SECTION 1 - COLQUITT
234 Neb. 711, 453 N.W.2d 359 (1990) (per curiam)
This is an appeal from the Lancaster County District Court's denial of postconviction relief. We affirm.
The facts are set forth in this court's decision on direct appeal. See State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). In 1981, appellant was convicted of two counts of first degree murder in the 1980 deaths of Janet Mesner and Victoria Lamm. He was prosecuted under a felony murder theory, the State alleging that the deaths occurred in the commission or attempted commission of a sexual assault in the first degree. At trial appellant argued that he was not guilty of the felony murder counts because of his inability (due to voluntary ingestion of mescaline and alcohol) to form the requisite intent needed for a first degree sexual assault or an attempted first degree sexual assault. Alternatively, in the event the jury found that he could entertain the intent to commit the sexual assault or attempted sexual assault, he pled not guilty by reason of insanity. At the conclusion of the trial the jury found appellant guilty on both counts of first degree murder.
Appellant was later sentenced by a three-judge panel to death for each conviction. The sentencing panel found with regard to the death of Victoria Lamm the existence of the aggravating circumstance described in Neb. Rev. Stat. § 29-2523(1)(b) (Reissue 1989), which reads: "The murder was committed in an apparent effort to conceal the commission of the crime, or to conceal the identity of the perpetrator of a crime." The panel also found the existence of the aggravating circumstance stated in § 29-2523(1)(d), which reads: "The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence." Lastly, the panel found the existence of the aggravating circumstance at § 29-2523(1)(e), which reads: "At the time the murder was committed, the offender also committed another murder."
With regard to the death of Janet Mesner, the panel found the existence of aggravating circumstances (1)(d) and (1)(e).
The panel found that no statutory mitigating circumstances existed with regard to either murder. The panel also considered nonstatutory mitigating factors proposed by appellant.
On direct appeal, this court affirmed appellant's convictions and sentences.
* * *
Appellant next contends that where the defense of insanity is presented, a jury instruction that states the appellant is conclusively presumed to intend the consequences of his act is in violation of the 6th, 8th, and 14th amendments to the U.S. Constitution. In the present case the trial court instructed the jury:
"The turpitude involved in the perpetration of or attempted perpetration of a sexual assault in the first degree takes the place of intent to kill or premeditated malice, and the purpose to kill is conclusively presumed from the criminal intention required for perpetration of or attempt to perpetrate a sexual assault in the first degree."
Appellant principally relies on Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). In Sandstrom, the defendant was convicted of "deliberate homicide," defined by state law as a killing which is "purposely or knowingly" committed. The trial judge had instructed the jury that the law presumes that a person intends the ordinary consequences of his voluntary acts. The Supreme Court, in its opinion, stressed that the issue of whether the homicide was committed "purposely or knowingly" was an essential element of the crime under the state's statutory scheme. The Court found the instruction unconstitutional because if the jury understood the challenged instruction to state a conclusive presumption, it would deny the defendant the benefit of the presumption of innocence on the mental element of the crime, a procedure which would be unconstitutional under Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952). On the other hand, if the jury took the instruction to raise a rebuttable presumption, it would have shifted to the defendant the burden of disproving the same element, a procedure unconstitutional under Mullaney v. Wilber, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).
Appellant's reliance on Sandstrom is misplaced. Sandstrom held unconstitutional a mandatory or burden-shifting presumption that relieved the prosecution of the burden to prove beyond a reasonable doubt an element of the crime charged, in that case intent under the state's deliberate homicide statute. In the present case the jury was instructed with respect to felony murder only. In Nebraska, no specific intention is required to constitute felony murder other than the intent to do the act which constitutes the felony during which the murder occurred. State v. Perkins, 219 Neb. 491, 364 N.W.2d 20 (1985). There need not be an intent to kill in felony murder, only an intent to commit the underlying felony. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982). Here, the turpitude involved in the sexual assault takes the place of intent to kill or premeditated malice, and the purpose to kill is conclusively presumed from the criminal intention required for the sexual assault. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). The State is not relieved of its burden to prove that appellant engaged in the underlying felony with the requisite mens rea. The State having proved the intent, the felony murder doctrine merely imputes the intent incident to the underlying felony to the killing, which is committed in the perpetration or attempted perpetration of any of the predicate offenses set forth in the statute. Sandstrom is generally inapplicable to felony murder counts. See, e.g., State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984), * * * and cases cited therein.
The instructions in the present case clearly instructed the jury that the State must prove beyond a reasonable doubt each and every material element and that the State must prove beyond a reasonable doubt that appellant was sane when he committed the underlying felony. The instructions did not deny the appellant the benefit of the presumption of innocence on the mental element of the underlying felony, nor did it shift to the appellant the burden of disproving this element. In returning its verdicts, the jury found the State carried its burden. There is no constitutional infirmity in the instructions.
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