Victim's husband witnesses electrocution; few demonstrators outside prison

By Robynn Tysver

The Associated Press

LINCOLN -- Robert E. Williams, who confessed to murdering three women and trying to kill a fourth during a three-day rampage in 1977 that crossed into three states, died today in Nebraska's electric chair.

Williams, 61, was pronounced dead at 10:23, six minutes after the first jolt of electricity was delivered.

His execution was the first daytime execution and the first to be witnessed by a victim's relative in Nebraska since the state resumed carrying out the death penalty in 1994.

Williams was convicted in Lincoln in 1978 for the murders of Patricia McGarry and Catherine Brooks in 1977. Williams shot McGarry in the face during an argument, and then raped and murdered Brooks, who came to McGarry's aid. He was originally sentenced to death for both murders, but one death sentence was thrown out on appeal.

The double murder was the beginning of a three-state rampage that started with another rape in Lincoln the next day and the murder of Virginia Rowe in Sioux Rapids, Iowa, the day after that.

The next day, Williams kidnapped a railroad worker and kidnapped, shot twice, raped and dumped a St. Paul, Minn., woman - who survived - in a field. He was arrested in Lincoln eight days after the double homicide.

Wayne Earl Rowe, who found his wife's naked, bloody body in their bed in 1977, was allowed to witness the execution by Nebraska State Penitentiary administrators. He said seeing Williams die gave him closure to his wife's murder.

Robert Williams

Tuesday, Dec. 2, 1997

Robert Williams, who confessed to murdering 3 women and trying to kill a 4th during a 3-day, 3-state rampage in 1977, was executed today in Nebraska's electric chair.

It was Nebraska's 1st daytime execution and the 1st to be witnessed by a victim's relative since the state resumed carrying out the death penalty in 1994.

Williams, 61, was pronounced dead at 10:23 am, 6 minutes after the 1st jolt of electricity.

The execution came within hours after the US Supreme Court rejected his request to review the dismissal of his lawsuit alleging that the electric chair is cruel and indecent. Nebraska is 1 of only 5 states that use the electric chair.

Williams' attorneys notified the state that no further appeals were planned; the Nebraska Pardons Board would not consider a request for a clemency hearing.

Williams was sentenced to death for murdering Catherine Brooks and Patricia McGarry in Lincoln in 1977. He also admitted killing Virginia Rowe in Iowa and raping and shooting a woman who survived in Minnesota.

Williams said his 3-day rampage was induced by drugs and alcohol.

State officials moved the execution to the morning, rather than the traditional just-past-midnight time, to reduce crowds outside the prison.

Only a few demonstrators were at the prison an hour before the execution. That was in stark contrast to the rowdy crowds present at previous executions.

1 of the 10 official witnesses was Wayne Rowe, who discovered his wife's nude, bloody body at the couple's Iowa farm 2 decades ago. Rowe made eye contact with Williams before the electrocution.

After the execution, Rowe said that "it did not take long. I have been waiting 20 years for this. I did not think it could be true."

Over the years, Williams had expressed remorse for his crimes and apologized to his victims' families. In 1 of his last interviews, he said he was tired of fighting for life and waiting for death, telling the Omaha World-Herald in an interview published Sunday that "I pray to have the measure of grace to face what lies ahead."

10 other men remain on Nebraska's death row.

Williams becomes the 1st condemned prisoner to be executed in Nebraska this year, and the 3rd overall since that state resumed executions in 1994. He also becomes the 71st condemned prisoner to be executed this year in the USA, and the 429th overall since America resumed executions on Jan. 17, 1977.

SEX: M RACE: B TYPE: N MOTIVE: PC/Sex.

MO: Killed sister and two other women; raped/shot one who survived

DISPOSITION: Executed in Nebr., Dec. 2, 1997.

40 F.3d 1529

Robert Williams, Plaintiff-Appellant,
v.
Harold W. Clarke, Defendant-Appellee.

Docket number: 93-2733

Federal Circuits, 8th Cir.

January 25, 1995

Before HANSEN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

HANSEN, Circuit Judge.

Robert Williams appeals the district court's1 partial denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec . 2254. 823 F.Supp. 1486. In 1978, a Nebraska state-court jury convicted Williams of murdering two young women, Patricia McGarry and Catherine Brooks. The jury also convicted Williams of the first-degree sexual assault of Catherine Brooks. A panel of three state trial judges sentenced Williams to death by electrocution for each count of murder and to an indeterminate sentence of imprisonment not to exceed 25 years for the sexual assault. After his direct appeal to the Supreme Court of Nebraska and two state postconviction actions proved to be unsuccessful, Williams petitioned the United States District Court for a writ of habeas corpus. Adopting the report and recommendation of the magistrate judge, the district court granted the writ for the death sentence imposed for the murder of Patricia McGarry, but the district court denied the writ for the death sentence imposed on Williams for the murder of Catherine Brooks. Williams appeals the denial of habeas corpus relief for the death sentence imposed for the murder of Catherine Brooks. We affirm the judgment of the district court.

I.

The facts giving rise to Williams's convictions and death sentences are fully described by the Supreme Court of Nebraska in Williams's direct appeal. See State v. Williams, 205 Neb. 56, 287 N.W.2d 18, 21-23 (1979), cert. denied, 449 U.S. 891 , 101 S.Ct. 255, 66 L.Ed.2d 120 (1980). We summarize them as follows:

In the late afternoon of August 11, 1977, Patricia McGarry and Catherine Brooks were found murdered in McGarry's apartment in Lincoln, Nebraska. Catherine Brooks was found dead on the living room floor lying naked in a pool of blood originating from three bullet wounds to her head and back. A medical examination revealed the presence of spermatozoa in her vagina and rectal tract, deposited within an hour of her death. A bloody trail led from the living room to Patricia McGarry's body, which was found dead on the dining room floor mortally wounded from three shots to her head and neck.

Williams's fingerprints were found in the apartment. Rifle shells found in the apartment matched those purchased by Williams the previous night when he had also purchased a .22 revolver. Further evidence established that on the morning of August 11, 1977, Williams went to the apartment of another young woman in Lincoln with whom Williams was acquainted. Williams threatened to shoot the young woman with a revolver and then he raped her repeatedly. Late in the afternoon, Williams ordered the woman and her two-year-old child to leave with him, but as they approached the curb, he let them go. The young woman immediately called the police. She testified that Williams drank one beer and smoked one joint of marijuana while with her that day but did not appear to be intoxicated.

The next morning, August 12, 1977, a deputy sheriff who had observed Williams's car abandoned at a park in Cherokee County, Iowa, since 10:15 p.m. the night before, had the car towed away. The same morning, an Iowa farmer observed Williams walking by his farmyard. Williams asked directions to the nearest town and the farmer gave Williams directions which led Williams past the Wayne Rowe farmhouse one-half mile west. Williams departed in that direction. Wayne Rowe returned home shortly after noon that day to find his wife on the bed naked, sexually assaulted, and murdered. Hairs found in her hand and on the bedspread matched Williams's hair. A bullet recovered at this Iowa murder scene matched bullets taken from the bodies of the Nebraska victims. Mrs. Rowe's car was gone and a shotgun which had been in the Rowes' home was missing. Mrs. Rowe's car was later found in St. Paul, Minnesota.

On August 13, 1977, Williams abducted a man in a suburb of St. Paul and ordered him at gunpoint to drive into the city where the victim was later found bound and gagged in a railroad freight yard. This man testified that Williams did not appear to be intoxicated. Later that day, Williams shot a woman in St. Paul as she was getting into her car. Williams then drove her in her car to a remote area where he raped her, tied her up, and left her. This woman managed to live by getting herself untied and finding help at a farmhouse. Williams travelled to Chicago, Illinois, for a few days and then returned to Lincoln, Nebraska, where police arrested him in a railroad yard on August 18, 1977.

After his arrest, Williams made a statement to the police admitting that he shot both Brooks and McGarry in Lincoln but denying that he raped Brooks. The state of Nebraska charged Williams with two counts of first-degree murder and one count of first-degree sexual assault. Williams pleaded not guilty by reason of insanity. The jury returned guilty verdicts on all three counts.

