   •   "You are not to pay any attention to any news reports regarding this case. In

       fact, anything you may see or hear about this case outside the courtroom is not

       evidence unless I specifically tell you otherwise during the trial." (1877:2-6).

   •   "You shall not discuss this case with anyone, including the other members of the

       jury, until the case is submitted to you for your verdict. (1878:11-13).

   •   "Do not let others talk to you about this case, and do not listen to nay

       conversation on the subject." (1878:18-20).

   •   "Again, I admonish you, you are not to discuss this case, even with each other,

       until such time as I instruct you to do so." (1879:5-7).

In addition, the trial court repeatedly instructed the jury:

       During any recesses, you are not allowed to discuss this case amongst
       yourselves, with anyone else, including the parties, witnesses and attorneys.
       You are not to listen to any conversation about this case. You are not to read,
       view or listen to any reports about this case in the newspaper, on TV, radio or
       any other news source. You are not to go near any of the locations discussed in
       the case. And you must not form or express an opinion on the case until it is
       submitted to you at the end of the trial. If you see or hear anything about this
       case during a recess, tell the bailiff or myself about it. Do not mention it to the
       other members of the jury or anyone else.

(1905:16-1906:4) This instruction was given before every recess



                                              53
                                              III.

                                        No objection

       Sandoval never objected to the manner in which the district court addressed this

concern. Therefore, he is barred from raising this issue on appeal. State v. Red Kettle,

239 Neb. at 322, 476 N.W.2d at 224.

                                              IV.

                                          Analysis

   The facts do not support Sandoval's assignment of error. The record reflects that

once the jury was selected the trial court gave a series of instructions that addressed

any information seated jurors might have received while members of the venire.

Sandoval's reference to United States v. Resko, 3 F3d 684 (3rd Cir. 1993) would be

more relevant if the district court had not sought to address this issue with the jury.

However, in this case, the district court appropriately instructed the jury.

   Sandoval's trial counsel did not attempt to call to the trial court's attention its "failure"

to give the requested instruction exactly because the district court's instructions

addressed the matter adequately.

                                                V.
                             Issues not assigned or not argued

                               A. Questioning the entire venire

   Sandoval argues that his rights were violated "by the trial court's refusal to conduct

voir dire of the full panel". Brief, p. 83. That issue is not contained within Sandoval's

assignment of error and we will not address it further.




                                              54
                             B. Ineffective assistance of counsel

         Sandoval's claim of ineffective assistance of counsel in respect to this

assignment of error is mentioned briefly in Sandoval's brief. To say that that issue was

"argued" in any significant or substantive way is not supported by a reading of

Sandoval's brief. Assignments of error which are not argued will not be addressed by

an appellate court. In re Michael    u., 273 Neb. 198, 207, 728 N.W.2d 116, 123 (2007).
As a result, we believe that aspect of this assignment of error has been abandoned by

Sandoval.

         Beyond that, there is no rational argument that this action of trail counsel creates

a reasonable probability the result of the proceeding in question would have been

different. State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418, 430 (2008).

                                              V.
                                       Harmless error

         In view of the evidence which directly links Sandoval to his guilt of the crimes

charged, even if an error occurred here in the manner assigned, the error would be

harmless beyond a reasonable doubt.                State v. Poe,    2008 WL 2951801, 11

(Neb.,2008); State v. Archie, 273 Neb. 612, 635-636, 733 N.W.2d 513, 532 (2007).



                               ASSIGNMENT OF ERROR #6

                      The right to waive an aggravation phase jury

Sandoval assigns this error on page 15 and argues this error on pages 83-87 of his

brief.




                                             55
                                          I.

                                Question presented

Are the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States

Constitution violated by Neb. Rev. Stat. §29-2520, which allows a guilty murderer to

choose an aggravation phase jury or to have aggravating circumstances found by a

panel of judges?

                                          II.

                                        Facts

      Sandoval chose to have a jury determine the existence of the aggravating

circumstances. (3010)

                                         III.

                     No standing to assert assignment of error

      Because Sandoval chose to have the existence of the aggravating circumstances

alleged by the State to be determined by a jury, he has no standing to complain. State

v. Gales, 269 Neb. 443, 460, 694 N.W.2d 124, 146 (2005).          See also, State v.

Baltimore, 242 Neb. 562, 568, 495 N.W.2d 921, 926 (1993).

                                         IV.

                          United States v. Jackson inapplicable

      Sandoval argues that United States v. Jackson controls Nebraska's capital

sentencing procedures. This court has held otherwise.

      Requiring three judges to unanimously agree on any fact supporting an

      aggravating circumstance does not necessarily make a favorable sentence more

      likely than requiring 12 jurors to unanimously agree under alternative theories.




                                         56
       Because Mata could not avoid the risk of death by waiving his right to a jury, we

       conclude that his Jackson challenge fails.

State v. Mata, 275 Neb. 1,21,745 N.W.2d 229, 249 (2008).



                             ASSIGNMENT OF ERROR #7

                         LB1 is not Ex Post Facto Legislation

Sandoval assigns this error at page 15 and argues this assignment of error at pages 87-

92 of his brief.

                                            I.

                                  Question presented

Is the Ex Post Facto Clause violated by a trial court employing current Nebraska first

degree murder sentencing procedures enacted by LB1?

                                           II.

                                       Time line

Sept. 26, 2002      The murders

Nov. 23, 2002       Nebraska Legislature enacts new first degree murder sentencing

                    procedures which provide: "[These procedures] shall apply to any

                    murder in the first degree sentencing proceeding commencing on

                    or after Nov. 23, 2002." Laws 2002, Third Spec. Sess., LB 1.

Nov. 24,2003        The sentencing proceeding in Sandoval's trial begins. (3007:8)




                                           57
                                             III.

                     LB1 does not violate the ex post facto clause

       Sandoval's sentencing proceeding began "after Nov. 23, 2002."           There is no

question the statute controlled Sandoval's sentencing.

       This court has held in State v. Gales, 265 Neb. 598m 658 N.W.2d 604 (2003),

State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003) and reaffirmed in State v. Mata,

275 Neb. 1, 16-17,745 N.W.2d 229,246 (2008) that the application of Nebraska's post-

Ring sentencing procedure does not violate the Ex Post Facto Clause of our federal

constitution.

                                             IV.

       Even though this Court has clearly held that the statutory amendments at issue

do not violate the ex post facto clause, Sandoval states that "this Court's prior holding in

Gales concerning the procedural nature of LB 1 is wrong" and this Court should reverse

its holding. (Brief of Appellant, p. 90-91). Sandoval argues that during the commission

of Sandoval's crimes, aggravating circumstances were not elements of a crime, but

after the amendments in LB 1, aggravating circumstances were made elements of the

crime. (Brief of Appellant, p. 89-90).

       This Court has already held that LB 1 never changed the substantive nature of

the statutory aggravating circumstances. State v. Gales, 265 Neb. at 631, 658 N.W.2d

at 628. The requirement that one of more aggravating circumstances must be proved

by the State beyond a reasonable doubt before the death penalty may be considered

was never affected by LB 1.     ta,   265 Neb. at 631, 658 N.W.2d at 628. LB 1 "simply

provides that the existence of one or more aggravating circumstances must now be




                                             58
determined by a jury, instead of a judge." Id, 265 Neb. at 631, 658 N.W.2d at 628.

Aggravating circumstances were facts essential to the death penalty before and after LB

1 was passed. The range of conduct punished by death was the same before and after

LB 1.

        Also, Sandoval incorrectly states that LB 1 "changes the punishment." (Brief of

Appellant, p. 89). Death has been the maximum penalty for murder in the first degree in

Nebraska since 1973. Neb. Rev. Stat. § 28-303. LB 1 never affected this penalty and

therefore never changed the punishment for murder in the first degree.

                                            III.

                                     State v. Howard

        Sandoval argues the authority noted above is somehow at odds with this court's

ruling in State v. Howard, 182 Neb. 411,414, 155 N.W.2d 339 (1967). Brief, p. 88.

        Howard is not in conflict with Gales, Mata I and Mata II. In Howard, this court

began with the same proposition of law. "It is a general rule that questions of procedure

involving no substantial right are not ex post facto laws within the meaning of the

Constitution." Howard, 182 Neb. at 414. LB 1 did not "make a criminal act of that which

was not criminal when done", it did not "aggravate an offense or change the punishment

and make it greater than when committed", it did not "alter the rules of evidence", it did

not "deprive the accused of any substantial right or immunity possessed by him at the

time of the commission of the criminal act charged." Id. Therefore, LB 1 is not "ex post

facto within the meaning of the Constitution." Id.




                                            59
                         ASSIGNMENTS OF ERROR #8 AND #9

                                 Enmund-Tison Findings

This assignment of error is argued at pages 92-97 of Sandoval's brief.

                                              I.

                                  Questions presented

Are Enmund- Tison findings required to be made by a guilt phase jury? Are Enmund-

Tison findings required to be made by a aggravation phase jury?

                                             II.

                  Sandoval's 3/21/03 Motion to Quash is overruled

       On March 3, 2003, the State filed a Notice of Aggravation in the Second

Amended Information.       (T48-52).   Sandoval filed a Motion to Quash the Second

Amended complaint alleging that a jury must determine under a felony murder theory

that Sandoval was a major participant in the crime and exhibited reckless disregard for

human life. The trial court overruled Sandoval's Motion to Quash. (T90-91)

                                             III.

 The Enmund-Tison culpability is a mitigating circumstance, not relevant to guilt

                    or the existence of aggravating circumstances

       In Enmund v. Florida, 458 U.S. 782 (1982), the Court held that the Eighth and

Fourteenth Amendments precluded a defendant guilty of felony murder from being

sentenced to death "who aids and abets a felony in the course of which a murder is

committed by others but who does not himself kill, attempt to kill, or intend a killing take

place or that lethal force will be employed." Id, 458 U.S. at 797.




                                            60
          In Tison v. Arizona, 481 U.S. 137 (1987), the Court held that "major participation

in the felony committed, combined with reckless indifference to human life, is sufficient

to satisfy the Enmund culpability requirement." Id, 481 U.S. at 158.

          The issue of whether our federal constitution requires a specific jury finding of the

Enmund-Tison issue was answered by the Court in Cabana v. Bullock, 474 U.S. 376

(1986). This court addressed and resolved issue in State v. Gales, 265 Neb 598, 658

N.W.2d 604 (2003).

          In Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986),
          abrogated on other grounds, Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95
          L.Ed.2d 439 (1987), the Court was presented with the issue of whether the
          existence of fact necessary to impose the death penalty under the rule in
          Enmund must be determined by a jury. The Court began its analysis by noting
          that neither the Mississippi jury's verdict of guilt nor it's sentence of death
          "necessarily reflect[ed] a finding that Bullock killed, attempted to kill, or intended
          to kill." Cabana, 474 U.S. at 383, 106 S.Ct. 689. Although the Court determined
          that the Mississippi court would be required to make the Enmund determination
          in order for the death sentence to stand, it concluded that "[t]he proceeding that
          the state courts must provide Bullock need not take the form of a new sentencing
          hearing before a jury." Cabana, 474 U.S. at 392,106 S.Ct. 689.

State v. Gales, 265 Neb. at 613, 614.               In Cabana, the Court found our federal

constitution "does not require that a jury make the findings required by Enmund.            Id.,

474 U.S. at 392.        The Court also held "the sentence currently in force may stand

provided only that the requisite findings are made in an adequate proceeding before

some appropriate tribunal-be it an appellate court, a trial judge, or a jury." Id, 474 U.S.

at 392.




                                               61
       Under Nebraska's capital sentencing statutes, "it is not the province of the jury to

make" these findings. State v. Bjorklund, 258 Neb. 432, 479, 604 N.W.2d 169, 211

(2000). "The lack of a jury finding in this regard has no impact on sentencing because

the [Enmund-Tison] question is addressed as a mitigating circumstance during the

sentencing phase of a capital case." Id, 258 Neb. at 479, 604 N.W.2d at 211. "It is, by

statute, a mitigating circumstance that '[t]he offender was an accomplice in the crime

committed by another person and his participation was relatively minor.'        Neb. Rev.

Stat. § 29-2523(2)(e)." Id, 258 Neb. at 479,604 N.W.2d at 211.

      Enmund-Tison concerns are irrelevant to an accurate determination of

Sandoval's guilt of these murders regardless of the theory of first degree murder upon

which they are found.     Enmund-Tison concerns are also irrelevant to an accurate

determination of whether the alleged aggravating circumstances are present in the first

degree murders of which Sandoval has been found guilty. Enmund-Tison concerns are

only relevant in the third stage of Nebraska's first degree murder sentencing process--

when any evidence that mitigates against imposition of a sentence of death must be

heard and weighed.

                                           IV.

                           The sentencing panel's findings

      Sandoval's sentencing panel considered this item of mitigation: "The panel, in

reviewing the trial record and the record before it, finds no evidence to support the

existence of this mitigating circumstance and concludes that it does not apply."

(5075:12)




                                           62
                                           V.
                                      The record

       There was significant evidence that Sandoval was a major participant in the

events that led to, not only the murders of the three victims Sandoval personally shot to

death, but of the other two innocent victims murdered by Sandoval's subservients. The

entire enterprise, as planned by Sandoval, reeked of reckless disregard for human life.

(4102:14-17) Witness testimony and the video surveillance tape clearly show that

Sandoval shot and killed Sam Sun, Jo Mausbach, and Evonne.

       In addition, Sandoval admitted that he was the creator of the entire plan for

robbing the bank. He had been planning the entire robbery at least one month before it

took place. (4102:14-17)

       Minutes before the murders, Vela and Galindo wanted out of the plan, but

Sandoval exercised both his power over his subordinates and demonstrated his

personal determination that his plan to be executed when he overcame their desire to

abandon the robbery and convinced Vela and Galindo to complete Sandoval's plan.

(4127:7-9)

                                           IV.

          Ring does not require that a jury makes Enmund-Tison findings

      Contrary to Sandoval's argument (Brief, p. 96), Ring does not require a trial court

to instruct an aggravation phase jury to make Enmund- Tison findings. The Court has

clearly stated that the Enmund- Tison rule is a "substanantive limitation on sentencing"

and does not need to be enforced by a jury. Cabana v. Bullock, 474 U.S. at 386. A

number of state courts have addressed this issue and ruled that the United States




                                          63
Constitution and the Ring do not require a jury to make Enmun d- Tison findings. State v.

Ring, 204 Ariz. 534, 564-565, 65 P.3d 915, 946-947 (2003); Manley v. State, 918 A.2d

321,327-328 (DeI.Supr. 2007); Perez v. State, 919 So.2d 347, 365 (Fla. 2005); State v.

Fry, 138 N.M. 700, 126 P.3d 516, 528 (2005); Brown v. State, 67 P.3d 917, 920

(Okla.Crim.App. 2003).

                                               V.
                               Special Verdicts are not authorized

        Sandoval wanted the jury to make Enmund- Tison findings by way of a "special

verdict."    (Brief, p. 93).     Special verdicts are not authorized in criminal cases in

Nebraska. State v. Bradley, 210 Neb. 882, 886, 317 N.W.2d 99, 102 (1982).



                                 ASSIGNMENT OF ERROR #10

                       The constitutionality of a sentence of death

        Sandoval assigns this error on page 16 and argues this error on pages 97-100 of

his brief.

                                               I.

                                      Question presented

Does the authorization of death as a criminal sanction for any crime violate the Cruel

and Unusual Punishment Clause of either our federal or state constitutions?




                                               64
                                             II.

                                   The holding in Mata

        This court reiterated its opinion of the current state of the law on the question of

the constitutional appropriateness of death as a criminal sanction under both the state

and federal constitutions in State v. Mata, 275 Neb. 1, 31, 745 N.W.2d 229, 255 -

256 (2008). "[T]he death penalty, when properly imposed by a state, does not violate

either the eighth or [the] fourteenth amendment [to] the United States Constitution or

Neb. Const, art. [I], § 9."