At his sentencing hearing, the three-judge panel considered the aggravating and mitigating circumstances statutorily required by Nebraska Revised Statute Sec. 29-2523.2 The sentencing panel found the existence of four of the statutory aggravating circumstances listed in Sec. 29-2523(1), three of which applied to both murders and one of which applied solely to the murder of Catherine Brooks. The three aggravating circumstances found to exist with regard to both murders are as follows: (1) aggravating circumstance (1)(a), "The offender was previously convicted of ... a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity"; (2) aggravating circumstance (1)(d), "The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"; and (3) aggravating circumstance (1)(e), "At the time the murder was committed, the offender also committed another murder." The fourth aggravating circumstance, (1)(b), "The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime"; was found to apply solely to the murder of Catherine Brooks.3

The sentencing panel found one mitigating circumstance--that Williams had an antisocial personality which, when coupled with his intoxication and emotional disturbance at the time, somewhat diminished his capability to conform his conduct to the requirements of law but did not excuse him from the legal consequences of his crimes. See Williams, 287 N.W.2d at 28. The sentencing panel found that the aggravating circumstances outweighed the mitigating circumstance with respect to each murder and imposed the death penalty on Williams for each count of first-degree murder. The sentencing panel also imposed a term of imprisonment lasting at least 8 1/3 years but not more than 25 years on the count of first-degree sexual assault.

The Supreme Court of Nebraska affirmed Williams's convictions and sentences. See Williams, 287 N.W.2d at 30. Williams filed an action for state postconviction relief in which the state district court denied relief and the Supreme Court of Nebraska affirmed the denial of relief. See State v. Williams, 217 Neb. 539, 352 N.W.2d 538 (1984). In his second state postconviction action, the state district court denied relief without an evidentiary hearing, and the Supreme Court of Nebraska reversed in part and remanded for an evidentiary hearing. See State v. Williams, 218 Neb. 618, 358 N.W.2d 195 (1984). After the evidentiary hearing, the state district court denied relief and the Supreme Court of Nebraska affirmed. See State v. Williams, 224 Neb. 114, 396 N.W.2d 114 (1986).

II.

In 1987, Williams filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec . 2254 in the United States District Court raising numerous claims. Williams was furnished with court-appointed counsel who filed an amended petition raising 13 issues, 7 of which were later voluntarily abandoned. The case was referred to a magistrate judge for a report and recommendation. In October 1989, the magistrate judge rejected each claim as meritless, except for Williams's claim that aggravating circumstance (1)(d) is unconstitutionally vague. Aggravating circumstance (1)(d) requires a finding that "[t]he murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence." Neb.Rev.Stat. Sec. 29-2523(1)(d) (emphasis added). The magistrate judge noted that the district court had previously held in Moore v. Clarke, CV84-L-754 (D.Neb. Sept. 20, 1988) (unpublished memorandum), that the second phrase of aggravating circumstance (1)(d), the "exceptional depravity" phrase, is unconstitutionally vague.

The magistrate judge concluded that aggravating circumstance (1)(d) was unconstitutionally applied in the sentencing determination for the murder of Patricia McGarry because the use of that aggravator to impose a sentence of death for that murder was supported solely by findings relating to the constitutionally infirm second phrase. On the other hand, the death sentence imposed for the murder of Catherine Brooks properly included aggravating circumstance (1)(d) because the sentencing panel's specific finding that Catherine Brooks was sexually abused satisfies the first phrase of aggravating circumstance (1)(d) which is constitutional. However, because Moore v. Clarke was then on appeal to the Eighth Circuit and the outcome would control the analysis of this issue, the magistrate judge stayed Williams's habeas action pending a final decision in Moore. See Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992).

In Moore, over a vigorous dissent, we held that the second phrase of aggravating circumstance (1)(d), the "exceptional depravity" phrase, is unconstitutionally vague as written and as defined by the Supreme Court of Nebraska. 904 F.2d at 1228-33. While the magistrate judge was awaiting the decision in Moore, we also held in another case that regardless of the constitutionality of the second phrase, aggravating factor (1)(d) remains a valid sentencing consideration because the Supreme Court of Nebraska has appropriately limited the definition of the first phrase, the "especially heinous" phrase, rendering "that portion of the statute constitutional under Gregg v. Georgia, [428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976);] Godfrey v. Georgia, [446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality);] and Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)." Harper v. Grammer, 895 F.2d 473, 479 (8th Cir.1990).

Based upon these authorities, the magistrate judge recommended that the district court grant the writ with regard to the death sentence imposed for the murder of Patricia McGarry because that sentence relied on the unconstitutionally vague portion of aggravating circumstance (1)(d), and that the district court deny the writ in all other respects. The district court adopted the magistrate judge's report and recommendation. The district court issued its judgment granting the writ of habeas corpus for the death sentence imposed for the murder of Patricia McGarry because it was based in part upon the unconstitutional second phrase of Sec. 29-2523(1)(d); and denying the writ for the death sentence imposed for the murder of Catherine Brooks, which was supported by findings under both the constitutional first phrase and the unconstitutional second phrase.

Williams appeals the district court's denial of the writ of habeas corpus for the death sentence based upon the murder of Catherine Brooks. Williams raises essentially six issues on appeal: (1) whether the sentencing panel's application of aggravating circumstance (1)(d) renders his death sentence for the murder of Catherine Brooks unconstitutional; (2) whether Williams's confession was obtained in violation of his Miranda rights; (3) whether the Supreme Court of Nebraska's proportionality review violated the Due Process Clause; (4) whether the death penalty in Nebraska reflects geographical bias; (5) whether the sentencing panel improperly considered Williams's presentence report, which describes a prior assaultive history, in applying aggravating circumstance (1)(a); and (6) whether death by electrocution constitutes cruel and unusual punishment.

Williams did not raise the proportionality review issue before the district court or before the state courts, and we will not consider the issue for the first time in this appeal. See, e.g., Whitmore v. Avery, 26 F.3d 1426, 1429 (8th Cir.1994) (citing Warden v. Wyrick, 770 F.2d 112, 114 (8th Cir.), cert. denied, 474 U.S. 1035 , 106 S.Ct. 600, 88 L.Ed.2d 579 (1985)). Additionally, we decline to address the issues dealing with alleged geographical bias and cruel and unusual punishment because, although Williams raised them in his pro se petition before the district court, he subsequently abandoned them and they were not considered by the district court. We consider the remaining three issues in turn.

III.

The most significant issue before us is Williams's three-part challenge to the constitutionality of the sentencing panel's application of Nebraska Revised Statute Sec. 29-2523(1)(d). In Nebraska, all persons convicted of first-degree murder are eligible for the death penalty. See Neb.Rev.Stat. Secs. 28-303; 29-2520; 29-2522. Either the judge who presided at trial or a panel of three judges which must include the trial judge (unless disqualified) determines whether the sentence for a first-degree murder conviction should be life imprisonment or death. Neb.Rev.Stat. Sec. 29-2520; see Rust v. Hopkins, 984 F.2d 1486, 1493 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2950, 124 L.Ed.2d 697 (1993). The sentencing judge or panel is required to consider the statutory aggravating circumstances and to weigh them against any mitigating circumstances to determine whether the death penalty is justified. See Neb.Rev.Stat. Sec. 29-2522. Thus, Nebraska is a "weighing" state.

Aggravating circumstance (1)(d) exists if "[t]he murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence." Neb.Rev.Stat. Sec. 29-2523(1)(d) (emphasis added). The plain language of aggravating circumstance (1)(d) describes two separate components, requiring the sentencing panel to consider: (1) whether the murder was especially heinous, atrocious or cruel; or (2) whether the murder manifested exceptional depravity by ordinary standards of morality and intelligence. Aggravating circumstance (1)(d) "describes in the disjunctive two separate circumstances which may operate in conjunction with or independent of one another." State v. Moore, 210 Neb. 457, 316 N.W.2d 33, 41 (1982). However, " '[t]he two prongs are not separate factors; each of the prongs simply purports to be justification for the application of the aggravating factor.' " Harper, 895 F.2d at 479 (quoting the district court opinion, Harper v. Grammer, 654 F.Supp. 515, 540 (D.Neb.1987)).