        We are unaware of any evolution in either state or national thinking upon that

question since that opinion was issued in February 2008. We believe that statement

resolves this assignment of error against Sandoval.

                                             III.

                                 The federal constitution

                                        No authority

       The Supreme Court of the United States has never held that the Eighth

Amendment of our federal constitution prohibits the authorization of death as a criminal

sanction for certain crimes.

                                  The math doesn't work

       Measuring "evolving standards of decency" under our federal constitution is a

piece of alchemy left exclusively in the hands of appellate jurists rather than legislators.

The case law on measuring these evolving standards offers so many options or points

of reference one must conclude that, in the end and perhaps necessarily, the standard

is utterly subjective.




                                            65
       While the Court has never held that the death penalty, as a criminal sanction, is

prohibited by the Eighth Amendment. The Court has also indicated that counting the

reactions of state legislatures are to be entertained as omens of the ultimate

constitutional answer.

       In that context we note that our federal constitution is very specific and objective

about what "numbers" are necessary to establish that our federal constitution has

"evolved". Article V of our federal constitution requires the approval of three fourths of

the states before the meaning of our federal constitution could "evolve" by amendment.

Today, amendment of our federal constitution would require the consensus of at least

37 states. Today, 38 states and the federal government affirmatively authorize death as

a criminal sanction for certain crimes. That is the status quo. That is where "evolution"

has brought our current national standard of "decency".

       By Article V measurement, at least 37 states would need to no longer employ

death as a criminal sanction for any crime before contemporary national morals could

be accurately said to have "evolved" to the point where the death penalty as a criminal

sanction would no longer be acceptable and the meaning of our federal constitution

should be altered. Sandoval notes that only 12 states have chosen not to authorize

death as a criminal sanction under any circumstances. When 25 more states follow

suit, there will be some objective merit to Sandoval's claim. There is no merit to it now.

                                            IV.

                              The Nebraska Constitution

       If Sandoval's theory is that there exists an independent claim under the Nebraska

Constitution, we are unaward of any authority for that proposition.




                                            66
         Prior to this court's opinion in State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008),

this court repeatedly held that the protections of our state and federal constitutions were

identical. Even in Mata, this court recognized: "[W]e have stated that the Nebraska

Constitution's cruel and unusual punishment provision " 'does not require more than

does the [Eighth Amendment to the] U.S. Constitution.''' State v. Mata, 275 Neb. 1,

33-34, 745 N.W.2d 229, 257 (2008). Yet in Mata this court stated: "Obviously, we

cannot, under the U.S. Constitution, declare that electrocution violates its cruel and

unusual punishment provision because the U.S. Supreme Court has held otherwise."

Id. Thus, in Mata, this court departed from our prior understanding of the protections of

our state constitution and adopted a new path. "[W]e will decide the issue under the

Nebraska Constitution." Id., 275 Neb. at 34.

         Unfortuantely, Mata draws exclusively upon language from federal cases for its

analysis of the protections of the Nebraska Constitution. There was no independent

Nebraska case law articulating a uniquely Nebraska standard for the evaluation of "cruel

and unusual punishment" questions under the Nebraska Constitution prior to Mata, and

there is none now. Certainly, there is none relevant to this assignment of error.

         To the extent this court's dicta in Mata on the propriety of the death penalty as a

criminal sanction under the Nebraska Constitution might suffice as authoritative here,

we offer it. To the extent this court might elect to evaluate this unique assignment of

error under a standard unique to the Nebraska Constitution, we all write on a clean

slate.

         All we can offer is this: Mata was convicted of five counts of first degree murder.

The maximum punishment for each count, regardless of the theory under which guilt




                                             67
was found, is death. No mitigating circumstances worthy of weight were offered by

Sandoval.     If our Nebraska standards of decency have evolved to the point where

Sandoval's crimes do not merit death as a punishment, we are unaware of any

indication of that evolution. We suspect any unique Nebraska sense of "decency"

argues in favor of imposing the maximum available punishment for Sandoval's murders.

         Finally, no matter how many innocents Sandoval chose to murder in cold blood

that morning in 2002, he can only be executed once. Yet each of these five sentences

should stand as a testament to our measured disgust with Sandoval's crimes.


                             ASSIGNMENT OF ERROR #11

                                Due Process and LB 1

Sandoval assigns this error on page 16 and argues this error on pages 100-102 of his

brief.

                                             I.

                                 Question presented

Was Sandoval denied the ability to assert a "defense" to his crimes when the district

court employed in the trial of his case procedures enacted by the Nebraska Legislature

after the date of Sandoval's five murders?

                                             II.

                 A procedural defect is entitled to a procedural cure

         Sandoval complains that the Nebraska Legislature denied him due process of

law when it enacted procedures intended to guarantee him a fair and constitutional

determination of sentence.




                                             68
       The constitutional defect recognized by Ring v. Arizona was procedural. The

cure to that defect enacted by the Nebraska Legislature (LB 1) was procedural. This

court held in Gales and again in Mata that the application of those procedures to crimes

committed prior to the enactment of LB 1 was appropriate. "[M]ere procedural changes

to comply with new constitutional rules do not disadvantage a defendant." State v.

Mata, 275 Neb. 1, 17,745 N.W.2d 229,246 (2008).

       As this court also noted in Mata, Ring v. Arizona never rendered the death

penalty unconstitutional, only the procedure by which that determination was to be

reached. Therefore, even after Ring and before the enactment of LB 1, Sandoval was

always exposed to the risk of a death penalty for his five murders. The only question

was whether he would be afforded a constitutional procedure by which an appropriate

punishment was determined. With the enactment and application of L.B. 1 to his trial,

Sandoval received exactly that to which he is entitled-a constitutional procedure that

lead to a constitutional punishment for his crimes.

                                             III.

                                Coleman v. McCormick

      Sandoval's only authority for this assignment of error is Coleman v. McCormick,

874 F.2d 1280 (9th Cir. 1989). The facts and legal scenario in Colman are completely

distinguishable from Sandoval's situation.

      In Coelman, the defendant was convicted and sentenced to death under a

Montana statute that made death the mandatory punishment for the crime of

Aggravated Kidnapping. Id, 874 F.2d at 1285-86. The Montana Supreme Court later

found the mandatory death penalty statute unconstitutional. Coleman's finding of guilt




                                             69
was upheld but his case was remanded for resentencing.              Id, 874 F.2d at 1285.

Montana amended its statute. Id, 874 F.2d at 1285. Colman was re-sentenced under

the new statue and again sentenced to death. Id, 874 F.2d at 1285.

         The Ninth Circuit reasoned Coleman was entitled to an entirely new trial, not just

a resentencing, because the existence of the mandatory death sentence at his first trial

influenced strategic decisions made in defending the guilt phase of the trial. Id, 874

F.2d at 1289.

         As opposed to Coleman, neither the Court's decision in Ring nor the subsequent

enactment of LB 1, had any impact whatsoever upon the manner in which Sandoval

strategically approached the guilt phase of his trial. Sandoval only had one trial. From

the outset he had full notice of the crime charged, full notice of the range of potential

punishment, full notice the State intended to offer evidence necessary to make death a

possible punishment, and full notice of the procedure by which his appropriate

punishment would be determined. "In the context of criminal proceedings, due process

generally requires the defendant be given notice and adequate opportunity to defend

himself." State v. Gales, 269 Neb. at 460,694 N.W.2d at 146.

         Coleman is not relevant to the proper resolution of this assignment of error.



                              ASSIGNMENT OF ERROR #12

    Ineffective Assistance of Counsel; Requesting an evaluation of Sandoval's

                                        competency

Sandoval assigns this error on page 16 and argues this error on pages 103-105 of his

brief.




                                             70
                                                 I.

                                       Question presented

    Was it ineffective assistance of counsel for Sandoval's trial counsel to request the

    district court appoint someone to evaluate Sandoval's competency to stand trial?

                                                 II.

                                               Facts

           On February 20, 2003, in response to a request by Sandoval, Sandoval's trial

    counsel filed a Motion to Withdraw. (T41). In the Motion to Withdraw, Sandoval's trial

    counsel stated that he advised Sandoval on the consequences of a withdrawal. (T41).

    The Motion to Withdraw also stated that Sandoval's comments and responses during

    these advisements caused his counsel to have a material concern that Sandoval might

    not be competent and that Sandoval's counsel was obligated to inform the court of the

    concerns.   (T41).   The trial court overruled the Motion to Withdraw.        (48:20-49:6).

I   Sandoval then asked the court if he could be allowed to proceed pro se. (49:16-19).

           Sandoval's trial counsel then advised the court with these statements: "In the

    motion I alerted the Court, as I felt it was my duty as an officer of the court, that I have

    concerns about Mr. Sandoval's competency for the matters contained in the motion.

    His reasons advanced to me for wanting me to withdraw and for speeding the trial up to

    an irrational extent, worry me that there is some defect that might be present that leads

    him to make these requests in this fashion." (49:21-50:4)

           Sandoval's trial counsel did bring competency concerns before the court. It was

    the State that requested that the district court order a competency evaluation by a

    professional, as allowed under Neb. Rev. Stat. §29-1823. (50:17-51:12)




                                                71
                                                    III.

                                      No facts to support argument

           Attorneys have a duty, "when a question of a client's competency arises, to

    ensure that the client is 'capable of making a rational choice among rationally

    understood probabilities.''' State v. Johnson, 4 Neb.App. 776, 784, 551 N.W.2d 742,

    749 (Neb.App., 1996) (quoting Galowskiv. Berge, 78 F.3d 1176, 1180 (7th Cir. 1996)).

           Neb. Rev. Stat. §29-1823 provides that concerns about a defendant's

    competency to stand trial are properly brought to the district court's attention by any

    party having a concern for the defendant's competency. Sandoval's counsel did so in

    the context of Sandoval indicating to the district court he desired to proceed to trial pro

    se.   Brief, p. 103. Sandoval's trial counsel called the competency issue to the trial

    court's attention at that time.

           Sandoval's    trial   counsel    never    requested   a court-appointed   psychiatric

I   evaluation, the State did.         Thus, Sandoval's complaint that his trial counsel was

    ineffective "in requesting a court-appointed evaluation" fails on the facts.

                                                    III.

                                       No ineffective assistance

           Even if Sandoval's trial counsel had requested an evaluation, this court has held

    that a defense counsel's request that a murder defendant be evaluated by a mental

    health professional appointed by the court does not amount to ineffective assistance of

    counsel. State v. Lassek, 272 Neb. 523, 533, 723 N.W.2d 320, 329 (2006).




                                                    72
                                            IV.

                     Trial court's discretion not assigned as error

        Once the question of a defendant's competency has been called to the trial

court's attention, the actual ordering of a court-appointed evaluation of the defendant

rests within the discretion of the trial court under §29-1823. Sandoval does not assign

as error the district court's order directing an evaluation of Sandoval under those

circumstances.



                             ASSIGNMENT OF ERROR #13

                                 Testimony of Dr. Moore

Sandoval assigns this error on pages 16-17 and argues this error on pages 105-110 of

his brief.

                                             I.



Did the trial court err in receiving the mental health testimony of Dr. Moore as rebuttal to

mental health testimony offered by Sandoval at the mitigation phase of his trial?

                                             II.

                                           Facts

        Dr. Moore was appointed by the district court to conduct a competency to stand

trial evaluation of Sandoval. Dr. Moore's testimony was not offered during the guilt or

aggravation phases of Sandoval's trial. By the time that Dr. Moore was called as a

witness,     Sandoval had been found guilty of these          murders and aggravating

circumstances had been proven to exist which merited consideration of death as the




                                            73
    appropriate criminal sanction. Questions of Sandoval's responsibility for these murders

    and his eligibility for a sentence of death had already been resolved. All that remained

    was Sandoval's opportunity to mitigate his punishment.

           Dr. Moore's testimony was offered to rebut other mental health testimony offered

    by Sandoval at the mitigation phase hearing. (4904) Sandoval's trial counsel objected

    to that testimony.

           MR. MOORE:       At this point, I would interpose an objection to any further

           testimony about this meeting [between Dr. Moore and Sandoval] or any

           statements that [Sandoval] made to this doctor.

    (4909:16-4910:8)     Mr. Moore renewed his objection and obtained a continuing

    objection.   (4911 :3-4912:18; 4912:24-4913:3; 4917:5-24; 4920:25-4922:20; 4927;

    4928:11; 4930:12; 4931:5; 4933:20; 4935:16)          The sentencing panel ultimately

    sustained Mr. Moore's objection.

I          In Addition, the Court took under advisement the objection to the testimony

           offered by Dr. Y. Scott Moore reflecting his interview of the defendant which was

          conducted pursuant to an order of the Court for an examination to determine if

          the defendant was mentally competent to stand trial. The Court sustains the

          defendant's objection to the testimony of Dr. Y. Scott Moore as to the responses

          the defendant gave to Dr. Y. Scott Moore at the time of said interview and the

          panel has not considered those responses in its determination.

    (T466).

          Dr. Moore's testimony was offered to explain the manner in which mental health

    issues and terminology are professionally categorized and explained.      The defense




                                              74
    raised the issue of personality traits and personality disorders. (4927-4928) Dr. Moore's

    testimony explains the terms employed by Sandoval in his offer of mitigation.

                                                   III.

             Sandoval does not identify the allegedly offensive testimony admitted

             Sandoval asserts that some of Dr. Moore's testimony was based on "statements

    made by the appellant" at the court ordered competency examination given by Dr.

    Moore. (Brief, p. 105).

             Sandoval's argument lacks adequate specificity. Brief, p. 105. Sandoval does

    not note that the sentencing panel sustained Mr. Moore's objections to Dr. Moore's

    testimony to the extent it was based upon statements Sandoval made to Dr. Moore

    during the competency to stand trial examination. (4939:6-20)              Sandoval does not

    attempt to distinguish for us the information kept out by the sentencing panel's

    sustaining of Mr. Moore's objection and that testimony which Sandoval believes

I   remained inappropriately before the sentencing panel.            Without that specificity, it is

    difficult for the State to offer a response helpful to this court.

                                                   IV.

      Sandoval's authority is not focused upon the mitigation phase dynamics which

                                  gives rise to this claim of error

            The authority cited by Sandoval never focuses upon what actually occurred in

    this trial.

             First, it should be born in mind that the entire question of Dr. Moore's

    examination was triggered by Sandoval's desire to proceed pro se. The State did not




                                                   75
    create the need for the examination and the sentencing panel disregarded any

    statements made by Sandoval to Dr. Moore in the context of that interview.

           Second, the State never offered Dr. Moore's testimony "against" Sandoval at

    trial. The State had the burden of proof at both the guilt and aggravation phases of

    Sandoval's trial. Those are the phases when the State offers evidence "against" a

    defendant. The State never offered Dr. Moore's testimony at either of those phases

    "against" Sandoval.

           Third, it was Sandoval who opened the door to mental health issues when he

    affirmatively offered such evidence in the mitigation hearing. In that hearing, if there is

    any burden at all, Sandoval carried the burden of going forward-a burden of

    persuasion. The State did not introduce Dr. Moore's testimony "against" Sandoval at

    the mitigation hearing. Sandoval having raised mental health issues at the mitigation

    hearing, the State offered Dr. Moore's testimony to explain or rebut testimony elicited by

I   Sandoval........no psychological inability to distinguish right for wrong; no evidence of LSD

    or other intoxication.     These are issues Sandoval affirmatively injected into the

    mitigation phase of his trial.

           Sandoval should not be allowed to offer mental health evidence in mitigation and

    then deny the State the opportunity for meaningful explaination or rebuttal of such

    evidence. To offer mental health evidence at the mitigation phase should function as a

    waiver of any protections to which Sandoval may have otherwise been entitled.




                                                76
                                     ASSIGNMENT OF ERROR #14

Ineffective assistance of counsel; failure to object to Dr. Moore's testimony about

                                       antisocial personality traits

        Sandoval assigns this error on page 14 and argues this error on pages 110-112

of his brief.

                                                        I.

                                            Question presented

       Did Sandoval's trial counsel provide ineffective assistance of counsel by not

objecting to the testimony of Dr. Moore when he explained the diagnostic nature of

people with antisocial personality traits?

                                                       II.

                                                     Facts

       Sandoval's trial counsel, Mr. Moore, had several standing objections to Dr.

Moore's   t~still1()ny   l:>Y the   till1~ tb~   statement in quesnon was elicited from Dr. Moore.
(4911 :3-4912:18; 4912:24-4913:3;                  4917:5-24;   4920:25-4922:20;   4927; 4928:11;

4930:12; 4931:5; 4933:20; 4935:16)

       In the mitigation phase of his trial Sandoval was seeking to persuade the

sentencing panel that both elements of Mitigating Circumstance G-metal defect and

intoxication-mitigated Sandoval's ability "to appreciate the wrongfulness of his . . .

conduct or to conform his ... conduct to the requirements of law". (4927) Dr. Moore's

testimony addressed both of those claims with respect to explaining the effect of

"antisocial personality traits" on the ability to recognize the "wrongfulness" of his conduct

(4932:22-4933:2) and the likelihood of intoxication. (4936:15-25)




                                                       77
                                                III.

                                             Analysis

                                                A.

           The simple answer to this claim of error is: Yes, Sandoval's trial counsel did

    object to the testimony in question. Mr. Moore had several continuing objections to the

    testimony of Dr. Moore on the record at the time of the statement in question. Mr.

    Moore cannot be ineffective for failing to object when, in fact, he objected to the

    testimony in question.

                                                B.

           The Strickland elements are deficient performance and prejudice.          To obtain

    relief, Sandoval must first convince this court that Mr. Moore did not object enough to

    Dr. Moore's testimony. On this record that is a difficult conclusion to reach. Mr. Moore

    objected numerous times and his objections were all overruled. That is not deficient
I
I   performance of counsel and that should end our inquiry.

                                                c.
           If necessary, we must also consider if Sandoval suffered any prejudice. In doing

    so, we must bear in mind that Sandoval suffered no prejudice to the determination of his

    guilt of these murders or the existence of aggravating circumstances. This testimony

    was not considered in either of those determinations.

           This matter arises in the context of a mitigation hearing. A context very different

    from that present in State v. Beerman.

       •   Evidentiary standards are relaxed in the mitigation phase. There is no burden of

           proof on the question of mitigation. "[T] the risk of nonproduction and




                                               78
             nonpersuasion is on the defendant." State v. Gales, 269 Neb. 443,459,694

             N.W.2d 124, 146 (2005). "[TJhe defendant may present evidence which is

             probative of the existence of a statutory or nonstatutory mitigating circumstance,

             ... " Id. (emphasis added). If the murderer can offer any probative evidence in

             mitigation, then the State should likewise be able to offer any probative evidence

             to counter such an offer. In that context, the testimony of Dr. Moore is wholly

             acceptable.

         •   This testimony was not placed before a jury but a panel of judges sophisticated

             in the evaluation of credibility.

         •   Dr. Moore did not testify that he felt any specific testimony by Sandoval was

             untruthful. Dr. Moore testified that in dealing professionally with the personality

             "trait" that Sandoval was asserting he possessed one should not take what they

             say at face value without first looking to other evidence to determine the
Ii
I            accuracy of any particular factual assertion,

             In so testifying Dr. Moore was not giving an opinion "that another mentally and

     physically competent witness is telling the truth." State v. Beerman, 231 Neb. 380, 396,

     436 N.W.2d 499, 509 (1989). Relying upon Beerman, the Nebraska Court of Appeals

     addressed this issue in its opinion in State v. Myers, 15 Neb.App. 308,726 N.W.2d 198

     (2006). In Myers, an expert witness testified about how forthcoming child victims of sex

     crimes are when first being interviewed.     Myers asserted error in the fact that such

     testimony was allowed, because it "constituted an improper opinion about the credibility

     of the witnesses." Id, 15 Neb.App. at 320, 726 N.W.2d at 208. The Court of Appeals

     found no merit to his assignment of error because the expert witness based his opinion




                                                 79
on his own experience of how child victims of sex crimes typically act. In addition, the

expert witness did not make a statement on whether he specifically believed the

testimony of the child victims.

       The only testimony of Dr. Moore the sentencing panel noted considering was his

opinion that "the Axis II diagnostic impression and Personality Disorder NOS anti-social

and schizotypal traits did not diminish the capacity of Mr. Sandoval to appreciate the

wrongfulness of his conduct or to conform his conduct to the requirements of the law."

(T467).

       Dr. Moore's testimony did not inappropriately prejudice Sandoval.



                     ASSIGNMENT OF ERROR #15, 16, 17 and 18

                       Replacement of Sandoval's trial counsel

       Sandoval assigns these errors on page 17 and argues this error on pages 112-



NOTE: Sandoval does not offer distinct argument in support of these assignments of

error, but offers a single argument in support of all four. That argument is summarized

in what we believe to be the Question Presented.

                                            I.

                                  Question presented

      Did the trial court err in not appointing substitute counsel for Sandoval?




                                           80
                                             II.

                            Sandoval's motion to withdraw

       On February 20, 2003, Sandoval, through his trial counsel, filed a Motion to

Withdraw. (T41-42). On March 3, 2003, the trial court held a hearing which addressed

Sandoval's Motion to Withdraw. (T66-68). At the hearing, when asked why he wanted

his trial counsel to withdraw, Sandoval stated, "We don't see eye to eye." (33:5-7).

Sandoval said there were no communication problems between the two of them and

that his trial counsel has done everything he requested him to do. (34:7-14; 35:3-8).

       At the hearing Sandoval's trial counsel stated, "I told him I was not in a position of

any conflict of interest. There was nothing at this point that ethically requires me to

withdraw from representing him.        We have no conflict of interest."         (38:17-20).

Sandoval's trial counsel stated that Sandoval's constitutional right to a speedy trial

would not prevent him from representing Sandoval. (39:14-19).

       After receiving this evidence at the hearing, the trial court ruled that there was no

basis for the Motion to Withdraw.      (48:20-24). The trial court said, "In my opinion,

everything I have seen in the file and from what you have explained to me, my findings

are that Mr. Moore provided you with the proper representation at this point, and

therefore there is no basis for his motion." (49:2-6).

       The debate over Sandoval's respresentation continued throughout the trial.

                                                   III.

                                          The standard

       "[T]he right of an indigent defendant to have counsel does not give him the right

to be represented by counsel of his own choosing, and mere distrust of, or




                                            81
dissatisfaction with, appointed counsel is not enough to secure the appointment of

substitute counsel." State v. McPhail, 228 Neb. 117, 120,421 N.W.2d 443, 445 (1988).

       Once counsel has been appointed for an indigent accused, the accused must

       remain with the appointed counsel unless one of the following conditions is met:

       (1) The accused knowingly, voluntarily, and intelligently waives the right to

       counsel and chooses to proceed pro se, (2) appointed counsel is incompetent, in

       which case new counsel is to be appointed, or (3) the accused chooses to retain

       private counsel.

State v, Molina, 271 Neb. 488,534-535,713 N.W.2d 412, 450 (2006).

                                            IV.

                  No desire to proceed pro se; No retained counsel

       Sandoval clearly stated that he would rather be appointed new counsel than

proceed pro se. (33:12-25). Sandoval also never choose to retain private counsel.



                                      Competence

       Only the second of the Molina factors remains:              Is appointed counsel

"incompetent"?

       It is true that Molina states that a conflict of interest may render an appointed

counsel "incompetent".    However, we note that the facts which rendered appointed

counsel in Molina "incompetent" by virtue of a conflict of interest are not present here.

Molina sought a hearing before the district court at which he desired to establish that his

current trial counsel had been constitutionally ineffective.     It was that self-created

conflict which merited appointment of new counsel in Molina.




                                            82
                This court has said that "[t]he phrase 'conflict of interest' denotes a situation in

         which regard for one duty tends to lead to disregard for another or where a lawyer's

         representation of one client is rendered less effective by reason of his representation of

         another client.   State v. Dunster, 262 Neb. 329, 347, 631 N.W.2d 879, 897 (2001).

         Sandoval has the burden of proving that a conflict of interest resulted in conduct by

         counsel that was detrimental to the defense. Id., 262 Neb. at 347,631 N.W.2d at 897.

                                           No lack of professionalism

                At the hearing Sandoval clearly stated that his trial counsel was not incompetent.

         He said that there was no communication problem and that his trial counsel did

         everything he was requested to do. There was no conflict of interest between Sandoval

         and his trial counsel. Sandoval merely stated that his reason for filing the motion to

         withdraw and requesting newly appointed counsel was that he did not see eye to eye

         with his current trial counsel.

'.iit;          Sandoval has offered no evidence that his triCiI counset WCiS professionCilly

         incompetent.

                                              Customer of US Bank

                On March 31, 2003, Sandoval's trial counsel disclosed to the court the fact that

         he was a customer of the US Bank where the murders occurred. (122:6-8). Sandoval's

         trial counsel disclosed this fact because Sandoval thought it "mayor may not be a

         conflict of interest."   (122:1-5)   Before the murders, Sandoval's trial counsel had a

         checking account with US Bank. (122:12-13) He knew Sam Sun and Jo Mausbach by

         name but did not know them "personally at all." (122:20-23; 123:5-13) He also "briefly

         handled a case involving [Sam Sun's] son's case in juvenile court." (122:23-25) He




                                                      83
talked with Sam Sun about Sam Sun's son's case once while filling in for another

attorney. (122:25-123:4)

         Sandoval's trial counsel stated to the court, "I don't feel that any of these contacts

or acquaintances rise to the level that causes any problem for me to the level of

impacting, in any degree, my professional representation of Mr. Sandoval."                 After

receiving Sandoval's trial counsel's disclosure, the trial court found no basis for a

mandatory withdrawal. (125:9-10).

         The record shows that the trial court inquired into this potential conflict of interest.

(122:1-125:10).     The trial court reasonably concluded that Sandoval's trial counsel's

associations with US Bank, Sam Sun and Jo Mausbach did not create a conflict of

interest. (125:9-10). Sandoval has not proven that a conflict of interest existed, nor has

he proven that a potential conflict of interest was detrimental to his defense.

                                          Fiscal issues

         On May 10, 2004, the trial court received testimony at a Motion to Continue

Mitigation Hearing. (T383-384). Sandoval's trial counsel testified that he was confident

that the Madison County Public Defender's Office would have "adequate funding" and

"significant expenses" covered for Sandoval's case through the 2005 fiscal year.

(3554:21-3555:3).

         In his brief, Sandoval states that his trial counsel "had bankrolled many

thousands of dollars and was concerned about getting paid." (Brief, p. 113-114). In

actuality, Sandoval's trial counsel was not concerned about getting paid. Sandoval's

trial counsel testified that he turned in a reimbursement for expenses to the county

clerk.    (3542:9-13)     These expenses were the result of attending a number of




                                               84
    depositions in "six or seven different cities." (1-4) They consisted of "almost $5000 of

    mileage charges, hotel charges and other things." (3543:4-7) Sandoval's trial counsel

    testified that those expenses had been approved and that he was just "awaiting the

    check to be paid." 3543:8.

            Testimony received at the Motion to Continue Mitigation Hearing shows that

    Sandoval's trial counsel was aware that his bills would be paid and money would be

    added       his budget when needed. (3566:3-10).           The Madison County Board of

    Commissioners never put any limitations on Sandoval's trial counsel with respect to his

    bills on the Sandoval case. (3575: 13-18).

            The funding situation between Sandoval's trial counsel and the Madison County

    Board of Commissioners amounted to nothing more than a government office working

    with the county to make sure the office had enough funding to get through the year. At

    the Motion to Continue Mitigation Hearing, Sandoval's trial counsel felt he was able to

i   get the funding he needed to adequately defend Sandoval. (3554:21-3555:3);             The

    alleged fiscal conflict of interest offered no basis for substitution of counsel.

            On Sept. 8, 2004, the following testimony was offered by Sandoval's trial

    counsel:

            Q: [Mr. Smith]         If I recall [the Madison County Commissioners] told you that

            you wuld have all the money you needed for mitigation experts and they would

            honor any contracts.

            A: [Mr. Moore]         [The Madison County Commissioners and I] agreed there's

            enough money, and they said they would sign the claims. We didn't talk about

            additional money.




                                                  85
            Q:      With respect to any contract lawyers, that they would approve those for at

            least three months but they wanted you to start hiring lawyers in the meantime?

            A;      Right.

    (3762:4-13)

                                        Conflict within office

            Mr. Moore hired an attorney in the Madison County Public Defenders' Office who

    had participated in the trial of one of the other bank robbery defendants. There was

    discussion of this individual's responsibilities within that office and no discussion of

    whether she had any contact with Sandoval's case within Mr. Moore's office. At best,

    Sandoval has failed to meet his burden on this issue. At worst, consideration of any

    legitimate claim with respect to a possible conflict of interest must await the creation of

    an adequate record. We have none before us now.



i                                 ASSIGNMENT OF ERROR #19

                                    Prosecutorial Misconduct

            Sandoval assigns this error on page 18 and argues this error on pages 122-131

    of his brief.

                                                  I.

                                      Questions presented

            Did the district court err when it overruled Sandoval's objection to alleged

    prosecutorial misconduct in closing argument?        Did Sandoval's trial counsel provide

    ineffective assistance of counsel by failing to object or move for a mistrial because of

    prosecutorial misconduct?




                                                 86
                                             II.

                                       The objection

       In his brief, Sandoval argues that the district court improperly overruled his

objection to prosecutorial misconduct. Sandoval claims that the misconduct occurred

when the prosecutor told the jury that Galindo left Courtney Barritt's apartment the

morning of September 26, 2002, with Rodriguez in an older blue Cadillac. (2911 :9-19)

Sandoval made a timely objection and it was overruled by the court. (2911:20-22).

After overruling the objection, the district court instructed the jury that statements of the

attorneys are not evidence, the jury is the sole judge of the evidence and they can rely

on their memory to determine what the evidence was. (2911:24-2912:4)

       We do not observe that Sandoval offers argument of this assignment of error.

No argument is offered which focuses upon what is alleged to be error in the

prosecution's comment which was the subject of the objection, whether or not that

comment is supported by the record or how the district court erred in overruling the

objection and admonishing the jury. The record made at the time of the objection does

not afford that information. This error has been assigned but not argued to this court.

As such, Sandoval has abandoned this assignment of error.

                                             III.

                      Ineffective assistance; motion for mistrial

       In State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006), this court faced a

similar situation. Robinson's defense counsel objected to remarks by the prosecutor

during closing arguments as improper, and the trial court overruled the objections. Like




                                             87
Sandoval, the defendant in State v. Robinson failed to make a timely motion for mistrial.

This court said:

          We need not determine whether the prosecutor's comments were improper or
          inflammatory or whether they were sufficiently prejudicial to constitute error,
          because the record indicates that Robinson failed to preserve this issue for
          appellate review in that he failed to move for a mistrial.    When a party has
          knowledge during trial of irregularity or misconduct, the party must timely assert
          his or her right to a mistrial. One may not waive an error, gamble on a favorable
          result, and, upon obtaining an unfavorable result, assert the previously waived
       error.     A party who fails to make a timely motion for mistrial based on
       prosecutorial misconduct waives the right to assert on appeal that the court erred
       in not declaring a mistrial due to such prosecutorial misconduct. [Internal citations
      omitted.]

State v. Robinson, 271 Neb at 736-737,715 N.W.2d at 564.