Williams's sentencing panel found facts surrounding the murder of Catherine Brooks that support both components of aggravating circumstance (1)(d). Specifically, the panel found as follows:

The evidence establishes beyond a reasonable doubt that both murders in Count I and Count II of the Information were especially heinous, atrocious, cruel and manifested exceptional depravity by ordinary standards of morality and intelligence. The defendant killed both said victims who were defenseless and unresisting; that the commission of both of said murders by the defendant was totally and [sic] bereft of any regard for human life. The evidence further establishes that the victim Catherine M. Brooks was sexually abused by the defendant.

(Sent. Panel's Order of Sent. and Commitment at 5, June 30, 1978.) In the first sentence, the panel expressly states that both phrases of aggravating circumstance (1)(d) are satisfied. The second sentence elaborates that both victims were "defenseless and unresisting," indicating reliance on the second phrase, the "exceptional depravity" phrase, of aggravating factor (1)(d). See Moore, 904 F.2d at 1230 (citing Nebraska cases attempting to define the exceptional depravity phrase); State v. Holtan, 197 Neb. 544, 250 N.W.2d 876, 880 (defining exceptional depravity as including "unresisting victims"), cert. denied sub nom. 434 U.S. 912 , 98 S.Ct. 313, 54 L.Ed.2d 198 (1977).

The second sentence also finds that both murders were totally bereft of regard for human life, which similarly indicates reliance on the vague "exceptional depravity" phrase. See Moore, 904 F.2d at 1230 (citing Nebraska's attempts to define "exceptional depravity" as "so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life").

In the final sentence of its findings supporting the existence of aggravating circumstance (1)(d), the sentencing panel found that Williams sexually abused the victim Catherine Brooks. See State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874 (without distinguishing between the two phrases, aggravating circumstance (1)(d) "would include murders involving torture, sadism, sexual abuse"), cert. denied, 434 U.S. 912 , 98 S.Ct. 313, 54 L.Ed.2d 198 (1977). In its further findings, the sentencing panel determined that Williams had forced Brooks to disrobe before he shot her. (See Sent. Panel's Order of Commitment at 8) ("Brooks was forced by the defendant to remove her clothing and was thereafter shot by him while she was lying on the floor").

A.

Williams first contends that in Nebraska, sexual abuse traditionally has defined the unconstitutionally vague "exceptional depravity" phrase of aggravating circumstance (1)(d), not the "especially heinous" phrase. We find no support for this contention in Nebraska law, and we conclude that the argument provides no constitutional impediment to Williams's sentence.

Prior to Williams's sentencing in 1978, the Supreme Court of Nebraska had indicated that sexual abuse is an objective identifier of the existence of aggravating circumstance (1)(d) in general. See Rust, 250 N.W.2d at 874 (stating generally that aggravating circumstance (1)(d) "would include murders involving torture, sadism, sexual abuse, or the imposition of extreme suffering," but not compartmentalizing the two phrases of (1)(d)); State v. Peery, 199 Neb. 656, 261 N.W.2d 95, 104 (1977) (same) cert. denied, 439 U.S. 882 , 99 S.Ct. 220, 58 L.Ed.2d 194 (1978). In Rust, the state court cited the Supreme Court's opinion in Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), in the same discussion where the state court includes "sexual abuse" as an objective identifier of aggravating circumstance (1)(d).

The Proffitt opinion addresses a Florida aggravating circumstance that consists solely of the "especially heinous" phrase. See 428 U.S. at 255 & n. 12, 96 S.Ct. at 2968 & n. 12 (citing Florida cases where this phrase was implicated--one case includes the murder of three women, one of whom was raped). In State v. Simants, 197 Neb. 549, 250 N.W.2d 881, 891, cert. denied, 434 U.S. 878 , 98 S.Ct. 231, 54 L.Ed.2d 158 (1977), the Supreme Court of Nebraska adopted Florida's construction of the "especially heinous" phrase, defining it as "the conscienceless or pitiless crime which is unnecessarily torturous to the victim." Id. (quoting State v. Dixon, 283 So.2d 1 (Fla.1973)).

After Williams was sentenced, the Supreme Court of Nebraska, citing Rust which was decided before Williams was sentenced, stated, "[w]e have narrowed this class [the "especially heinous" phrase] to include murders involving torture, sadism, or sexual abuse." State v. Reeves, 239 Neb. 419, 476 N.W.2d 829, 838 (1991), cert. denied, --- U.S. ----, 113 S.Ct. 114, 121 L.Ed.2d 71 (1992). See also State v. Otey, 236 Neb. 915, 464 N.W.2d 352, 365 (citing Rust ), cert. denied, 501 U.S. 1201 , 111 S.Ct. 2279, 115 L.Ed.2d 965 (1991); State v. Victor, 235 Neb. 770, 457 N.W.2d 431, 443 (1990) (same), cert. denied, 498 U.S. 1127 , 111 S.Ct. 1091, 112 L.Ed.2d 1195 (1991); State v. Ryan, 233 Neb. 74, 444 N.W.2d 610, 652 (1989) (same), cert. denied, 498 U.S. 881 , 111 S.Ct. 216, 112 L.Ed.2d 176 (1990).

Although Reeves and the other cases that make a similar statement were decided after Williams was sentenced, they all rely on Rust, which was existing precedent at the time Williams was sentenced. Williams contends that this reliance is misplaced because Rust did not compartmentalize the two phrases of aggravating circumstance (1)(d). We find this argument unpersuasive. We give great deference to a state supreme court's interpretation of its own law. See Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). Rust was decided before the court recognized a need to analyze each phrase individually but this weakens neither the court's subsequent clarification nor the holding in Rust. Furthermore, we find it significant that the court in Rust expressly cited the Supreme Court's opinion in Proffitt, which was purely an "especially heinous" case.

Williams contends that the Simants case establishes clear precedent that sexual assault defines only the "exceptional depravity" phrase. We disagree. Contrary to Williams's assertion, in Simants the Nebraska Supreme Court did not explicitly cite sexual abuse as a limiting construction of either phrase in particular. Rather, the court concluded that both phrases of aggravating circumstance (1)(d) were correctly applied to the three murders that involved some degree of sexual abuse. Simants, 250 N.W.2d at 891. Thus, Williams's reliance on Simants for the proposition that sexual abuse only satisfies the "exceptional depravity" phrase is misplaced.

We conclude that sexual abuse was an objective element that satisfied and appropriately limited the definition of aggravating circumstance (1)(d) under the law of Nebraska at the time Williams was sentenced. We are further satisfied that a finding of sexual abuse is an objective factor that appropriately and constitutionally narrows the definition of the "especially heinous" phrase. Thus, the sentencing panel's finding that Williams's sexual abuse of Catherine Brooks satisfies aggravating circumstance (1)(d) cannot be successfully attacked as unconstitutional.

B.

Williams contends that even if the sentencing panel's finding of sexual abuse is considered a finding under the constitutionally valid "especially heinous" phrase, Nebraska law requires specific findings on the record indicating that the victim was alive and conscious at the time of the assault in order for sexual abuse to be considered as an aggravating circumstance. Williams relies on State v. Hunt, 220 Neb. 707, 371 N.W.2d 708, 721 (1985), where the Supreme Court of Nebraska in 1985 held that aggravating circumstance (1)(d) did not exist where the sexual acts were practiced on a woman who was dead or unconscious at the time. Williams contends that the record in this case contains no findings that the sexual abuse occurred upon a living or conscious victim, and therefore the sexual abuse finding does not establish aggravating circumstance (1)(d). We disagree.

We first note that Hunt was decided subsequent to Williams's sentencing. Prior to Williams's sentencing, no such requirement had been articulated. For example, in Simants, where the defendant sexually abused three murder victims both prior to and after death, the Supreme Court of Nebraska found that both phrases of aggravating circumstance (1)(d) were satisfied, without distinction between sexual abuse of the living and sexual abuse after death. 250 N.W.2d at 891. In Peery, the court expressly stated that "an attack on a body after death may be considered in evaluating the existence of this circumstance." 261 N.W.2d at 105 (discussing aggravating circumstance (1)(d)). Second, and more importantly, the jury convicted Williams of sexual assault with regard to Catherine Brooks. That sexual assault conviction conclusively shows that the jury believed that the crime was perpetrated on a living victim. See Neb.Rev.Stat. Sec. 28-319.