      The record is clear that Sandoval did not move for a mistrial. There is no rational

argument that this action of trail counsel creates a reasonable probability the result of

the proceeding in question would have been different. State v. Jackson, 275 Neb. 434,

443,747 N.W.2d 418, 430 (2008). Therefore, this claim of error should be denied.

      This record is devoid of an examination of whether a rationale existed for

Sandoval's counsel not to seek a mistrial if one might have been merited. All these

questions, if they have any merit whatsoever, must await the creation of a record not

now before this court. State v. Wilson, 252 Neb. 637, 653-654, 564 N.W.2d 241, 253

(1997).




                                              88
                                               III.

                             Other issues argued but not assigned

             Sandoval's brief notes other occasions which he believes may represent some

    form of misconduct, but Sandoval's assignment of error raises only the two issues

    discussed above.



                                 ASSIGNMENT OF ERROR #20

                             Improper Comment on the Evidence

    Sandoval assigns this error on page 18 and argues this error on pages 131-135 of his

    brief.

                                                I.

                                       Question presented

    Did the trial court make an improper comment on the evidence when it instructed the

i   jury what the undisputed evidence at trial was and to disregard any argument of counsel

    beyond that evidence? Was Sandoval's counsel ineffective for failing to object to the

    district court's comment to the jury?

                                               II.

                               The alleged improper comments

             Guilt phase comment.      Sandoval cites two instances of alleged improper

    comments by the district court. The first took place during the closing argument of State

    in the guilt phase. The prosecutor argued about the evidence surrounding the death of

    Lisa Bryant. At one point the prosecutor argued:




                                               89
             MR. SMITH:          The defendant had to walk over and shoot her. She,

                                 of course, with the busted leg, shattered leg, and

                                 could not walk over to him to be shot like Jo

                                 Mausbach did with Sandoval.

                                 Lola-

             MR. MOORE:          Judge, may we approach?

                                 (Off-the-record discussion was had in low tones at the

                                 bench.)

             MR. SMITH:          You recall that Lola had to walk to the table.

             MR. MOORE:         May I ask for a specific instruction?

             THE COURT:          Ladies and gentlemen, it appears that counsel

                                referred to the defendant and it should have been

                                Vela previously. You should make that correction in



             MR. SMITH:         With respect to the defendant's partner, Vela, had to

                                walk over to Lisa Bryant to put the last round into her

                                because her hand was up, by the way, and she saw

                                that coming.

      Aggravation phase comment. During the prosecutor's closing argument of the

aggravation stage, he argued that "Mr. Galindo was involved" in the murder of Travis

Lundell. (3353:5-7). Sandoval objected and argued at the bench that the evidence only

showed that Galindo showed the police the location of the body. The evidence did not

show that Galindo was involved in the murder. (3353:11-20) The prosecution argued




                                           90
    that his reference to Galindo being "involved" was an appropriate inference to be

    derived from his knowledge of where the body of the murder victim was buried. The

    Court instructed the jury:

           Ladies and gentlemen of the jury, as I indicated to you before, closing argument

           is for the attorneys to give you their interpretation of the evidence and its

           conclusions. What they state is not evidence. You are the final - make the final

           determination of facts.   As to the involvement of Mr. Galindo, the evidence

           presented was that he showed the State the location of the body. That's the

           extent of the evidence and you should consider that in your deliberations.

           Everything else you should disregard.

    (3354:5-14).

                                               III.

                                          No objection

i          "Generally, a claim of improper conduct on the part of the trial judge in the

    presence of the jury will not be reviewed on appeal in the absence of a timely objection."

    State v. Rodriguez, 244 Neb. 707, 711, 509 N.W.2d 1, 4 (1993). No objections were

    raised about either instruction by the district court.   In fact, the aggravation phase

    comment was affirmatively solicited by Sandoval.

          This Court has clearly stated that, "[o]ne cannot gamble that improper judicial

    conduct will inure to his benefit and then complain that he guessed wrong. ki., 244

    Neb. at 711, 509 N.W.2d at 4.       At trial, Sandoval asked the judge for a specific

    instruction. Now Sandoval is saying the court erred in granting that request.

          Neither of these comments have been preserved for appellate review.




                                               91
                                                 IV.

     The district court did not comment on the evidence or make a remark which was

                                            prejudicial.

           Even if Sandoval had offered an objection at trial, the two comments by the

    district court were neither inappropriate comments on the evidence nor prejudicial.

           "Trial courts are to refrain from commenting on evidence or making remarks

    prejudicial to a litigant or calculated to influence the minds of the jurors." State v. Stark,

    272 Neb. 89, 102, 718 N.W.2d 509, 521 (2006).                "However, a defendant must

    demonstrate that a trial court's conduct, whether action or inaction during the

    proceeding against the defendant, prejudiced or otherwise adversely affected a

    substantial right of the defendant." Id., 272 Neb. at 102, 718 N.W.2d at 521. If a

    substantial right of the defendant was not adversely affected, the error is harmless. Id.,

    272 Neb. at 102, 718 N.W.2d at 521.

i          In each of the instances, the district court never commented on the evidence.

    The court merely commented on what was in evidence and what was not in evidence.

    "It is not improper for a trial judge to interject in order to correct a misstatement or

    misrepresentation of previously admitted testimony." Jasper v. State, 61 S.W.3d 413,

    421   (Tex.Crim.App., 2001).        There is no evidence that the district court's

    characterization of the evidence was, in either instance, inaccurate or in dispute

    between the parties.

           In State v. Bideaux, 219 Neb. 718, 365 N.W.2d 830 (1985), during the State's

    closing argument, the defendant objected, stating that the State's argument was not

    reflected in the evidence. The trial court stated, "I think the evidence does reflect it,




                                                 92
counsel." Id., 219 Neb. at 723, 365 N.W.2d at 834. This court held that the trial court's

statement was not prejudicial to the defendant.

       The district court did not comment on any fact in controversy or offer its opinion

concerning the significance of the witnesses' testimony or their credibility.         State v.

Privat, 251 Neb. 233, 244, 556 N.W.2d 29, 36 (1996).

                                              v.
                                   Ineffective assistance

       Sandoval alleges that his trial counsel provided ineffective assistance because

he failed to object to the instructions Sandoval requested the district court to make.

       To prove his claim of ineffective assistance of counsel, Sandoval has the burden

of showing that his counsel's performance was deficient and that this performance was

prejudicial.   The record before this court is sufficient to conclude that nothing

objectionable occurred here. Therefore, relief upon this claim of error should be denied

as San dovalsuffered no prejudice. There is no rational· argument that this action of trail

counsel creates a reasonable probability the result of the proceeding in question would

have been different. State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418, 430 (2008).

       However, the record before this court does not inquire to any degree into

Sandoval's trial counsel's rationale for not objecting to the district court's instructions. If

our analysis must go that far the record currently before us is wholly inadequate to

address that question.




                                             93
                                 ASSIGNMENT OF ERROR #21

                      Use of the term "apparent" in the jury instructions

            Sandoval assigns this error on page 18 and argues this error on pages 136-137

    of his brief.

                                                 I.

                                      Question presented

            Did the district court's use of the word "apparent" in the "exceptional depravity"

    instruction violate the Eighth and Fourteenth amendments?

                                                II.

                                       Standard of review

           Whether a jury instruction given by a trial court is correct is a question of law.

    When an appellate court reviews questions of law, it has an obligation to resolve the

    questions independently of the conclusion reached by the trial court. Roth v. Wiese,

i   271 Neb: 750,766, 716N:W:2d 419,434 (2006);

                                                III.

                                     The instruction given

           The district court instructed the jury that the "exceptional depravity" element of

    Aggravating Circumstance (3) could be proved by evidence that Sandoval "apparently

    relished the murder."

                                                IV.

                              The validity of the term "apparent"

           This court has consistently upheld the use of the term "apparent" in the context of

    Nebraska's aggravating circumstances. State v. Mata, 275 Neb. 1,26-28,745 N.W.2d




                                               94
229, 253 (2008) (and authorities discussed and collected therein). See also, State v.

Bjorklund, 258 Neb. 432, 491, 604 N.W.2d 164, 218 (2000).

                                            V.
           Arizona continues to employ and approve of the term "apparent"

         The term "apparent relishing" first appeared as a limited construction for the

statutory aggravating circumstance of "especially heinous or depraved" in State v.

Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983). In his brief, Sandoval states that "the Arizona

Supreme Court subsequently eliminated the "apparent" language in its subsequent

decisions." (Brief, p. 136).

         To the contrary, the Arizona Supreme Court has continued to use the "apparent"

language as a limiting construction for the statutory aggravating circumstance of

"especially heinous or depraved," even as recently as 2005. State v. Anderson, 210

Ariz. 327, 352, 111 P.3d 369, 394 (2005); State v. Lee, 189 Ariz. 590, 605, 944 P.2d




                               ASSIGNMENT OF ERROR #22

             Jury Instructions Regarding the Aggravating Circumstance F

Sandoval assigns this error on page 18 and argues this error on pages 137-143 of his

brief.

                                            I.

                                  Question presented

Did the trial court err when it instructed the jury at the aggravation phase regarding

Aggravating Circumstance F?         Did Sandoval's trial counsel provide ineffective




                                           95
assistance of counsel in not objecting to the jury instruction explaining Aggravating

Circumstance F?

                                                   II.

                   The jury instruction on Aggravating Circumstance F

         The trial court gave jury instructions at the close of the aggravation phase

evidence.      (T298-327).     The trial court included instructions on the aggravating

circumstances and the elements necessary to meet each of the charged aggravating

circumstances.       (T301-304).    The State had alleged the existence of Aggravating

Circumstance F:       "The offender knowingly created a great risk of death to at least

several persons." Neb.Rev.Stat. Section 29-2523(1)(f) (2006 Cum.Supp.)

         The district court instructed the jury:

         (5) the offender knowingly created a risk of death to at least several persons.

         The essential elements necessary to prove this aggravating circumstance

      .beyond a reasonable doubt are:

            1. The offender created a great risk of death, and

            2. The risk was to more than two persons, including each victim.

(T304)

         After reading the jury instructions to the jury, the trial court gave the jury the

verdict forms which included the language, "Do you, the jury, unanimously find that the

State has proven beyond a reasonable doubt that the defendant at the time this murder

was committed, knowingly created a great risk of death to at least several persons?"

(T319-327)




                                               96
                                             III.

                                       No objection

       Sandoval made no objection to the instructions as given by the district court.

This court has clearly held that "[f]ailure to timely object to jury instructions prohibits a

party from contending on appeal that the instructions were erroneous."              State v.

Williams, 269 Neb. 917, 924, 697 N.W.2d 273, 279 (2005). Because Sandoval did not

offer a timely objection, he has waived this issue on appeal.

                                             IV.

                            Ineffective assistance of counsel

                                       No prejudice

       To argue that his trial counsel was ineffective for failing to object to the

instruction, Sandoval has the burden of first showing that his counsel's performance

was deficient, and second, that his counsels performance prejudiced the defense in his

case; State v; Williams, 269 Neb; at 924, 697 N;W;2d at 279;

       "Before an error in the giving of instructions can be considered as a ground for

reversal of a conviction, it must be considered prejudicial to the rights of the defendant."

State v. Fisher, 272 Neb. 963, 973, 726 N.W.2d 176, 184 (2007). "Jury instructions

must be read as a whole, and if they fairly present the law so that the jury could not be

misled, there is no prejudicial error. Id., 272 Neb at 973,726 N.W.2d at 184.

       Reading the jury instructions as a whole, Sandoval has not carried his burden of

establishing that his aggravation phase jury was misled by the instructions given. The

jury instructions inform the jury that in order to find this aggravating circumstance to be

found, the jury must find, beyond a reasonable doubt, that Sandoval "knowingly created




                                            97
    a great risk of death." (T304)(emphasis added). The fact that the jury was required to

    find a "great risk" is strengthened because the verdict form repeated the appropriate

    statutory language: "knowingly created a great risk of death." (T318-327).

           It is completely rational to presume that jurors, in the end, focus their

    deliberations upon the elements the trial court instructs they must find. Because the

    jury instructions specifically define "great risk of death" as an element that the jury must

    find beyond a reasonable doubt before finding the existence of Aggravating

    Circumstance F, Sandoval suffered no prejudice in the jury instruction process. Read

    together, the jury instructions fairly presented the law. Sandoval's jury was not misled.

           Thus, we can determine from this record that Sandoval suffered no prejudice as

    a result of the jury instruction given on Aggravating Circumstance F.          There is no

    rational argument that this action of trail counsel creates a reasonable probability the

    result of the proceeding in question would have been different. State v. Jackson, 275

I   Neb. 434, 443, 747 N.W.2d 418, 430 (2008). JfSandovaLsuffered no pre] udice,then he

    did not suffer ineffective assistance of counsel under Strickland.

                                          Deficient performance

           Sandoval's trial counsel raised no objection to the jury instruction in question. If

    Sandoval suffered no prejudice as a result, our analysis ends. If it does not, the record

    before this court is wholly inadequate to explore what rationale might have moved

    Sandoval's trial counsel not to object. Exploring that question, if necessary, must await

    an adequate record for review.




                                                98
                                 ASSIGNMENT OF ERROR #23

 Jury Instruction on what Constituted "The Murder" in Aggravators One (1), Two

                                          (2) and Three (3)

Sandoval assigns this error on page 19 and argues this error on pages 143-147 of his

brief.

                                                 I.

                                      Questions presented

Did the aggravation phase jury instructions confuse the jury about the relevant "murder"

to consider in evaluating the aggravating circumstances numbered (2), (3) and (4)?

Was trial counsel ineffective for not objecting?

                                                 II.

                                      The jury instructions

         At the close of the aggravation phase, the trial court gave jury instructions. The



         This is a criminal case in which the defendant, Jose Sandoval, has been found

         guilty of five counts of Murder in the First Degree. You must now determine if

         one or more of the following aggravating circumstances are true or not true as to

         Mr. Sandoval (sic) for each count of murder to wit:

                (1)     the offender has a substantial prior history of serious assaultive or

         terrorizing criminal activity;

                (2)     the murder was committed in an effort to conceal the commission of

         a crime, or to conceal the identity of the perpetrator of such crime;




                                                99
               (3)    the murder was especially heinous, atrocious, cruel, or manifested

        exceptional depravity by ordinary standards of morality and intelligence;

               (4)    at the time the murder was committed, the offender also committed

        another murder; and

               (5)   the offender knowingly created a risk of death to at lease several

        persons.

(T301). In regards to the first aggravating circumstance, the trial court instructed the

jury:

        Before you may consider whether the alleged crime proves beyond a reasonable

        doubt that the defendant has a substantial prior history of serious assaultive or

        terrorizing criminal activity, it must be proven beyond a reasonable doubt that the

        defendant did in fact commit the offense of Murder in the First Degree of Travis

        Lundell or Murder in the second degree.



        The jury was further instructed, "For each of the five counts of murder, if you

decide unanimously that the state proved each essential element of an aggravating

circumstance alleged beyond a reasonable doubt, then you must find that the

aggravating circumstance exists.      Otherwise, you must find that it does not exist."

(T304).

        At the conclusion of the aggravation phase, the jury found that the State proved

beyond a reasonable doubt aggravating factors (2), (3), (4) and (5), but did not prove

beyond a reasonable doubt aggravating factor (1).




                                           100
                                              III.

                                       No objection

       Sandoval states that the trial court erred when it did not give an instruction as to

what constituted "the murder" in aggravating factors (2), (3) and (4). At trial, Sandoval

did not request such an instruction or object to the instruction given.

       This court has clearly held that "[f]ailure to timely object to jury instructions

prohibits a party from contending on appeal that the instructions were erroneous." State

v. Williams, 269 Neb. at 924, 697 N.W.2d at 279. Sandoval has waived this issue on

appeal because he did not request a limiting instruction and because he did not object

to the language of the jury instructions he is now citing as being in error.

                                             IV.

                                  Ineffective assistance

                                        No prejudice

       Sandoval's    jury . was   instructed that .. "the murder" in the       aggravating

circumstances referred to the "five counts of Murder in the First Degree" of which

Sandoval was found guilty.        (T301)     This is not only a rational reading of the

instructions, but the jury's accurate understanding of those instructions is evidenced by

the other decisions rendered by that jury.

       If there had been confusion that the murder referenced in aggravating

circumstances numbered 2-4 was the murder to Travis, then it would logically follow that

none of the aggravating circumstances would have been found to exist.             Instead,

Sandoval's aggravation phase jury found that aggravator #1 (the murder of Travis) was




                                             101
not proven beyond a reasonable doubt, but that the "murder" in #2, #3 and #4 had been

proven beyond a reasonable doubt, five times.

         This court has said that "[j]ury instructions must be read as a whole, and if they

fairly present the law so that the jury could not be misled, there is no prejudicial error.

State v. Fisher, 272 Neb. at 973, 726 N.W.2d. at 184.

         In this instance, Sandoval suffered no prejudice as a result of the district court's

jury instructions and therefore Sandoval did not suffer ineffective assistance of counsel

due to trial counsel's failure to object. There is not rational argument that this action of

trail counsel creates a reasonable probability the result of the proceeding in question

would have been different.       State v. Jackson,275 Neb. 434, 443, 747 N.W.2d 418,

430 (2008). This claim should be dismissed on that basis.

                                    Deficient performance

         Sandoval's trial counsel raised no objection to the jury instruction in question. If

Sandoval.suffered.nc.prejudiceas.a result, our.analysls ends. If it does··· not,the recGrd

before this court is wholly inadequate to explore what rationale might have moved

Sandoval's trial counsel not to object. Exploring that question, if necessary, must await

an adequate record for review.



                              ASSIGNMENT OF ERROR #24

 Jury Instruction on what Constituted "The Murder" in Aggravators One (1), Two

                                     (2), and Three (3)

Sandoval assigns this error on page 19 and argues this error on pages 147-150 of his

brief.




                                             102
                                             I.

                                  Questions presented

Was the district court required to give an instruction informing the aggravation phase

jury that only the murders in the bank could be considered in the determination of the

existence of Aggravating Circumstance F?           Was trial counsel ineffective for not

requesting such an instruction? Was trial counsel ineffective for not objecting to the

prosecution's argument that escape behavior could also be considered in finding this

aggravating circumstance?

                                             II.

                                  The instructions given

       At the close of the evidentiary stage of the aggravation phase, the trial court gave

the following jury instruction.

       (5) the offender knowingly created a risk of death to at least several persons.

       1heessenlial···elements·necessary to ··provethis····aggravating ·circlJmstance

       beyond a reasonable doubt are:

               1. The offender knowingly created a great risk of death; and

              2. The risk was to more than two persons, including each victim.

(1304).

                                            III.

                            No limiting instruction requested

       Sandoval did not request a limiting instruction at trial as to this jury instruction.

This court has held that "[f]ailure to timely object to jury instructions prohibits a party




                                            103
from contending on appeal that the instructions were erroneous." State v. Williams, 269

Neb. at 924, 726 N.W.2d at 184. Sandoval has waived this issue on appeal.

                                                 IV.

                               Ineffective assistance of counsel

                                           No prejudice

       Sandoval suffered no prejudice as a result of the two complaints he makes

against his trial counsel for each of the following reasons:

   •   If you have five murder victims on the floor of the US Bank, three at Sandoval's

       hand and two victims of Sandoval's robbery plan, then Aggravating Circumstance

       F has been proven beyond a reasonable doubt before Sandoval ever left the

       bank.

   •   If you have one bank patron fired at and wounded as she fled the bank in the

       course of the robbery, then Aggravating Circumstance F has been proven

       beyobdareasonabledoubtbefore San06valeverleftlhebanK.

   •   If other human beings are accosted at gun point by individuals who are fleeing

       five murders just minutes before, that too, is wholly legitimate evidence of the

       existence of Aggravating Circumstance F.

       Sandoval raises a question of Nebraska law: What is the time frame within which

one may "create a great risk of death" under Aggravating Circumstance F? To our

knowledge it is a question of first impression before this court. We believe the definition

of this aggravating circumstance urged here by Sandoval is not compelled by the

statutory language.    Flight from a crime scene is often as dangerous--or more

dangerous-to the general public than the crime itself. Three men wholly capable of




                                           104
    slaughtering five innocent human beings in a bank do not become innocuous and

    passive as they flee to avoid arrest. As they flee, they flee into the midst of the rest of

    us. They are still armed and all members of the general public now pose a possible

    impediment to their escape.

           This court has always considered flight from a crime scene to be relevant as

    evidence of guilt of a crime. State v. Jacob, 253 Neb. 950, 979, 574 N.W.2d 117,

    140 (1998); Brown v. State, 196 N.W. 926, 926 (1924). It is a logical extension of the

    crime itself.

           Sandoval would have this court adopt this standard: If he kills five in the bank,

    but stepped outside the bank to kill or threaten another with deadly force; or ran two

    blocks before killing or threatening another with deadly force, those two incidents would

    be irrelevant to Aggravating Circumstance F. Neither logic nor our statutory language

    compel that interpretation.

I          Sandoval suffered···no prejue;Jiceas·aresullofhis trial counsel's not objecting to

    the jury instructions or the State's closing argument. There is no rational argument that

    this action of trail counsel creates a reasonable probability the result of the proceeding

    in question would have been different.      State v. Jackson, 275 Neb. 434, 443, 747

    N.W.2d 418, 430 (2008).

                                      Deficient performance

           Sandoval's trial counsel raised no objection to the jury instruction or closing

    argument in question. If Sandoval suffered no prejudice as a result, our analysis ends.

    If it does not, the record before this court is wholly inadequate to explore what rationale




                                               105
might have moved Sandoval's trial counsel not to object in either instance. Exploring

that question, if necessary, must await an adequate record for review.

                                            V.
                                     Harmless error

       Even if error is present here, it is harmless beyond a reasonable doubt.

       "Harmless error exists in a jury trial of a criminal case when there is some

incorrect conduct by the trial court which, on review of the entire record, did not

materially influence the jury in a verdict adverse to a substantial right of the defendant."

State v. Stahl, 240 Neb. 501, 508 (1992) (citing State v. Coleman, 239 Neb. 800, 814

(1992) (quoting State v. Watkins, 227 Neb. 677 (1988))).

       Sandoval provides no evidence that the jury's decision to find the "risk of death"

aggravator existed was based at all or in part on the prosecutor's mention of the co-

defendants' conduct after committing the murders. In fact, the record clearly indicates

the State provided adequate evidence that.the "risk of death" aggravatorappliedinthis

case long before Sandoval left the bank.          The record clearly demonstrates that

Sandoval and his co-defendants gravely endangered the lives of Cheryl Cahoy, Susan

Staehr, and Micki Koepeke during the course of the murders.              (3348:13-3350:12;

2109:14-2112:24; 2365:13-2367:25).       Cheryl Cahoy and Susan Staehr sat in Lola

Elwood's office along with Lola Elwood when Galindo entered the office and began

shooting at them. The shots killed Lola Elwood and created an obvious risk of death for

both Cheryl Cahoy and Susan Staehr. Micki Koepeke walked through the doors of the

US Bank as the murders were in progress and ran for her car as shots were fired

directly at her, clearly creating a risk of death for Micki Koepeke. Some of these rounds




                                           106
      found their way into the public space, crossing the busy intersection of 13th and

      Pasewalk and ending at a Burger King drive-thru window across the street, endangering

      the lives of any members of the public in their path. As the entirety of the record

      demonstrates, the jury had more than enough evidence to support their decision in favor

      of the "risk of death" aggravator.

                                                   VI.

                                           Sandoval's authority

             Other states have adopted extraordinarily narrow readings of similar language.

      The results are not as informative as they are incredible.

             In the Pennsylvania case, the court held that a second murder conducted in the

      same place of business did not represent a "grave risk of death to another person"

      because the first shooting victim had already been shot moments before the second

      victim entered the store and was murdered by the defendant. Com. v. Bolden, 562 Pa.

D··   H4, 104-105,753 A2d 793, 798-799(2000);

            Arizona adopts a similar odd result.         There, a person who points a loaded

      weapon at a third party immediately upon shooting his victim, was found not to pose "a

      grave risk" to others. State v. Wood, 180 Ariz. 53,69, 881 P.2d 1158, 1174 (1994).

            Those courts are surely free to interpret the statutes of their states as they

      please, but such incredibly narrow readings of such language in not compelled by logic

      or statutory language, and make a mockery of any public safety concerns that prompted

      the enactment of those aggravating circumstances.




                                                   107
                             ASSIGNMENT OF ERROR # 25

        Accessorial Liability Regarding the "Great Risk of Death" Aggravator

Sandoval assigns this error on pages 19-20 and argues this error on pages 150-151 of

his brief.

                                             I.

                                  Questions presented

Did the trial court err by allowing accessorial liability be considered to prove the "great

risk of death" aggravator? Was Sandoval's trial counsel ineffective because he did not

request an instruction that would prevent the jury from using accessorial liability to prove

the "great risk of death" aggravator?

                                             II.

                                  The jury instructions

       At the aggravation phase, the trial court instructed the jury that it could consider

accessoriaHiability as to the aggravators; (T306);

                                            III.

                                     The aggravator

       Neb. Rev. Stat. §29-2523 defines this aggravator as, "The offender knowingly

created a great risk of death to at least several persons."




                                           108
                                                 IV.

         Assessorial Liability can be considered in determining the "great risk of

                                   death" aggravator

       This Court has already answered the question presented.            This court has

employed assessorial liability to find aggravators which refer to "the offender." State v.

Bjorklund, 258 Neb. 432, 487, 604 N.W.2d 169, 215 (2000).

       Neb. Rev. Stat. §29-2523(1)(a) states: "The offender was previously convicted of

another murder or a crime involving the use or threat of violence to the person, or has a

substantial history of serious assaultive or terrorizing criminal activity."   This Court

considered the fact that Bjorklund aided and abetted another in committing two

robberies. Id, 258 Neb. at 487, 604 N.W.2d at 215. After considering this assessorial

liability and other evidence, this Court determined that "the offender" had "a substantial

history of terrorizing or assaultive criminal behavior." Id, 258 Neb. at 487, 604 N.W.2d



       In Selsor v. State, 2 P.3d 344, 353 (Okla,Crim.App., 2000), the Court of Criminal

Appeals of Oklahoma dealt with assessorial liability and the "great risk of death"

aggravator directly.   The court held that assessorial liability could be considered in

determining the "great risk of death" aggravator. Id, 2P.3d at 353. The court reasoned,

"If criminal liability can attach for a codefendant's act that a defendant has aided and

abetted, liability for an aggravating circumstance can also attach for a codefendant's act

that a defendant has aided and abetted." Id, 2P.3d at 353.




                                           109
                                                 VI.

                                    Ineffective assistance

       First, we question whether Sandoval offers adequate argument of this aspect of

his assignment of error to allow consideration by this court. In his brief, "To the extent

that the State contends that this issue was not raised by appellant's trial counsel, the

appellant contends that his trial counsel was ineffective in failing to make such an

argument." (Brief of Appellant, p. 151) That is not argument.

       Second, in view of Bjork/and, there is an adequate basis to conclude that

Sandoval's trial counsel's declination to object was not deficient performance, but

reflected an accurate understanding of Nebraska law.

       Third, there is no rational argument that this action of trail counsel creates a

reasonable probability the result of the proceeding in question would have been

different. State v. Jackson, 275 Neb. 434, 443, 747 N.W.2d 418, 430 (2008).



                        ASSIGNMENTS OF ERROR #26 and #27

                    Jury Instruction Concerning "Mental Anguish"

       Sandoval assigns these errors on page 20 and argues these errors on pages

152-158 of his brief.

                                            I.

                                 Questions presented

       Is the "especially heinous" element of Aggravating Circumstance 0 vague and

overbroad?    Does the "especially heinous" element of Aggravating Circumstance 0




                                          110
include "mental anguish"? Was trial counsel ineffective for failing to object to the district

court's instructions on the "mental anguish" aspect of the instruction?

                                              II.

                                      The Instruction

       At the aggravation phase of the trial, the district court instructed the jury on the

"especially heinous" element of Aggravating Circumstance D.

       The essential elements necessary to prove this aggravating circumstance

       beyond a reasonable doubt are: ... The defendant inflicted serious mental

       anguish or serious physical abuse-meaning torture, sadism, or sexual abuse-

       on the victim before the victim's death.       Mental anguish includes a victim's

       uncertainty as to his or her ultimate fate.

 (T303).

                                             III.



       Sandoval objected to this instruction at trial on the basis that it was

"unconstitutionally vague and overbroad." (3336:10-14).

                                             IV.

                 The aggravating circumstance, as narrowed, is not vague

                            The Supreme Court of the United States

      In Walton v. Arizona, 497 U.S. 639 (1990) (reversed on other grounds in Ring v.

Arizona, 536 U.S. 584 (2002», the United States Supreme Court upheld the

constitutionality of "especially heinous, atrocious, or cruel" aggravating circumstance

language very similar to Aggravating Circumstance 0 and the instruction given by the




                                            111
district court.   The Court said that limiting "especially heinous, atrocious, or cruel"

aggravating circumstance to murders involving some kind of torture or physical abuse

was not the only construction that would be constitutionally acceptable. ki, 497 U.S. at

654-655. The Court found "that the proper degree of definition of an aggravating factor

of this nature is not susceptible of mathematical precision." Id, 497 U.S. at 655. The

limiting language given by the Arizona Supreme Court on the especially cruel prong was

"constitutionally sufficient because it [gave] meaningful guidance to the sentencer." Id,

497 U.S. at 655.

       In Tuilaepa v. California, 512 U.S. 967, 973-974 (1994), the Court noted that "our

vagueness review is quite deferential. ... [A] factor is not unconstitutional if it has some

common-sense       core   of meaning    that criminal juries     should   be capable of

understanding, we have found only a few factors vague." The Court went on to say that

whether the perpetrator inflicted mental anguish or physical abuse before the victim's

death,· with mental anguish including a victim's uncertainty as to his ultimate fate,is· not

unconstitutionally vague. ki, 512 U.S. at 974.

                                       Nebraska law

       In this case, the district court used language for the "especially heinous,

atrocious, or cruel" aggravating factor which is identical to that found in the Nebraska

Pattern Jury Instructions.    1 Neb. Prac., NJI2d Crim. 10.4 (2007-2008 ed.).          The

committee notes to the pattern jury instructions state, "This language was approved [by

the United States Supreme Court] and found to be constitutionally sufficient because it

gives meaningful guidance to the one deciding the sentence."          1 Neb. Prac., NJI2d

Crim.10.4.




                                           112
       In State v. Hessler, 274 Neb. 478,500,741 N.W.2d 406,423 - 424 (2007), this

court held: "challenges to § 29-2523(1)(d) were rejected in State v. Gales, 269 Neb.

443, 694 N.W.2d 124 (2005); Bjorklund, supra; and State v. Ryan, 233 Neb. 74, 444

N.W.2d 610 (1989)."

       In State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995), cited by Sandoval, this

court stated: "We have also held the first prong of (1)(d) to be applicable when the

murder was preceded by acts performed for the satisfaction of inflicting either mental or

physical pain or when such pain exists for any prolonged period of time. Id, 248 Neb. at

447,534 N.W.2d at 793. Citing, State v. Victor, 235 Neb. 770,457 N.W.2d 431 (1990);

State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985).