In any event, this discussion of state law is of little significance. "[T]he question to be decided by a federal court on petition for habeas corpus is not whether the state sentencer committed state-law error in relying on an adequately narrowed aggravating factor. Rather, the federal, constitutional question is whether such reliance is so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation." Richmond v. Lewis, --- U.S. ----, ----, 113 S.Ct. 528, 536, 121 L.Ed.2d 411 (1992) (citation and internal quotation omitted); see also Bolender v. Singletary, 16 F.3d 1547, 1570-71 (11th Cir.1994) ("federal courts do not sit to revisit a state supreme court's judgment as to whether the trial court complied with state law ... to the extent that death penalty proceedings do not produce an arbitrary or discriminatory result, the Constitution is not violated, and we will not second-guess the state courts on a matter of state law"), cert. denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994) (No. 94-6189).

The Supreme Court of Nebraska has appropriately narrowed the construction of the "especially heinous" phrase by objective standards, including sexual abuse, and the sentencing panel made an explicit finding under aggravating circumstance (1)(d) that Catherine Brooks was sexually abused. That finding is presumed to be correct in this federal habeas proceeding. 28 U.S.C. Sec . 2254(d). This objective finding is sufficient to satisfy us that no constitutional error occurred.

C.

Williams next contends that because the sentencing panel considered both the constitutionally valid phrase and the unconstitutionally vague phrase of aggravating circumstance (1)(d), the death sentence imposed upon him for the murder of Catherine Brooks is unconstitutional. Williams argues that because of this constitutional error, the writ should issue to permit the state appellate court to decide whether to reweigh the aggravating and mitigating circumstances, to examine the sentence for constitutional harmless error, or to remand to the sentencing panel for resentencing. We conclude that habeas relief is not required in this case because the error is harmless beyond a reasonable doubt.

As previously noted, Nebraska is a "weighing state"--a state in which the sentencer must determine that sufficient aggravating circumstances exist to outweigh any mitigating factors in order to justify imposing the death penalty. See Neb.Rev.Stat. Sec. 29-2522. See also Stringer v. Black, --- U.S. ----, ----, 112 S.Ct. 1130, 1136, 117 L.Ed.2d 367 (1992) (describing Mississippi as a "weighing" state because after finding the existence of at least one statutory aggravating factor, the jury "must weigh the aggravating factor or factors against the mitigating evidence"); Simants, 250 N.W.2d at 893 ("the test is whether the aggravating circumstances in comparison outweigh the mitigating circumstances"). In a weighing state, it is now settled that "there is Eighth Amendment error when the sentencer weighs an 'invalid' aggravating circumstance in reaching the ultimate decision to impose a death sentence." Sochor v. Florida, --- U.S. ----, ----, 112 S.Ct. 2114, 2119, 119 L.Ed.2d 326 (1992) (citing Clemons v. Mississippi, 494 U.S. 738, 752, 110 S.Ct. 1441, 1450, 108 L.Ed.2d 725 (1990)).

Allowing the sentencer to consider "a vague aggravating factor in the weighing process creates the possibility not only of randomness but also of bias in favor of the death penalty." Stringer, --- U.S. ----, 112 S.Ct. at 1139. The overriding objective of a vagueness challenge is to ensure that the state provides a process that is "neutral and principled so as to guard against bias or caprice in the sentencing decision." Tuilaepa v. California, --- U.S. ----, ----, 114 S.Ct. 2630, 2635, 129 L.Ed.2d 750 (1994) (citing Gregg, 428 U.S. at 189, 96 S.Ct. at 2932). "But when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence." Stringer, --- U.S. at ----, 112 S.Ct. at 1137.

The previous sections in this opinion indicate that the sentencing panel actually considered and made findings under both the constitutionally limited "especially heinous" phrase and the unconstitutionally vague "exceptional depravity" phrase of aggravating circumstance (1)(d) when deciding whether or not aggravating circumstance (1)(d) was present in the case.4 Even though the existence of aggravating circumstance (1)(d) is constitutionally supported here, Williams's death sentence for the murder of Catherine Brooks is partially tainted by constitutional error. See Sochor, --- U.S. at ----, 112 S.Ct. at 2119; Clemons, 494 U.S. at 752, 110 S.Ct. at 1450.

Finding constitutional error, however, does not end the inquiry. Our next consideration is whether the error warrants federal habeas corpus relief. "[N]ot all constitutional violations amount to reversible error." Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988). Certain constitutional errors are subject to harmless error review. See Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967); Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994) (No. 94-470). The Supreme Court has indicated that capital sentencing error resulting from the consideration of an invalid, constitutionally vague aggravating circumstance is subject to constitutional harmless error review. See Richmond, --- U.S. at ----, 113 S.Ct. at 535; Sochor, --- U.S. at ----, 112 S.Ct. at 2119; Stringer, --- U.S. at ----, 112 S.Ct. at 1136; Clemons, 494 U.S. at 752, 110 S.Ct. at 1450.

In Clemons, the Supreme Court expressly authorized the state appellate court to uphold a death sentence imposed in part upon consideration of a vague aggravating circumstance by either reweighing the aggravating and mitigating evidence or engaging in a harmless error review pursuant as set forth in Chapman. Clemons, 494 U.S. at 741-54, 110 S.Ct. at 1444. Williams contends that although the Supreme Court has authorized constitutional harmless error analysis, the Clemons decision authorized only the state appellate court to perform the analysis in the first instance. Thus, the issue before us is whether we have authority to conduct the constitutional harmless error inquiry in the first instance or whether we must grant the writ to allow the Nebraska courts to engage in the inquiry.

Currently, the Supreme Court has neither explicitly authorized federal habeas courts to engage in the constitutional harmless error analysis that the Court authorized for capital sentencing proceedings in Clemons nor has the Court foreclosed us from engaging in the analysis. The Supreme Court opinions that authorize the harmless error review to remedy constitutional error resulting from the consideration of a vague sentencing factor expressly refer only to state appellate courts. See, e.g., Richmond, --- U.S. at ----, 113 S.Ct. at 535 ("[O]nly constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence. Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state appellate court or some other state sentencer must actually perform a new sentencing calculus, if the sentence is to stand"); Stringer, --- U.S. at ----, 112 S.Ct. at 1140 ("use of a vague or imprecise aggravating factor in the weighing process invalidates the sentence and at the very least requires constitutional harmless-error analysis or reweighing in the state judicial system"). But see Smith v. Dixon, 14 F.3d 956, 978 (4th Cir.1994) (en banc) ("the better reading of this passage is that 'in the state judicial system' modifies only 'reweighing'--just as 'constitutional' modifies only 'harmless-error analysis' ") (quoting Stringer, --- U.S. at ----, 112 S.Ct. at 1140), cert. denied, --- U.S. ----, 115 S.Ct. 129, 130 L.Ed.2d 72 (1994) (No. 93-9353).

The language used in these cases provides no guidance as to the role of the federal habeas court in addressing the question of harmlessness in this context.5 In authorizing state appellate courts to either reweigh the aggravating and mitigating circumstances or to engage in a constitutional harmless error analysis, the Court has in no way forbidden federal habeas courts from engaging in their usual constitutional harmless error analysis.

In prior cases, the Supreme Court itself has applied harmless error analysis "in the first instance," although its usual practice is to reverse and remand for a determination of harmlessness. Yates v. Evatt, 500 U.S. 391, 407, 111 S.Ct. 1884, 1895, 114 L.Ed.2d 432 (1991) (citing Rose v. Clark, 478 U.S. 570, 584, 106 S.Ct. 3101, 3109, 92 L.Ed.2d 460 (1986)). In Rose, the Court remanded a section 2254 habeas case to allow the federal court of appeals to determine harmless error under Chapman in the first instance. 478 U.S. at 584. We not only have the authority to consider constitutional harmlessness in the first instance, but we have the responsibility to do so and to grant the writ only after examining the entire record to determine that the constitutional error was not harmless. See Rose, 478 U.S. at 576, 106 S.Ct. at 3105.

Absent any Supreme Court authority to the contrary (and we see no contrary principle arising from the Clemons line of cases cited above), we believe that we are authorized to engage in constitutional harmless error analysis in the first instance when a state sentencer has considered an unconstitutionally vague portion of an aggravating circumstance.