       The language of the jury instruction given by the trial court is clearly constitutional

and consistent with this court's interpretation of Nebraska statutes. The instruction gave

the jury a common-sense core of meaning that a criminal jury was capable of



                                             V.
                                  Ineffective assistance

                                         Prejudice

      Sandoval's victims were threatened with a deadly weapon and most watched as

others with them were gunned down by Sandoval. The victims did not die instantly.

They suffered an agonizing death as a result of Sandoval's homicidal behavior. There

is no rational argument that the action of trial counsel creates a reasonable probability

the result of the proceeding in question would have been different.                 State v.

Jackson, 275 Neb. 434, 443, 747 N.W.2d 418, 430 (2008).




                                            113
                                    Deficient performance

          The instruction given was consistent with both federal and state case law and the

language of Nebraska statute. The objection made by counsel was without legal merit.

The objection Sandoval now claims should have been made was equally meritless.

There is no basis on this record to conclude the performance of Sandoval's trial counsel

was deficient in this instance.



                               ASSIGNMENT OF ERROR #28

         Ineffective assistance of counsel concerning the testimony of Todd Uhlir

Sandoval assigns this error on page 20 and argues this error on pages 158-161 of his

brief.

                                              I.

                                    Question presented

Did Sandoval's .trial.counsel.. provide.ineffective assistance when on .cross-examlnatlcn,

he asked Todd Uhlir about the bullet that struck his business?

                                              II.

                             Cross-examination of Todd Uhlir

          The State of Nebraska called Todd Uhlir as a witness in the aggravation phase of

the trial. Mr. Uhlir testified about his position as Director of Operations of the Burger

King southwest of the US Bank Building.         Mr. Uhlir said a bullet hit the Burger King

drive-though window on the day of the US Bank killings. (3222:3-5). He also testified

that there probably were some employees of Burger King located in the drive-through

and around other areas of the restaurant at that time. (3220:3-3221: 10).




                                             114
          Sandoval's trial counsel cross examined Mr. Uhlir. Mr. Uhlir testified that he was

    not in the Burger King building at the time of the shooting. Sandoval's trial counsel and

    Mr. Uhlir then had the following exchange:

          Q:     You were curious about where that bullet was heading across?

          A:     Yes.

          Q:     That would be natural.     In your mind of whatever, did you estimate for

                 yourself where that bullet would have continued to go inside the Burger

                 King if it had come through?

          A:     I know exactly where it would have went.

          Q:     Where would it have gone?

          A:     It would have come right through where my person taking orders was.

          Q:     Right here?

          A:     Pretty much in her ear hole.

I         Q:     Where you have this register drawn on· 314?

          A:     Uh-huh.

          Q:     You're taking about this X right here?

          A:     Yes.

          Q:     And then it would have gone into a wall beyond that?

          A.     Yes.

          Q:     It wouldn't have come back in the galley area where the people are

                 walking back and forth from time to time?

          A:     More likely not. To my best way, it looked like that's the way it was.




                                                115
       Q:     Okay.   I know you don't know whether anybody was actually standing

              there that morning, but as far as general practices in Burger King, would

              there just be one person standing there at that register?

       A:     Right where the X is, there's somebody there as long as there's a car to

              take an order, which is most of the time.

       Q:     But there are brief times back and forth when a person leaves that window

              for various things?

       A:     Yes.

       Q:     Go get a cup of coffee, to go get change? You're nodding yes?

       A:     Yes.

       Q:     Even to take a break for 30 seconds or a minute?

       A:     Yes.

(3231:5-3232:20).



    Sandoval's defense counsel had a strategic reason for eliciting the above

                               testimony from Mr. Uhlir

       This court has held that "[a] claim of ineffective assistance of counsel need not

be dismissed merely because it is made on direct appeal." State v. Walker, 272 Neb.

725,736,724 N.W.2d 552,563 (2006). 'The determining factor is whether the record is

sufficient to adequately review the question." Id, 272 Neb. at 736, 724 N.W.2d at 563.

This record is sufficient to resolve this claim of error. On direct examination, the State

obtained testimony from Mr. Uhlir showing that the bullet hitting the drive-through




                                           116
     window had the potential to hit a number of Burger King employees and customers if

     the bullet would have gone through the window. (3220:3-3221:10;3222:18-3224:19)

            Sandoval's trial counsel obtained testimony from Mr. Uhlir about the bullet's

     trajectory to the effect that if the bullet had passed through the glass, it actually would

     have gone into the area where only one person would have been exposed to possible

     harm, and only if that person were standing in that exact position at the moment the

     bullet struck the window. (3231:8-15; 3231:25-3232:4)

            Sandoval's trial counsel further obtained testimony that the single person in the

     bullet's potential path was routinely leaving the area at and therefore there may have

     been no one at the window at the time the bullet struck. (3232:12-20) Sandoval's trial

     counsel had a reasonable strategy to mitigate the jury's sense of the actual risk to

     others that would otherwise been left after direct examination.

           This court should deny Sandoval relief on this assignment of error because his

1_   triaLcounseLbadareasonablegoa.linelicitingmitigating.Jestimony .from.. M.r..Uhlir.. and

     was successful in doing so.

           Beyond that, there is no rational argument that the action of trail counsel creates

     a reasonable probability the result of the proceeding in question would have been

     different. State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418, 430 (2008).




                                                117
                             ASSIGNMENT OF ERROR # 29

     Ineffective Assistance of Counsel in not calling a forensic pathologist as a

                  witness to rebut the testimony of Jerry Jones, M.D.

        Sandoval assigns this error on page 20 and argues this error on pages 161-162

of his brief.

                                           I.

                                   Question presented

       Was Sandoval's trial counsel deficient in not calling a forensic pathologist as a

witness to rebut the testimony of Jerry Jones, M.D.?

                                           II.

                                       The record

       Sandoval's trial counsel consulted with a medical doctor who he wished to have

testify inordertorebutthe testimony of DL Jerry Jones; (3741:16-17); After meeting

with the doctor and spending about five to six hours going through all the evidence in

the case, the doctor was scheduled to testify in November, 2003. The doctor indicated

that his testimony would have been that the length of time each of the victims suffered

after being shot was somewhat less than estimated by DL Jones. (3742:5-3743:6)

       The night before the defense expert was scheduled to testify, he called

Sandoval's trial counsel and "indicated that he changed his mind and wasn't coming to

testify." (3743:19-3744:3) The expert never gave an explanation as to why he was

unwilling to testify. (3744:2-4)




                                          118
        Sandoval's trial counsel determined that his only two options were to rest the

case without any witnesses or to ask the court for a continuance to line up another

expert to rebut the testimony of Dr. Jones. (3745:1-4) He made this determination

based on a number of factors, including:

    •   "[d]oubts that the court would grant such a continuance in the middle of the trial."

        (3745:4-6)

   •    The jury might be exposed to media influence and influence from the people of

        Madison County if the trial were delayed one or two weeks. (3745:15-3746:5).

   •    Whether "extended arguments about whether somebody was suffering and

        choking for [five] or [seven] seconds, or suffering or choking for [thirty] seconds"

        would have a negative influence on the jury. (3746:6-11).

   •    Because the jury had already heard enough "gruesome testimony and "[e]ven

        though some of the statements would be favorable, [he] didn't know if, in reality,

        the effect on the jUry would befavolable." (3746:12=22).

   •    If a doctor testified to rebut the testimony of Dr. Jones, the State would have "put

        Dr. Jones back on the stand to reiterate one more time the gruesome things he

        testified about before." (3746:22-25).

After weighing all of these factors "as a matter of trial strategy," Sandoval's trial counsel

determined it was in the best interests of his client not to ask the court for a continuance

get another expert witness. (3747:1-5).




                                            119
                                            III.

 The decision not to call a medical expert as a witness was based on reasonable

                                      trial strategy

                                No deficient performance

       This Court has held that a claim of ineffective assistance of counsel does not

need to be dismissed merely because it is made on direct appeal." State v. Wabashaw,

274 Neb. 394, 408, 740 N.W.2d 583, 596 (2007). "The determining factor is whether

the record is sufficient to adequately review the question." Id., 274 Neb at 408, 740

N.W.2d at 596.

       To establish his right to relief because of ineffective counsel on direct appeal,

Sandoval "has the burden first to show that counsel's performance was deficient; that is,

counsel's performance did not equal that of a lawyer with ordinary training and skill in

criminal law in the area." State v. Wabashaw, 274 Neb. at 408, 740 N.W.2d at 596.

The record presently before this court demonstrates Sandoval has not met his burden of

proof on this claim.

       The record shows that "the decision not to call an expert witness was carefully

made and based on trial strategy." State v. Ellefson, 231 Neb. 120, 125, 435 N.W.2d

653, 657 (1989). Sandoval's trial counsel performed as a lawyer possessing ordinary

training and skill in the Nebraska criminal law should have performed. He obtained an

expert witness to rebut Dr. Jones's testimony. After the expert witness refused to testify

in the eleventh hour, Sandoval's trial counsel made a calculated strategic decision,

based on the unexpected situation with which he was confronted, and decided not to

ask the court for a continuance to obtain another expert witness.




                                           120
                                       No prejudice

       In addition, Sandoval must "show that counsel's deficient performance prejudiced

the defense in his or her case." State v. Wabashaw, 274 Neb. at 408-409, 740 N.W.2d

at 596.   "To prove prejudice, the defendant must show that there is a reasonable

probability that but for counsel's unprofessional errors, the result of the proceeding

would have been different." Id., 274 Neb. at 409,740 N.W.2d at 596.

       The record shows that there is no reasonable probability that the proceeding

would have been different if Sandoval's trial counsel had asked for a continuance to

obtain another expert witness. There is no dispute that Sandoval's victims did not die

instantly. There is not dispute they suffered as they died. To seriously consider that a

different verdict would have been reached on the issue of suffering based upon a

dispute over seconds is not reasonable.      Additional expert testimony concerning the

details of the victim's deaths, used to rebut Dr. Jones's testimony, could have had a

negative impact on the jury. (3746:6-22) ·Thecaflingofadefense .expert would have

afforded the State the opportunity to cross examine and explore again the gruesome

deaths suffered by the victims. The calling of a defense expert would have also opened

the door for the State to recall Dr. Jones in rebuttal and more clearly focus Dr. Jones

testimony on the disputed issues. (3746:22-25)

       Sandoval's trial counsel's performance on this issue was not deficient.     It was

logical and professional in the context of the unanticipated events. There is no rational

argument that the decision of trial counsel creates a reasonable probability the result of

the proceeding in question would have been different. State v. Jackson, 275 Neb. 434,

443,747 N.W.2d 418, 430 (2008).




                                           121
                             ASSIGNMENT OF ERROR ## 30-31

                 Judgment of Acquittal as to the five aggravating factors

Sandoval assigns this error on page 21 and argues this error on pages 163-173 of his

brief.

                                                I.

                                     Question Presented

Did the district court err in overruling Sandoval's Motion for a Judgment of Acquittal as

to the five aggravating factors at the close of the aggravation phase evidence?

                                                II.

                                         The standard

         In reviewing a criminal conviction, an appellate court does not resolve conflicts in

         the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such

         matters are forthe finder of fact, and a conviction will be affirmed, in the absence

         of prejudicial error, if the properly admitted evidence, viewed and construed most

         favorably to the State, is sufficient to support the conviction.

State v. Pierce, 248 Neb. 536, 548, 537 N.W.2d 323,330 - 331 (1995).
         This standard is applicable to each of the subparts of Sandoval's argument of
this assignment of error.
                                               III.
         Murder committed in an effort to conceal the identity of the perpetrator
         The crime for which identity is to be concealed must be a crime separate from

the murder(s). See State v. Lotter, 255 Neb. 456 (1998). This case involves a bank

robbery that Sandoval planned and executed. During the bank robbery, five innocent




                                               122
    people were murdered, three shot at close range by Sandoval himself.        The State

    provided substantial evidence that this case involved a robbery.

           Sandoval and his co-defendants entered the bank wearing hats, sunglasses,

    they were armed and carrying a book bag. (2111 :1-12; 2367:8-2368:17). Sandoval and

    his co-defendants attempted to conceal their identity during the commission of this

    robbery. Sandoval wore a glove on the hand holding the gun. (2111: 1-12) Immediately

    upon entering the bank, Sandoval and his co-defendants split up and started murdering

    those present. (3345:6-15; Exhibits 106-107). When Micki Koepke entered the bank,

    realized a robbery as taking place and began to run, Galindo shot at her as she ran out

    the bank doors. (2111 :1-12). After killing Lola Elwood, other shots were fired at the

    women in Elwood's office and Cheryl Cahoy explained she heard talk about an alarm

    and someone saying "hurry up, hurry up." (2367:8-2368:17).

           The videos, photographs, and the testimony of eye-witnesses afford a basis for

-   the jury to conclude that these defendants were intent on committing a bank robbery;

    The five murders served no purpose if not committed in an attempt to conceal the

    identify of those perpetrating that robbery. A robbery with which Sandoval did not wish

    to be identified.

           The district court correctly overruled Sandoval's Motion for a Judgment of

    Acquittal with respect to Aggravating Circumstance B, that the murder was committed to

    conceal the identity of the perpetrator of the crime.




                                                123
                                                    IV.

                      The murder was especially heinous, atrocious, or cruel.

                                              The evidence

              The State's evidence established that the murders of Lisa Bryant, Sam Sun,

    Evonne Tuttle, Lola Elwood, and Jo Mausbach were especially heinous, atrocious, or

    cruel.     The term "especially heinous, atrocious, or cruel" includes cases of torture,

    sadism, or cases where the imposition of great suffering exists. State v. Reeves, 239

    Neb. 419, 431 (1991) (citing State v, Moore, 210 Neb. 457, 470 (1982). This aggravator

    also applies where the murder was preceded by acts performed for the purpose of

    inflicting mental anguish, or when such pain existed for any prolonged period of time.

    State v. Ryan, 248 Neb. 405, 431 (1005).

              These crimes involved two particular mechanisms of death, asphyxiation and

    exsanguination.       During his testimony, Dr. Jerry W. Jones, a forensic pathologist,

I   described what the victims of both of these mechanisms involve significant suffering.

    Dr. Jones described asphyxiation as follows:

              ... all of these deaths that are associated with suffocation due to blood in
              the air passages are horrible types of death. A person can't get their
              breath. They are gasping for air, yet they are conscious and alert and
              aware that they're dying. They try their best to try to rid themselves by
              coughing or spitting, if they can, the blood out in order to clear their air
              passages. But once it's started, it's a one-way street. So inevitably it's all
              downward and that person is going to choke to death and finally expire,
              but not until after they've gone through a very agonizing episode.

    (3255:2-12). Dr. Jones further explains that exsanguination is also not a pleasant way

    to die.



                                                   124
           A person who exsanguinates either externally or internally has several
           factors which come into play. The biggest, of course, which is blood loss.
           Blood loss leading to anxiety, apprehension, an impending sense of doom.
           And as you continue to lose your blood volume and you lose your oxygen-
           carrying capacity, you also become short of breath, until you finally lose
           consciousness and die.

    (3257:1-8).

           This aggravator must be looked upon through the eyes of the victim. State v.

    Ryan, 239 Neb. at 431. These victims suffered mental anguish before they were shot.

    Armed and disguised men enter a bank in which they work or they are a patron. This is

    a "worst nightmare" scenario. They all must have immediately feared for their lives.

    Then they were shot, but they did not die instantly.         They were not rendered

    unconscious by the bullets entering their bodies.     After being shot they were left

    conscious and alert, they know they've been shot by armed robbers, they fear they

i   could be shot again, they are drowning in their own blood, gasping for breath, desperate

    for help fearing that death is upon them soon.

           From the victim's standpoint, time stretches in such a situation.    Sandoval's

    victims died within a relatively short time of being shot, but that time was agonizing.

    Those seconds and minutes seemed very long indeed to the victims. It was all they had

    to cling to. This would cause tremendous suffering and great mental anguish.