The Fourth Circuit sitting en banc recently decided, in an alternate holding, that federal courts considering a habeas corpus petition pursuant to 28 U.S.C. Sec . 2254 must review constitutional errors of the state trial and sentencing proceedings for harmlessness, even error resulting from the sentencer's consideration of an invalid aggravating factor. See Smith, 14 F.3d at 975 (alternate holding; court first concluded that the issue was procedurally barred).

The Fourth Circuit in Smith squarely confronted a situation where the state appellate court had neither reweighed the aggravating and mitigating factors absent the vague factor nor applied a harmless error analysis. 14 F.3d at 974. The Smith opinion provides a very thorough analysis of this issue and it is consistent with the reasoning we outlined above. See id. at 974-79. We agree with the Fourth Circuit's conclusion that federal courts of appeals "are adequately equipped to conduct [the harmless error analysis]" in the first instance. Id. at 979.

We also agree with the Fourth Circuit's analysis of the role that concepts of comity and federalism play in determining whether or not we are authorized to conduct a harmless error analysis in this case.

As stressed in Brecht [v. Abrahamson, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ], " 'Federal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.' " Brecht, [---] U.S. at [----], 113 S.Ct. at 1720 (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982)). Thus, before overturning final and presumptively correct state convictions or sentences on habeas review, federal courts must assess for harmlessness those errors that are eligible for this review in order to assure that the extraordinary relief provided by the writ is granted only to those " 'persons whom society has grievously wronged.' " Brecht, [---] U.S. at [----], 113 S.Ct. at 1719 (quoting Fay v. Noia, 372 U.S. 391, 441, 83 S.Ct. 822, 850, 9 L.Ed.2d 837 (1963)).

Id. at 976.

We disagree with the Smith court only to the extent that it failed to employ the Chapman harmless error standard which requires that constitutional error must be harmless beyond a reasonable doubt. The Supreme Court in Clemons authorized state appellate courts to engage in a Chapman harmless error analysis. We acknowledge that this standard is usually applied in direct appeals. See Starr, 23 F.3d at 1292. In federal habeas review, this circuit generally applies the less onerous Brecht standard, applied by the Fourth Circuit in Smith, which considers whether the error "had substantial or injurious effect or influence in determining the jury's verdict." Brecht, --- U.S. at ----, 113 S.Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). See also Starr, 23 F.3d at 1292.

However, in a federal habeas review where the state trial or appellate court found no constitutional error and thus had no reason to consider harmlessness, we apply the Chapman analysis to determine if the constitutional error that we have identified requires habeas relief. See Starr, 23 F.3d at 1292. This is precisely the posture of the case before us; the state court found no constitutional error and therefore never had occasion to apply the Chapman standard. Consequently, we apply the Chapman harmless error standard in the first instance and consider whether the constitutional error in this case is harmless beyond a reasonable doubt.

To determine whether constitutional error is harmless beyond a reasonable doubt, we review the record de novo. Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991). " 'The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.' " DeVine v. Solem, 815 F.2d 1205, 1208 (8th Cir.1987) (quoting Chapman, 386 U.S. at 23, 87 S.Ct. at 827). We recognize the heavy burden the state bears in proving that a constitutional error is harmless beyond a reasonable doubt. See id. "A finding that the evidence is sufficient to support the conviction [in this case, to support the decision to impose the death penalty] is not dispositive of the question of harmless error." Id.; see also Yates, 500 U.S. at 404, 111 S.Ct. at 1893.

Rather, the issue under Chapman is whether the sentencer actually rested its decision to impose the death penalty on the valid evidence and the constitutional aggravating factors, independently of the vague factor considered; in other words, whether what was actually and properly considered in the decision-making process was "so overwhelming" that the decision would have been the same even absent the invalid factor. See Yates, 500 U.S. at 404-05, 111 S.Ct. at 1893-94 (discussing an erroneous presumption given in jury instructions).

In this case, the sentencing panel actually considered and made some findings implicating the unconstitutionally vague phrase of aggravating circumstance (1)(d). We conclude, however, that the remaining appropriate and valid considerations are so overwhelming that it is beyond a reasonable doubt that the sentencing decision would have been the same, even absent consideration of the invalid phrase of aggravating circumstance (1)(d).

The record supports the sentencing panel's finding that Williams sexually abused Catherine Brooks. The evidence revealed that spermatozoa was found in Catherine Brooks's vagina and rectal tract, and the jury convicted Williams of first-degree sexual assault. The sexual abuse finding is a constitutionally objective factor that independently supported the sentencing panel's use and consideration of aggravating circumstance (1)(d). Even absent consideration of the unconstitutionally vague "exceptional depravity" phrase, the sentencing panel still would have had four constitutionally valid aggravating circumstances to consider in the balance, including aggravating circumstance (1)(d).

To the contrary, in Moore (and in Williams's death sentence for the murder of Patricia McGarry), the sentencing panel's findings under aggravating circumstance (1)(d) implicated only the unconstitutionally vague second phrase. 904 F.2d at 1229. In that situation, absent consideration of the invalid phrase, aggravating circumstance (1)(d) was not established and the balance of aggravating circumstances was clearly altered. In considering the death sentence for the murder of Catherine Brooks, the sentencing panel did no more than make findings that independently supported both the constitutional and the unconstitutional portions of one aggravating circumstance. There is full and ample factual support for the panel's conclusion that Williams's conduct was aggravated because his sexual abuse of Catherine Brooks made his crime of murder "especially heinous, atrocious, cruel."

The sentencing panel did not explicitly rely more heavily on the unconstitutional "exceptional depravity" phrase than on the constitutional phrase. Thus, we note initially that the error in this case is not as egregious as error where the sentencer considers an aggravating circumstance that would not otherwise have been established or not considered at all, or that was based upon false or inaccurate evidence. See Johnson v. Mississippi, 486 U.S. 578, 590, 108 S.Ct. 1981, 1988, 100 L.Ed.2d 575 (1988).

The sentencing panel considered three other valid aggravating factors in addition to aggravating circumstance (1)(d). Aggravating circumstance (1)(a) included findings that Williams has a history of violent behavior. In 1964, Williams was convicted of third-degree robbery which included a threat of violence to the victim. Also, as recently as six days before the murders of Catherine Brooks and Patricia McGarry, Williams kidnapped and assaulted his ex-wife. Williams took his ex-wife to a park in Lincoln, Nebraska, "where, after slashing [her] head with a knife and threatening to 'ram' the knife in her ear, Williams 'raped' [her]." Williams, 396 N.W.2d at 117. He was released from custody on August 10, the day before Patricia McGarry and Catherine Brooks were murdered.

Under aggravating circumstance (1)(b), the sentencing panel found that Williams murdered Catherine Brooks in an apparent attempt to conceal his identity. Aggravating circumstance (1)(e), also found by the panel to be present, allowed the sentencing panel to consider the fact that both murders occurred at about the same time. When the Supreme Court of Nebraska considered the proportionality of Williams's sentence in 1979, it noted that this was the only case then pending that involved multiple first-degree murders. See Williams, 287 N.W.2d at 29.

We recognize that "[t]here is no arithmetical computation or formula required in a court's consideration of aggravating and mitigating circumstances under Sec. 29-2523." State v. Palmer, 224 Neb. 282, 399 N.W.2d 706, 729 (1986). The weighing process in Nebraska is not a mere counting up of aggravating factors but requires a careful examination and weighing of the factors given the totality of the circumstances. Reeves, 476 N.W.2d at 838; Stewart, 250 N.W.2d at 862-63. Nevertheless, the overwhelming force of the evidence properly considered and relied upon by the sentencing panel in this case convinces us beyond a reasonable doubt that the sentencing panel's improper inclusion of the unconstitutionally vague phrase of aggravating circumstance (1)(d) did not alter the balance.6 We are convinced beyond a reasonable doubt that Williams's sentence would have been the same even absent the constitutional error.

IV.

Williams also contends that the district court erred in not holding an evidentiary hearing to allow him to demonstrate that his confession was illegally obtained. He contends that an evidentiary hearing is required in order for the district court to engage in an independent determination of the voluntariness of his confession. We disagree.