           The State provided enough evidence for the conclusion that this aggravator

    existed. The district correctly overruled Sandoval's Motion for a Judgment of Acquittal

    as to the first element of Aggravating Circumstance 0, the murder was especially

    heinous, atrocious, or cruel.




                                              125
                                   Sandoval's authority

       In the Oklahoma case cited by Sandoval, the victim was rendered unconscious

immediately upon being shot.      It is undisputed that was not the case with any of

Sandoval's victims.

      The Florida, Georgia and North Carolina cases are somewhat more similar on

their facts, but distinctions exist. The victims that lingered for days likely entertained

some hope of survival once in the hands of medical professionals. Sandoval's victims

never saw hope. Beyond that, each of these cases turn upon these states' unique

interpretation of their uniquely narrowed state statutory aggravating circumstances.

Those interpretations do not control here.

                                             v.
                      The murder manifested exceptional depravity.

                                      The evidence



      Exceptional depravity in a murder exists when it is shown, beyond a
      reasonably doubt, that the following circumstances, either separately or
      collectively, exist in reference to a first degree murder: (1) apparent
      relishing of the murder by the killer; (2) infliction of gratuitous violence on
      the victim; (3) needless mutilation of the victim; (4) senselessness of the
      crime; or (5) helplessness of the victim.

State v. Joubert, 224 Neb. 411,431 (1986).

      The State provided adequate evidence to prove that Sandoval relished the five

murders at US Bank. Micki Koepke testified that she walked into the bank and saw

Sandoval leaning against the center teller counter, holding a gun, with a smile on his




                                             126
face, as his victims lay about him. (2111:7-12) Sandoval bragged about the robbery to

a cellmate. (3193:19-3194:14). Even when captured, Sandoval smiled for pictures and

throughout his interview with William Kaufhold. (3105:3-13)

        These facts, taken together, along with the rest of the evidence allowed the jury

to reasonably conclude that Sandoval took great pleasure in the homicidal results of his

robbery plan-he relished in these murders.

        Further, the evidence clearly shows these victims were helpless. Three men

carrying guns walked inside the bank and began shooting. The victims had no where to

run and no time to hide. The victims were trapped. There is no evidence that any of the

victims resisted Sandoval or his co-perpetrators in any manner whatsoever.

        The district court did not error in overruling Sandoval's Motion for a Judgment of

Acquittal as to the second element of Aggravating Circumstance 0, that the murder was

especially heinous, atrocious, or cruel.



        This aggravating circumstance looks for evidence of what a murderer was

thinking or feeling about his murders-Did he enjoy them? Did he take pleasure in

them?

        Both Arizona cases cited by Sandoval involve an insensitive description of the

actions of a victim or the characteristics of a victim, but they were found not to be

evidence of the mental attitude of the murderer. They are not evidence of pleasure.

Smiling as one murders, bragging about it afterwards, smiling when captured           and

absolutely no demonstration of remorse all allow us to look into the heart and mind of

Sandoval and how he views his murders. There is nothing to be seen there that doesn't




                                           127
demonstrate a man who relishes the power he believes committing a homicide brings

him.

                                           IV.

                            A great risk of death to others.

       First, each aggravating circumstance is found in the context of a single murder.

With respect to each murder committed by Sandoval, four other murders were

committed at the same time and in the same course of conduct. Each of those four

other murders are properly weighed in determining if this aggravating circumstance is

applicable to the single murder in question.

       The State also provided substantial evidence and testimony that Sandoval and

his co-defendants gravely endangered the lives of Cheryl Cahoy, Susan Staehr, and

Micki Koepeke during the course of the five murders.        (3348:13-3350:12; 2109:14-

2112:24; 2365:13-2367:25).     Cheryl Cahoy and Susan Staehr sat in Lola Elwood's

office along with Lola Elwood when Galindo entered the office and began shooting at

them. The shots killed Lola Elwood and created an obvious great risk of death for both

Cheryl Cahoy and Susan Staehr. Micki Koepeke walked through the doors of the US

Bank as the murders were in progress and ran for her car as shorts were fired directly at

her, clearly creating a risk of death for Micki Koepeke. Some of the rounds fired at Micki

Koepke found their way into the public space, crossing the busy intersection of 13th and

Pasewalk and one struck a Burger King drive-thru window across the street,

endangering the lives of anyone in their path.




                                           128
         The jury had more than enough evidence to support their decision in favor of the

"risk of death" aggravator, thus the district court correctly overruled Sandoval's Motion

for a Judgment of Acquittal as to the aggravator of great risk of death to others.



                              ASSIGNMENT OF ERROR #32

                            Mitigation phase rebuttal evidence

Sandoval assigns this error on page 21 and argues this error on pages 173-180 of his

brief.

                                              I.

                                   Questions presented

Did Sandoval have a right to put on rebuttal evidence at the mitigation phase of his trial?

Was his trial counsel ineffective for not making an offer of proof regarding Sandoval's

alleged rebuttal testimony?



                                        The record

         When the State rested its case in the mitigation trial, the district court allowed

Sandoval to address any need for rebuttal testimony. (4953:2) Sandoval's trial counsel

requested the court allow rebuttal consisting of Sandoval re-taking the stand and the

calling of additional rebuttal witnesses. Sandoval's counsel indicated to the district court

that he had been prepared to proceed without rebuttal. "I anticipated the court would

rule that there would be no rebuttal allowed.        I tried to cover that in most of my

examinations I have done so far." (4953:9) Sandoval did not provide the district court




                                            129
any information as to what Sandoval or the other proposed rebuttal witnesses might

address. (4953:6-19) The district court then ruled:

        I don't know that there was any new materials developed by the state in their

        presentation, therefore I see no need for any rebuttal, and find that any rebuttal

       would not have an probative value as to the issues facing this panel.

(4954:4)

                                            III.

                                    No offer of proof.

       After the district court overruled Sandoval's request to put on rebuttal evidence,

Sandoval did not make an offer of proof with respect to the testimony that could be

offered by he and his rebuttal witnesses.          This Court has said, "Error may not be

predicated upon a ruling of a trial court excluding testimony of a witness unless the

substance of the evidence to be offered by the testimony was made known to the trial

judge by offer Of was apparent from the context" State v; Gorlis, 237 Neb: 97,109,465

N.W.2d 132, 141 (1991).

       There exists no basis on this record for this court to find error in the exclusion of

rebuttal testimony at the aggravation phase of Sandoval's trial.

                                            IV.

                 No state or federal constitutional "right" to rebuttal

       Sandoval argues this assignment of error as a state and federal constitutional

claim. "The refusal of the trial court to not allow rebuttal testimony was in violation of

the appellant's federal and state constitutional right to due process and a fair trial.

Brief, p. 75.




                                           130
       Sandoval offers no authority in support of the proposition that he has a state or

federal constitutional right to rebuttal. We have also failed to locate any indication that

such a right exists.

       This assignment of error is without merit.

                                            v.
                   Sandoval's rebuttal did not relate to new issues

       "The abuse of discretion standard is applied to an appellate court's review of a

trial court's ruling on the admissibility of rebuttal testimony." State v. Molina, 271 Neb.

488, 513, 713 N.W.2d 412, 437 (2006). Neb. Rev. Stat. Section 28-2521 provides that

"[evidence may be presented as to any matter that the presiding judge deems relevant

to mitigation ... [and] [a]ny such evidence which the presiding judge deems to have

probative value may be received."

       This Court has said, "Rebuttal evidence is confined to that which explains,

disproves; or counteracts evidence introduced .by the adverse party;" State v; Molina,

271 Neb. at 513, 713 N.W.2d at 437. And "[r]ebuttal evidence is confined to new

matters first introduced by the opposing party and not as an opportunity to bolster,

corroborate, reiterate, or repeat a case in chief." Id., 271 Neb. at 513, 713 N.W.2d at

437.

       There is nothing in this record which shows that Sandoval, if allowed a rebuttal,

would have introduced the long list of rebuttal evidence he gratuitously places in his

brief. Brief, p. 176-179. Assuming such a laundry list even existed at the time of the

district court's ruling, the trial court was never offered such information. Therefore, the




                                           131
trial court did not abuse its discretion in denying Sandoval's request for rebuttal

evidence.

                                             v.
                             Effective assistance of counsel

                                   Deficient performance

        Because there does not exist a state or federal constitutional right to offer

rebuttal evidence in the mitigation phase of a first degree murder trial, it is impossible to

conclude that Sandoval's trial counsel was deficient in not obtaining it or taking further

steps to preserve his client's non-existent right.

                                         Prejudice

        The record appropriately before this court does not reflect the substance of the

evidence Sandoval desired to offer in rebuttal. Therefore, there exists no evidence that

Sandoval was prejudiced by his trial counsel's failure to convince the district court to



        Beyond that, there is no rational argument that the decision of trail counsel

creates a reasonable probability the result of the proceeding in question would have

been different. State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418,430 (2008).



                             ASSIGNMENT OF ERROR #33

             Evidence considered in the course of proportionality review

Sandoval assigns this error on pages 21-22 and argues this error on pages 180-181 of

his brief.




                                            132
                                               I.

                                    Question presented

Can a sentencing panel, in conducting a proportionality review in a potential capital

case, consider evidence of sentencing orders from all Nebraska first degree murder

cases?

                                              II.

                                         The record

         The district court received into evidence, over the State's objection, Exhibits 607-

617. (T472) However, the sentencing panel concluded that the opinions of this court

"allows comparison reviews of only those cases in which the death penalty was

imposed." (T472)

         The panel finds that the sentences of death imposed in this case are not

         excessive or disproportionate to the penalty imposed in similar cases considering



(T473)



                                              III.

 The trial court did not arbitrarily deny Sandoval proportionality review because

the trial court considered similar cases as required by Neb. Rev. Stat. §29-2522(3).

      While proportionality review is not required in a capital sentencing scheme by the

U.S. Constitution, Nebraska has provided for a proportionality review as part of its

sentencing scheme. See Pulley v. Harris, 465 U.S. 37,45 (1984). Nebraska statutes




                                             133
    provide for proportionality review by both the sentencing panel and the Supreme Court.

    See Neb. Rev. Stat. §§ 29-2522(3), 29-2521.03.

           Section 29-2522(3) provides that in determining the appropriate sentence in a

    capital case, the panel of judges msut consider "whether the sentence of death is

    excessive or disproportionate to the penalty imposed in similar cases, considering both

    the crime and the defendant."        § 29-2522(3) (emphasis added).        That statutory

    procedure was enacted in 1973.

           This court has consistently interpreted the references to "similar cases" in §§ 29-

    2522(3) and 29-2521.03 to include only those cases in which the death penalty has also

    been imposed. State v, Bjorklund, 258 Neb. 432, 482-83 (2000) (overruled on other

    grounds); See Also State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007); State v.

    Gales, 269 Neb. 443, 497-98 (2005); State v. Moore, 250 Neb. 805 (1996); State v.

    Victor, 235 Neb. 770 (1990); State v. Joubert, 224 Neb. 411 (1986); State v. Palmer,

I   224 Neb. 282(1986); The Nebraska Legislature has never enacted legislation which

    would alter that interpretation of this statutory language.

           Sandoval was afforded the capital sentencing process provided by Nebraska

    statutes. He offers no authority finding that process to be defective under either our

    state or federal constitutions.




                                                134
                            ASSIGNMENT OF ERROR #34

  The sentencing panel's consideration of the presentence investigation report

Sandoval assigns the error on page 22 and argues the error on pages 182-85.

                                              I.

                                  Question Presented

Did   the    sentencing   panel   consider     evidence   of   "non-statutory   aggravating

circumstances" in arriving a Sandoval's sentence?

                                              II.

                                       The record

       The   aggravation phase jury,       not the sentencing panel,      determined the

aggravating circumstances which the sentencing panel was required to weigh.            The

sentencing panel could not and did not weigh any aggravating circumstances which

were not found to exist by the aggravation phase jury. (T463)

       Sandoval admits that the·Presentencelnvestigation Report·was· not -erdered until

after the aggravation phase jury had made its required findings. Brief, p. 182.

      The PSI created as instructed by the district court contained the regular PSI and

also victim impact statements. (3425:19-21) The district court had the victim impact

portion of the PSI sealed. (3425:20-21).

      [T]he [sentencing] panel has disregarded and not considered any portion
      of the victim impact statement contained within the updated presentence
      investigation report or the video presentation published in open court that




                                             135
       includes characterizations and opinions about the crimes, the defendant,
       and what the appropriate sentence should be. Such characterizations and
       opinions are not to be considered by the sentencing court as they are
       constitutionally impermissible in a capital sentencing case.

(T460-61).

                                             III.

               "Non-statutory aggravating circumstance" do not exist

       Sandoval argues that his sentence was tainted by his sentencing panel's

consideration of "non-statutory aggravating circumstances".           Brief, p. 184.   "Non-

statutory aggravating circumstances" do not exist.

       Nebraska statutes define the aggravating circumstances which may be urged by

the State and which may be found by an aggravation phase jury. Section 29-2523(1).

Only aggravating circumstances found to exist beyond a reasonable doubt by an

aggravation phase jury may be weighed by a sentencing panel. Section 29-2522(1).

       There is no indication on this record that the sentencing panel consider or

weighed "non-statutory aggravating circumstances."

                                            IV.

                                         No error

       Sandoval does not inform us what specific "victim impact" evidence he believes

was improperly considered by the sentencing panel. That coupled with the fact that this

court has held victim impact statements and evidence showing the victim's personal

characteristics or the emotional toll of the crime on the victim's family is admissible to a

sentencing body (State v. Bjorklund, 258 Neb. 432, 484-85 (2000)) and one has a

difficult time determining the exact nature of Sandoval's complaint here.



                                            136
       Sandoval fails to provide any evidence that the sentencing panel considered

inappropriate victim impact evidence in imposing the death sentence, thus there exists

not basis for finding error on this record. "The Eighth Amendment is not violated unless

the sentencing body considers impermissible statements in reaching the sentencing

decision.    Bjorklund, at 485.   While a jury may be presumed to have considered

impermissible statements, the presumption for judges is the opposite. Id., See also

Booth v. Maryland 482 U.S. 496 (1987). As this Court noted in State v. Joubert:

       The situation is no different than that presented in a bench trial where the
       judge suppresses a confession, presides over the trial, and then imposes
       sentence. The fact that a judge reviews a confession does not disqualify
       him from continuing to preside over the remaining phases of the trial. This
       is so because it is presumed that judges disregard evidence which should
       not have been admitted.

Bjorklund, at 485 (quoting State v. Joubert, 235 Neb. 230, 249 (1990)).

       If no evidence to the contrary is admitted, the presumption is that a jUdge will

disregard evidence that should not have been admitted. In fact, the sentencing panel

explained in its Order of Sentence,

      [T]he panel has disregarded and not considered any portion Of the victim
      impact statement contained within the updated presentence investigation
      report or the video presentation published in open court that includes
      characterizations and opinions about the crimes, the defendant, and what
      the appropriate sentence should be. Such characterizations and opinions
      are not to be considered by the sentencing court as they are
      constitutionally impermissible in a capital sentencing case.

(T460-61).   Because Sandoval provides no evidence that inappropriate victim impact

statements were actually considered by the sentencing panel, and the panel


                                          137
affirmatively states that it did not consider those portions of the victim impact evidence

and video that were impermissible, this Court should assume that the judges did not

consider any impermissible evidence and Sandoval's death sentences should be

affirmed.



                         ASSIGNMENTS OF ERROR ## 35-36

            Electrocution as a means of enforcing a sentence of death

In State v. Mata, 275 Neb. 1,745 N.W.2d 229 (2008), this court found that enforcement

of a sentence of death by means of electrocution violated the Nebraska Constitution.

That judgment is final. Mata also noted that its finding that a method of execution was

invalid did not affect in any way the validity of a properly imposed sentence of death.