When a habeas petitioner challenges the voluntariness of his confession, the district court must conduct an independent review to determine whether the confession was voluntary, giving substantial deference to the state court's determination of the facts. See Miller v. Fenton, 474 U.S. 104, 117, 106 S.Ct. 445, 453, 88 L.Ed.2d 405 (1985) ("state-court findings on such matters are conclusive on the habeas court if fairly supported in the record"); Woods v. Armontrout, 787 F.2d 310, 313 (8th Cir.1985), cert. denied, 479 U.S. 1036 , 107 S.Ct. 890, 93 L.Ed.2d 842 (1987). See also 28 U.S.C. Sec . 2254(d) (facts determined by state court are entitled to a presumption of correctness). A habeas corpus petitioner is entitled to an evidentiary hearing on the allegations contained in the petition if:

  (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the statecourt [sic] hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

Warden v. Wyrick, 770 F.2d 112, 117 (8th Cir.1985). When the facts have not been sufficiently developed in the state court, a petitioner "is entitled to an evidentiary hearing to introduce additional evidence [only] 'if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure.' " Stewart v. Nix, 31 F.3d 741, 743 (8th Cir.1994) (quoting Keeney v. Tamayo-Reyes, --- U.S. ----, ----, 112 S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992)).

Williams asserts that he was entitled to an evidentiary hearing because his original pro se petition alleged facts supporting his contention that his confession was coerced. Williams's original pro se petition included a statement of his version of the facts surrounding the interrogation. Williams contends that this statement demonstrates coercion and that it was overlooked by the magistrate judge and the district court. The statement to which Williams refers, in our view, indicates nothing more than that Williams disagrees with the state court's findings of fact.

Williams alleges no substantial newly discovered evidence and no issue that the state court left unresolved. He does not contend that he did not have an opportunity to fully develop the record before the trial court, and he does not complain that the trial court procedures deprived him of a full and fair hearing. Williams's pro se statement of his version of the facts does not present grounds for requiring an evidentiary hearing in the district court.

Williams also asserts that he was entitled to an evidentiary hearing because the state court did not specifically make a finding on whether or not he requested counsel. Williams's amended petition requested an evidentiary hearing "to demonstrate that Petitioner requested to consult an attorney prior to any questioning but was denied his right to consult an attorney." (Appellant's App. at 31.)

This statement does not make a sufficient showing to entitle Williams to an evidentiary hearing on any of the grounds listed above. Contrary to Williams's assertion, the state court was not required to make a specific finding that he did or did not request counsel prior to questioning as long as the conclusion that the confession was voluntary is in the record "with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967).

The state court found with unmistakable clarity that Williams's confession was given voluntarily. The state supreme court affirmed this finding as supported by the record, crediting the testimony of two officers who testified that they read Williams his Miranda rights before he gave the confession and that Williams did not request a lawyer. Williams, 287 N.W.2d at 26. We conclude that "implicit in the trial court's determination that [Williams] made his confession voluntarily is a finding that the police officers did not induce the confession by either coercion or promises," Woods, 787 F.2d at 315, and that Williams did not request an attorney prior to questioning. Accordingly, we conclude that the district court did not err by refusing to hold an evidentiary hearing.

V.

Williams contends that his three-judge sentencing panel improperly used the presentence report prepared for his case, that the federal district court erred by failing to sua sponte expand the record to include the presentence report,7 and that the question of whether aggravating factor (1)(a)8 applies cannot be properly resolved without the presentence report. This contention is without merit. Williams contends that he has raised "serious constitutional issues" regarding the use of the presentence report, (Appellant's Br. at 24), but his brief fails to articulate any constitutional violation resulting from the sentencing panel's use of or reliance on the presentence report. Absent a federal constitutional violation, a federal habeas petitioner is not entitled to relief. See Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984).

We have, however, carefully reviewed the magistrate judge's report and recommendation concerning the appellant's contentions that the use of his presentence report by the sentencing panel violated his "right to confront witnesses, right to be represented by counsel, and right against self-incrimination as guaranteed by the Fifth, Sixth, and Fourteenth Amendments." (Appellant's Addend. at A10.)

The district court adopted the magistrate judge's report without elaboration except to note, as we have concerning this portion of the appeal itself, that the appellant offered no authorities to the magistrate judge on the alleged issues and offered no authorities to the district court. Nevertheless, the magistrate judge surveyed the law with respect to whether the constitutional right of confrontation attaches at a sentencing hearing, reviewed carefully the state court record which shows that the appellant and his counsel had adequate access to the presentence report; that the appellant's counsel objected to any use of the presentence report in general and to portions of the presentence report in particular, and concluded that the appellant had failed to show how the sentencing panel had failed to provide him with an adequate opportunity to contest and rebut the information contained in the report. The magistrate judge also concluded that the appellant had made no showing that any information relied upon by the sentencing panel was false or could have been shown to be false by the cross-examination of witnesses. The district court committed no error in adopting the magistrate judge's recommendation that this claim should provide no habeas relief to the appellant.

VI.

In conclusion, we affirm the judgment of the district court denying Williams a writ of habeas corpus with regard to the death sentence imposed upon him for murdering Catherine Brooks.

*****

FLOYD R. GIBSON, Senior Circuit Judge, concurring.

I concur in the result reached by the majority. However, I write separately because I continue to question whether the phrase "exceptional depravity by ordinary standards of morality and intelligence," Neb.Rev.Stat. Sec. 29-2523(1)(d) (Reissue 1985), is unconstitutionally vague. Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990) (Gibson, Floyd R., dissenting), reh'g denied, 951 F.2d 895 (1991), cert. denied, --- U.S. ----, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992).

Prior to the Moore decision, the Nebraska Supreme Court had defined "exceptional depravity" on several occasions as "so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life." State v. Rust, 197 Neb. 528, 250 N.W.2d 867, 874, cert. denied, 434 U.S. 912 , 98 S.Ct. 313, 54 L.Ed.2d 198 (1977); see State v. Stewart, 197 Neb. 497, 250 N.W.2d 849, 864 (1977), cert. denied, --- U.S. ----, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993); State v. Holtan, 197 Neb. 544, 250 N.W.2d 876, 880, cert. denied, 434 U.S. 912 , 98 S.Ct. 313, 54 L.Ed.2d 198 (1977). The Nebraska Supreme Court also acknowledged that "[i]t might be argued that every murder involves depravity. The use of the word 'exceptional,' however, confines it only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence." State v. Simants, 197 Neb. 549, 250 N.W.2d 881, 891, cert. denied, 434 U.S. 878 , 98 S.Ct. 231, 54 L.Ed.2d 158 (1977). In my opinion, these explanations provide sufficient guidance to the sentencing body considering the death penalty and serve to "eliminat[e] total arbitrariness and capriciousness in its imposition." Proffitt v. Florida, 428 U.S. 242 , 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976).

As noted, the Nebraska Supreme Court interpreted the phrase "exceptional depravity" as applying "only to those situations where depravity is apparent to such an extent as to obviously offend all standards of morality and intelligence." Simants, 250 N.W.2d at 891. If the uncalled-for, premeditated, brutal killings of the two unresisting young women9 in this case do not "obviously offend all standards of morality and intelligence," then I do not know what would or what more would be necessary.

I do not think it within the province of the federal courts to be creating escape-hatches for vicious criminals by using semantics to mask the actual, raw facts--in this case, the taking of two innocent lives to satisfy a murderer's sexual cravings and his desire to eliminate possible witnesses. These atrocious acts certainly exhibit "exceptional depravity" in the true sense and meaning of those words. The argument that the sexual assault might have occurred upon a dead young woman instead of when this young woman was unconscious or badly beaten in the throes of death should not be considered as an excuse for this despicable conduct. Williams' total and senseless disregard for human life is apparent; we should not have to deal with the semantic, convoluted arguments such as those made by the defendant in this case. These arguments serve to denigrate the law and give a hollow meaning to the term "justice."

To my mind, the brutal killings that Williams committed exhibit exceptional depravity by any fair meaning of those words, and the Nebraska sentencing panel committed no error in this case. I would agree, however, that if Williams' claim of error is recognized, then it is harmless beyond a reasonable doubt. Williams' heinous and depraved criminal acts call for the imposition of the supreme penalty.

*****

* Amended Order filed March 17, 1995. Chief Judge Arnold would grant the suggestion for rehearing en banc and would grant a stay of execution of a sentence of death. Judge Loken did not participate in the voting of the suggestion for rehearing en banc

1 The Honorable Lyle E. Strom, then Chief Judge, United States District Court for the District of Nebraska, adopting the report and recommendation of the Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska

2 Section 29-2523 provides as follows:

The aggravating and mitigating circumstances referred to in sections 29-2521 and 29-2522 shall be as follows:

  (1) Aggravating Circumstances:

  (a) 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;

  (b) The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime;

  (c) The murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant;

  (d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence;

  (e) At the time the murder was committed, the offender also committed another murder;

  (f) The offender knowingly created a great risk of death to at least several persons;

  (g) The victim was a law enforcement officer or a public servant having custody of the offender or another; or

  (h) The crime was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws.

  (2) Mitigating Circumstances:

  (a) The offender has no significant history of prior criminal activity;

  (b) The offender acted under unusual pressures or influences or under the domination of another person;

  (c) The crime was committed while the offender was under the influence of extreme mental or emotional disturbance;

  (d) The age of the defendant at the time of the crime;

  (e) The offender was an accomplice in the crime committed by another person and his participation was relatively minor;

  (f) The victim was a participant in the defendant's conduct or consented to the act; or

  (g) At the time of the crime, the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental illness, mental defect, or intoxication.

3 The sentencing panel did not consider Williams's subsequent acts of violence in Iowa and Minnesota. See State v. Williams, 217 Neb. 539, 352 N.W.2d 538, 540-41 (1984) ("sentencing court sustained Williams' objection to the use of his 66-page statement concerning Williams' violent activities in Iowa and Minnesota after the murders and sexual assault in Nebraska")

4 The sentencing panel's findings with respect to aggravating circumstance (1)(d) relating to the murder of Patricia McGarry satisfied only the unconstitutional "exceptional depravity" phrase

5 The Supreme Court cases thus far have arisen either in the context of a direct appeal from a state appellate court where the Court naturally is explaining what avenues of analysis are available to the state appellate courts, see Clemons, 494 U.S. at 741, 110 S.Ct. at 1444; Sochor, --- U.S. at ----, 112 S.Ct. at 2117; or in the context of a habeas action where harmlessness was not at issue, see Stringer, --- U.S. at ----, 112 S.Ct. at 1140 (at issue was whether a federal habeas petitioner sentenced before Clemons could rely on the principle set forth therein); Richmond, --- U.S. at ----, 113 S.Ct. at 535 (respondent did not claim that the error was harmless; only the reweighing process was at issue)

6 Williams contends that the Supreme Court of Nebraska relied heavily upon the unconstitutional "exceptional depravity" phrase, thus preventing a finding of constitutional harmlessness. We disagree. The state supreme court, in performing its proportionality review, concluded that "[i]f sufficient aggravating circumstances existed in those cases to justify the imposition of the death penalty, then the merciless, callous murder of two defenseless women in this case provided ample justification for the death penalty here." Williams, 287 N.W.2d at 30. Williams, however, takes this statement out of context. The court was performing a proportionality review. The proportionality review is not identical to a reweighing of the aggravating and mitigating factors, which the court did not engage in. We look to what the sentencing panel actually relied upon in performing our harmless error review. We noted, supra, that Williams failed to raise his proportionality claim in any prior proceeding

7 Williams himself made no offer of his presentence report

8 Aggravating factor (1)(a) provides as follows: "The offender was previously convicted of ... a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity." Neb.Rev.Stat. 29-2523(1)(a). The sentencing panel found that Williams had been convicted of a felony of third degree robbery involving the threat of violence, in New York in 1964; and that the defendant has a substantial history of serious assaultive criminal activity evidenced less than a week before the commission of the murders and sexual assault in this case

9 Although the State did not appeal the district court's granting of the writ of habeas corpus for the murder of Patricia McGarry, I believe that both of these murders demonstrate heinousness and exceptional depravity and warrant the imposition of the death penalty

No. S-96-266.

Filed September 12, 1997.

Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge. Affirmed.

1. Postconviction: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

2. Postconviction: Appeal and Error. On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous.

3. Judgments: Appeal and Error. Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court.

4. Courts: Appeal and Error. When a cause is remanded with specific directions, the court to which the mandate is directed has no power to do anything but to obey the mandate. The order of the appellate court is conclusive on the parties, and no judgment or order different from, or in addition to, that directed by the appellate court can be entered by the trial court.

5. Evidence: Records: Appeal and Error. A bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a part of the bill of exceptions may not be considered.

6. Rules of Evidence: Juries. The underlying policies in support of Neb. Evid. R. 606(2), Neb. Rev. Stat. § 27-606(2) (Reissue 1995), are so vital to the preservation of the jury system and so basic to the interest of justice that the courts of this state must be able to apply the rule sua sponte.

7. Motions for New Trial: Juror Misconduct: Proof. In order for a new trial to be granted because of a juror's use of extraneous information, the party claiming the misconduct has the burden to show by a preponderance of the evidence that prejudice has occurred.

8. Jury Misconduct: Proof. Extraneous material or information considered by a jury may be deemed prejudicial without proof of actual prejudice if the material or information relates to an issue submitted to the jury and there is a reasonable possibility that the extraneous material or information affected the verdict to the detriment of a litigant.

9. Jury Misconduct. The question of whether prejudice resulted from jury misconduct must be resolved by the trial court's drawing reasonable inferences as to the effect of the extraneous information on an average juror.

10. Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that assigned by the trial court, an appellate court will affirm.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. CONNOLLY, J.

Robert E. Williams appeals the Lancaster County District Court's denial of his motion for postconviction relief under Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 1995). We are asked to determine whether Williams was denied a fair trial because a juror used maps to check Williams' postshooting "flight path" and testified that she factored this extraneous information into her predeliberation consideration of Williams' drug-and/or alcohol-induced insanity defense.

We conclude that the district court did not err in not considering the juror's testimony or in its finding that Williams was not prejudiced by the juror's use of the maps. Accordingly, we affirm the district court's denial of Williams' motion for postconviction relief.

Sometime between 10:30 a.m. on August 10, and 1:30 a.m. on August 11, 1977, Williams shot and killed Patricia A. McGarry and sexually assaulted and killed Catherine M. Brooks in a Lincoln, Nebraska, apartment. Brooks' naked body was found with two bullet wounds behind her left ear and one in her back. Later medical examinations revealed spermatozoa in her vaginal and rectal tracts. McGarry was shot three times, once under her right ear and twice in her neck.

On August 11, at approximately 1:30 a.m., Williams drove to the Lincoln residence of George Ellis, an acquaintance. Ellis testified that Williams stayed at his residence for approximately 45 to 50 minutes and that he observed nothing out of the ordinary about Williams. Williams then went home and slept. Between 9:30 and 9:45 a.m., Williams drove to the Lincoln residence of a woman who was an acquaintance. Williams entered the woman's residence under false pretenses and remained there until approximately 4 p.m. While Williams was in the woman's residence, he sexually assaulted her on numerous occasions, physically assaulted her with a handgun, slept, and had her prepare him two meals. Other than for the physical and sexual assaults, the woman described Williams' demeanor and physical characteristics as being normal.

At approximately 5 p.m., Williams was observed with his car at a gas station in Fremont, Nebraska. Fremont was described at trial as being north of Lincoln. At the gas station, Williams was seen by two people, each of whom did not notice anything unusual in his mannerisms or conduct.

At 10:15 p.m., a deputy sheriff of Cherokee City, Iowa, which is located approximately 140 miles northeast of Omaha, Nebraska, observed Williams' car abandoned and the motor running in a county park known as Martin's Access. Sometime between 11:30 p.m. on August 11, and 6 a.m. on August 12, a car and two blankets belonging to Jack and Mary Ann Montgomery were stolen from their farm. Martin's Access is on the same highway as the Montgomery farm, and the distance between the two is 1 ½ miles by road and less than 1 mile cross-country. Williams' checkbook was found in the Montgomery driveway. The Montgomery car was discovered abandoned in a ditch at 10 a.m. on August 12, 1 mile east of Cornell, Iowa. Cornell is approximately 20 miles northeast of the Montgomery farm.

Around 7:15 a.m. on August 12, Elbert Bredvick saw Williams approaching his farmyard, which is approximately 5 miles southwest of where the Montgomery car was discovered. Williams had two blankets rolled on his back, said he was lost, and asked for directions to the closest town. Bredvick observed nothing unusual about Williams and described him as "perfectly normal." Bredvick directed Williams west to Sioux Rapids, Iowa.