State v. Mata, 275 Neb. at 67-68



                            ASSIGNMENT OF ERROR #37

                     Right to jury for mitigation and sentencing

Sandoval assigns the error on page 22 and argues the error on pages 189-91.

                                            I.

                                   Question Presented

Do the Sixth and Eighth Amendments require a jury to impose the sentence in a capital

case?




                                          138
                                                 II.

                       No increase in punishment       =No need for a jury
           Ring found a Sixth Amendment right to have a jury find any "factors" that would

    serve to increase a guilty prisoner's sentence. Without a jury finding of at least one

    aggravating circumstance, a guilty first degree murderer in Nebraska is never exposed

    to the possibility of receiving a sentence of death. Section 29-2521.

           It is a finding of one or more aggravating circumstances that renders a guilty first

    degree murderer "death eligible" under Nebraska law.             Once death eligible, his

    sentence mayor may not ultimately be death, but the guilty first degree murderer can

    never face a greater penalty than that to which he or she is exposed by virtue of a jury's

    finding of an aggravating circumstance.

           Thus, Ring does not require a jury determine the existence of mitigation

    circumstances or impose the ultimate sentence. The entity in which that responsibility is

i   vested remains within the discretion ofthe respective legislative bodies of our state and

    federal governments.      Under Nebraska statutes, those last two responsibilities are

    vested in a sentencing panel. Section 29-2521.

           A jury must consider any facts increasing a crime's penalty beyond the

    prescribed statutory maximum. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). In

    a capital case, an accused does have the right to have the existence aggravating

    circumstances determined       by the jury because the existence of aggravating

    circumstances determines death eligibility. Ring v, Arizona, 536 U.S. 584, 609 (2002).

    However, this court has noted that it is the determination of death eligibility that exposes

    the defendant to a greater sentence, triggering the Sixth Amendment right to a jury as




                                                139
laid out in Apprendi and Ring. State v. Gales, 269 Neb. 443, 457-58 (2005) (quoting

State v. Gales 265 Neb. 598, 628-29 (2003)). Further,

       the   determination    of   mitigating        circumstances,    the   balancing    of
       aggravating      circumstances    against        mitigating    circumstances,     and
       proportionality review are part of the 'selection decision' in capital
       sentencing, which ... occurs only after eligibility has been determined... [as
       such] [t]hese determinations cannot increase the potential punishment to
       which a defendant is exposed as a consequence of the eligibility
       determination.

Gales, 269 Neb. at 457-58 (quoting State v. Gales 265 Neb. 598, 628-29 (2003)).

Because these determinations do not increase the defendant's potential punishment,

the determination of mitigating circumstances, the balancing of aggravating and

mitigating circumstances, and proportionality review need not be performed by a jury.

Id.



                              ASSIGNMENT OF ERROR #38

      The Sentencing Panel's consideration of the aggravation phase record

Sandoval assigns the error on page 23 and argues the error on pages 191-92.

                                                I.

                                   Questions Presented

Do the Fifth and Sixth Amendments prohibit a sentencing panel from reviewing the

aggravation phase record in determining an appropriate sentence? Was Sandoval's

trial counsel ineffective for failing to object to the sentencing panel's consideration of the

aggravation phase record?




                                             140
                                             II.

                                        The record

       The sentencing panel considered in determining Sandoval's sentence "the bill of

exceptions, exhibits, and transcript from both the guilt or innocence jury trial and the

aggravating circumstances jury trial". (T460)

                                            III.

                                       No objection

       Sandoval raised no objection to the composition of the record considered by the

sentencing panel. Therefore, this issue was not preserved for appellate review.

                                            IV.

                               No authority, no argument

       Sandoval offers absolutely no authority in support of this argument. Therefore,

the State has nothing to rebut.

       It could also be concluded Sandoval offers no substantive argument in support of

this assignment of error.      As such, this assignment of error is not worthy of

consideration by this court.

                                            V.
                                  The statutory procedure

      Once aggravating circumstances have been found by a jury, the rules of

evidence may be relaxed in order that the sentencing panel can review al/ information

necessary for the imposition of an appropriate sentence. State v. Hessler, 274 Neb.

478, 513 (2007) (citing State v. Bjorklund, 258 Neb. 432 (2000)).       This court has

recognized that,




                                           141
       A sentencing court has broad discretion as to the source and type of
       evidence and information which may be used in determining the kind and
       extent of the punishment to be imposed, and evidence may be presented
       as to any matter that the court deems relevant to the sentence.

Hessler, 274 Neb. at 513 (citing State v. Bjorklund, 258 Neb. 432 (2000)). Section 29-

2521 requires that a sentencing panel consider evidence of the crime as well as

aggravating circumstances to properly conduct its balancing and proportionality

sentencing functions. Id. See Also Neb. Rev. Stat. §§ 29-2521(2)-(3).

                                              VI.

                             Effective assistance of counsel

                                    Deficient performance

       If Sandoval can find no authority to support this assignment of error it would

seem unlikely that his trial counsel was deficient in his performance if he wasn't moved

to assert this non-existent right on behalf of his client.

                                          Prejudice

       There is no rational argument that the decision of trail counsel creates a

reasonable probability the result of the proceeding in question would have been

different. State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418, 430 (2008).



                              ASSIGNMENT OF ERROR #39

                     Error to inform jurors they would not impose

Sandoval assigns the error on page 23 and argues the error on pages 192-196.




                                             142
                                                     I.

                                         Questions Presented

    Was it a violation of the Eighth Amendment for the district court to accurately inform the

    jury that they would not be deciding Sandoval's sentence? Was trial counsel ineffective

    for not objecting to the jury being told the truth?

                                                    II.

                                               The record

           During voir dire, the district court asked potential jurors similar questions about

    their ability to put their personal beliefs aside and remain impartial.

           As I have stated earlier, Mr. Sandoval is charged with five counts of first
           degree murder. Under Nebraska law if a person is found guilty of first
           degree murder by a jury the possible penalties that can be imposed by a
           three-judge panel are either death or life in prison.           Knowing that, my
           question is, do you have any personal opinions or beliefs about the death

i          p~IlCllty ""bigh ""QL!lcj pr~,,~llt YQU frQI1l I1lCl ki1l9, Qr vv9L!lcj substantially
           impair your ability to make, a finding of guilt on each charge of first degree
           murder if the evidence at the end of the trial warranted such a verdict?

    (837:16-838:2; 890:22-891:7; 869:10-20; 1029:16-1030:6; 1091:19-1092:4; 1107:10-20;

    1127:10-20; 1143:8-18; 1256:6-16; 1274:4-15; 1664:19-1665:4; 1707:16-1708:1). If the

    jurors indicated any disagreement with the death penalty, to further ensure impartiality,

    the district court asked:

           Can you set aside your feelings about the death penalty and take an oath to be
           fair and impartial and follow the law regardless of the possible death sentence in
           the event of conviction? .. So I take it then that your beliefs are not so strong that
           you could not take an oath to be a fair and impartial juror, is that correct?




                                                   143
(838:4-11; 891:10-13; 1030:4-6; 1665:11-14).



                                            III.

                                      No objection

       No objection was made at trial with respect to the information provided jurors as

to their role in the trial process. Therefore, this issue was not properly preserved for

appellate review.

                                           IV.

                                Caldwell v. Mississippi

       Sandoval points to Caldwell v. Mississippi, 472 U.S. 320 (1985) in claiming that

his Eighth Amendment rights were violated.         In Mississippi, juries are given the

responsibility of imposing criminal sentences. Caldwell found that a capital sentence

imposed by a jury, when that jury was affirmatively led to believe that responsibility for

determining the appropriateness of a death sentence rested not with the jurors but

ultimately with the appellate courts violated the Eighth Amendment.

       Caldwell has nothing to do with this case.      Caldwell does not stand for the

propostion that jurors in a potential capital case cannot be "death qualified".       The

concern in Caldwell was that a jury, believing an appellate court determined if death

was appropriate, would fail to "recognize the gravity of its task" and not "proceed with

the appropriate awareness of its truly awesome responsibility." Caldwell v. Mississippi,

472 U.S. at 341.

      In this case, attorneys affirmatively indicated during voir dire that jurors were

responsible for determining if Sandoval was eligible for the death penalty. (1152:8-23).




                                           144
    Nothing in this record indicates that the district court ever gave the jury the impression

    that the sentencing panel would correct the jury's verdicts on guilt or aggravation.

    Instead, the sentencing panel is bound by those determinations.

             There is no Eighth Amendment violation in this correct application and

    explanation of Nebraska law.

                                               v.
                                     Assistance of counsel

                                      Deficient performance

             There exists no legitimate argument that an Eighth Amendment violation

    occurred in the process of the district court death qualifying Sandoval's jury. Therefore,

    the fact that Sandoval's trial counsel did not object to that process is not deficient

    performance.

                                            Prejudice

i            There is no rational argument that the c1ecisionof trail counsel creates a

    reasonable probability the result of the proceeding in question would have been

    different. State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418, 430 (2008).



                                .ASSIGNMENT OF ERROR #40

                                   Endorsement of witnesses

    Sandoval assigns this error on page 23-24 and argues this error on pages 196-97 of his

    brief.




                                              145
                                              I.

                                   Questions Presented

Did the State's endorsement of over 500 potential witnesses violate Sandoval's right to

due process and a fair trial? Was Sandoval's trial counsel ineffective for failing to object

to the State's endorsement of these witnesses?

                                             II.

                                        No objection

         In order to obtain a reversal based on the additional endorsement of witnesses, a

defendant must have requested a continuance at trial and must demonstrate prejudice.

State v. Boppre, 234 Neb. 922, 941 (1990) (citing State v, Ellis, 223 Neb. 779 (1986»;

See also State v. Campbell, 239 Neb. 14, 20 (1991).             The record indicates that

Sandoval failed to move for a continuance based on, or to object to, the endorsement of

these witnesses; This issue was not preserved for appellate review;

                                             III.

                                        No authority

         Sandoval argues no authority in support of this assignment of error. It is without

merit.

                                             IV.

                                 The State's requirement

         Section 29-1602 requires the endorsement of witnesses in order to notify the

defendant as to the witnesses who may potentially testify against him and allow the




                                            146
defendant the opportunity to investigate them for his defense. Neb. Rev. Stat. § 29-

1602; See State v. Boppre, 234 Neb. 922, 941 (1990).

                                           V.
                                     No prejudice

       Sandoval makes no showing that the witnesses endorsed by the State were not,

in fact, potential witnesses for the State. In the absence of that showing, he has no

basis for complaint.

      There is nothing in this record demonstrating that Sandoval suffered any

prejudice as a result of these endorsements.       The record indicates that Sandoval

prepared an adequate defense to the charges against him.

                                          VI.

                                Assistance of counsel

                                       Prejudice

      Thereisnerational argument that the decision of trail· counsel creates a

reasonable probability the result of the proceeding in question would have been

different. State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418, 430 (2008).

                                 Deficient performance

      If the endorsement of the State's potential witnesses posed a problem for the

defense, this record does not reflect it. Therefore, one cannot conclude trial counsel's

performance was deficient.




                                          147
                              ASSIGNMENT OF ERROR #41

                         The decision to seek a penalty of death

Sandoval assigns this error on page 24 and argues this error on pages 198-199 of his

brief.

                                             I.

                                   Questions Presented

As Sandoval cites no authority in either his assignment of error or his argument, we are

uncertain what question is presented.

                                             II.

                                       No objection

         No objection was made at trial with respect to the State's decision to seek a

sentence of death in this case. Therefore, this issue was not properly preserved for

appellate review.



                                        No record

         There is absolutely no record to support Sandoval's rash speculation with respect

to the motivations of the State in seeking a sentence of death in Sandoval's case.

                                            IV.

                              No evidence of racial animus

         Suffice it to say Sandoval left the bank robbery that he planned and executed

with five innocent people bleeding out at his feet. If that scenario does not merit serious

consideration of a death sentence, we shudder to imagine what does.




                                            148
       Sandoval was not selected for punishment based on his race, but based on his

behavior. The State did not select Sandoval's race. The State did did not select the

race of Sandoval's victims.

                                             V.
                                  No authority for relief

       To prove that the race of a defendant unconstitutionally contaminates

enforcement of the death penalty, the defendant must establish at a minimum that the

decision to enforce the death penalty is based on "a conscious discriminatory purpose,

resulting in a discriminatory effect suffered by the defendant."     State v. Reeves, 258

Neb. 511, 521 (2000) (citing McCleskey v. Kemp, 481 U.S. 279 (1987)).                Under

McClesky, to show a defendant's race unconstitutionally tainted capital sentencing, the

defendant, at a minimum, must establish that the decisionmaker in the case "acted with

a discriminatory purpose, resulting in a discriminatory effect suffered by the defendant."

Sieiev: Reeves; 258 Neb; at 522 (citing MeGleskey v; Kemp, 484 U,S; 279 (1987));

       Sandoval's brief does not even argue facts which, if proven to be true, would

show that the State of Nebraska, the Madison County Attorney's Office, or the Judges

involved with the trial and sentencing consciously discriminated against Sandoval due to

his race in seeking the death penalty and ultimately sentencing Sandoval to death.

                                            VI.

                                 Assistance of counsel

      As Sandoval cannot articulate a legal theory of relief on this claim, it is hard to

imagine that his trial counsel was deficient in not asserting this meritless argument.




                                           149
        There is no rational argument that the decision of trail counsel creates a

reasonable probability the result of the proceeding in question would have been

different. State v. Jackson, 275 Neb. 434, 443, 747 N.W.2d 418, 430 (2008).



                              ASSIGNMENT OF ERROR #42

            Ineffective assistance of counsel; Prior consistent statement

Sandoval assigns this error on page 24 and argues this error on pages 199-200 of his

brief

                                            I.

                                  Question Presented

Did Sandoval's trial counsel provide ineffective assistance of counsel by not adducing

evidence of a prior consistent statement relating to Sandoval's claim that he used LSD

on the date of the murders?



                                       No record

        Sandoval's entire argument of this assignment of error is based upon

"statements" which are not a part of this record. There is no legitimate way in with the

State may respond to this argument or in which this court could evaluate it.

                                           III.

                                  Effective assistance

        There is no evidence what the alleged statements contain. Therefore, there is no

evidence of deficient performance or prejudice to Sandoval for their not having been

offered in evidence.




                                          150
       There is no rational argument that the decision of trail counsel creates a

reasonable probability the result of the proceeding in question would have been

different. State v. Jackson, 275 Neb. 434, 443,747 N.W.2d 418, 430 (2008).



                                    CONCLUSION

       For each of the foregoing reasons, we urge this court to affirm each of the

sentences imposed by the district court.

                                           Respectfully submitted,

                                           STATE OF NEBRASKA, Appellee,

                                           BY     JON BRUNING, #20351
                                                  Attorney General




                                           BY

                                                  Solicitor General
                                                  2115 State Capitol
                                                  Lincoln, NE 68509-8920
                                                  Tel: (402) 471-2682

                                                  Attorneys for the Appellee




                                            151
                                              PROOF OF SERVICE


STATE OF NEBRASKA                              )
                                               )   ss.
COUNTY OF LANCASTER                            )

        I, Stephanie Yeager, being first duly sworn, depose and state that two copies of

the brief in the above entitled case were served upon Appellant by depositing said

copies in the United States Mail, postage prepaid, addressed to Appellant's counsel of

record, Ronald E. Temple, Fitzgerald, Vetter & Temple, 1002 Riverside Blvd., #200,

P.O. Box 1407, Norfolk, NE 68702-1407 on August 22, 2008.




        Subscribed in my presence and sworn to before me this cJ;)!i.dday of August,

2008.


           GENERAl NOTARY· State ofNebraska
                   DENISE L FAZEL
                My comm. Exp. June 6,2012                                 v   )

                                                          Notary Public




                                                         152

				
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