At approximately 12:20 p.m. on August 12, Wayne Rowe discovered his wife's naked dead body in their farmhouse. She had been shot in her side and back with a shotgun and in her neck with a .22-caliber bullet. Later examination established that Rowe's wife had also been sexually assaulted.

The Rowe farmhouse is located approximately one-half mile west of the Bredvick farmhouse down the same road which Bredvick directed Williams. The Rowes' car was missing and was later discovered in St. Paul, Minnesota. The blankets which Bredvick had seen in Williams' possession were found on the Rowes' property. On August 13, at around 1:30 p.m., Walter Behun was working in his yard in Fridley, Minnesota, a suburb of St. Paul, when he saw Williams pointing a gun at him. Williams abducted Behun and had Behun drive him to St. Paul. Behun drove Williams to a railroad freight yard, where Behun was left bound in a caboose. Williams took Behun's car, which was later found in the Como Avenue and Dale Avenue area in St. Paul. Except for pointing a gun at him and abducting him, Behun observed Williams to be normal.

At approximately 3 p.m. on August 13, Katherine Billings was leaving a liquor store at the intersection of Como Avenue and Dale Avenue in St. Paul, when she was kidnapped by Williams. Prior to driving away with Billings in her car, Williams shot her in the arm and behind her left ear. Billings was taken to a secluded rural area where she was sexually assaulted, bound, and left for dead.

On August 14, Williams arrived by car in Chicago, Illinois. He stayed in Chicago until late August 17, when he jumped on a train heading west. He arrived in Lincoln either late on August 17 or early on August 18 and was arrested at 4 a.m. on August 18, 1977.

Williams was charged with two counts of first degree murder for the killings of McGarry and Brooks and with the first degree sexual assault of Brooks. Williams confessed to the killings but pled not guilty by reason of insanity or mental derangement. Jury instruction No. 9 stated:

The defendant contends that he was insane or mentally deranged at the time he is alleged to have committed the offenses charged in the Information. Insanity is a defense recognized by law and the evidence relating thereto should be considered by you and weighed the same as any other evidence.

The burden is upon the State to establish the fact of defendant's sanity beyond a reasonable doubt.

If from all of the evidence you are convinced beyond a reasonable doubt that the defendant committed the act or acts charged and that at the time of the commission of the alleged crime he was of sufficient mental capacity:

1. To understand what he was doing and the nature and quality of his act;

2. To distinguish between right and wrong with respect to it; and

3. To know that such act was wrong and deserved punishment,

then the defendant would be legally responsible for his acts and you should return a verdict of "guilty," although you might find that at the time he was suffering from some degree of insanity or impairment of the mind.

If from the evidence or lack of evidence in this case a reasonable doubt is raised in your minds as to the defendant's mental capacity at the time of the commission of the alleged crime:

1. To understand what he was doing and the nature and quality of his act; or

2. To distinguish between right and wrong with respect to it; or

3. To know that such act was wrong and deserved punishment,

it is your duty to find the defendant "not guilty by reason of insanity."

This instruction did not require the jury to find that Williams was suffering from a mental disease (defect, disorder) at the time of the shootings in order to find that he was insane. Two psychiatrists, Emmet N. Kenney, M.D., and John Baldwin, M.D., testified for the State that although Williams suffered from a personality disorder, he was not insane at the time of the shootings. More specifically, both of the State's psychiatrists testified that at the time of the shootings, Williams had sufficient mental capacity (1) to understand what he was doing, (2) to understand the nature and quality of his acts, (3) to distinguish between right and wrong with respect to his acts, (4) to know that his acts were wrong and deserved punishment, and (5) to turn over in his mind his acts before doing them.

Two psychiatrists, Beverley T. Mead, M.D., and J. Whitney Kelley, M.D., testified for the defense that at the time of the shootings, Williams suffered from a paranoid state beyond that of a personality disorder. Dr. Mead testified that Williams' perception of reality and his judgment were seriously impaired, but opined that at the time of the shootings Williams knew what he was doing, knew that his acts were wrong, and knew right from wrong. Dr. Kelley, the only non-board-certified psychiatrist of the four experts, testified that Williams' thinking process was distorted and that he would have known that his actions were wrong only if he had taken time to think.

Williams stated that he was under the influence of alcohol, marijuana, LSD, and PCP at the time of the shootings. Both of Williams' experts agreed that depending on the quantity and quality of PCP and LSD ingested, the effects of those drugs can last for days. Jury instruction No. 10 stated:

Ordinarily, voluntary drug or alcohol intoxication is no justification or excuse for crime; but excessive drug or alcohol intoxication by which a person is wholly deprived of reason may prevent deliberation, premeditation or having the intent charged.

If you find that the defendant was intoxicated with drugs or alcohol, that fact should be considered by you, together with all the facts and circumstances in evidence, for the purpose of determining whether or not you have a reasonable doubt that defendant was at the time in question capable of deliberation, premeditation or having the intent charged.

Williams was found guilty on all three counts and was sentenced to death on each of the two murder counts and to imprisonment for not less than 8 1/3 years nor more than 25 years on the sexual assault count.

Following the verdict, Williams filed a motion for new trial alleging numerous irregularities, including denial of "a fair and impartial trial and due process of law by the misconduct of certain jurors during trial of [his case]." The sole basis for the motion for new trial's generic allegation of juror misconduct was telephone conversations that one of Williams' trial counsel had with jurors which related to the publication of the jurors' names in a local newspaper. In denying Williams' motion for new trial, the district court found that "there was no misconduct of any juror during the trial."

On direct appeal, Williams raised numerous errors, none of which included juror misconduct and all of which were found to be without merit. See State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979), cert. denied 449 U.S. 891, 101 S. Ct. 255, 66 L. Ed. 2d 120 (1980). In his two previous unsuccessful postconviction actions, Williams did not raise juror misconduct as a basis for relief. See, State v. Williams, 224 Neb. 114,396 N.W.2d 114 (1986); State v. Williams, 217 Neb. 539, 352 N.W.2d 538 (1984). Williams also failed in an attempt to obtain federal habeas corpus relief. Williams v. Clarke, 40 F.3d 1529 (8th Cir. 1994), cert. denied ____U.S.____, 115 S. Ct. 1397,131 L.Ed.2d 247 (1995).

On January 25, 1995, this court issued an order setting March 22, 1995, as Williams' execution date. On March 21, Williams filed his third attempt to obtain state postconviction relief in the district court. The district court denied Williams' request for a stay of execution in that proceeding. On March 22, in State v. Williams, cases Nos. S-95-295 and S-42-235, this court ordered its execution warrant withdrawn and directed the district court to conduct an evidentiary hearing as follows:

[T]he matter is remanded to the district court for Lancaster County to promptly hold an evidentiary hearing on the petition for post conviction [relief] to determine whether the alleged [juror] misconduct actually occurred, and [if so] whether said misconduct was prejudicial to the extent that the defendant was denied a fair trial.

At the postconviction evidentiary hearing, juror Barbara Boyce stated that at the conclusion of each day's trial testimony, she went home and journalized what had transpired. The jurors were not sequestered and were not permitted to take notes. Boyce testified on direct examination in the following manner:

Q [D]id you ever look at maps during the deliberation process of the trial?

A No.

....

Q At the time that you looked at the maps, and again, I'm talking before deliberations, did you look at the maps to verify how plausible it would be that a person under the influence could have executed the specific flight path that Mr. Williams did?

A As things -- as testimony evolved and questions of his sanity and so forth, this was a factor in my consideration, yes.

Q And at the time that you looked at the maps -- and again, I want to be very clear, I'm talking about before deliberations and during the trial portion of the evidence when the evidence was presented, what was it that you did, in fact, determine by examining the maps?

A Well, it seemed to me that -- that he was -- had been very quick to extricate himself from a very difficult situation. It seemed to be a relatively complicated route, to me, and that did lead me to concur with the prosecuting evidence saying that -- or the defense saying that -- wait a minute.

That he was not impaired enough to not have known what he was doing. So it seemed that what -- while there was evidence of prior drug and alcohol use, it wasn't clear to me, from the picture that was presented in all of this, how much he was actually under the influence when the crimes were committed.

....

Q Was there some point during deliberations that you had told some of the other jurors that you had looked at road maps during the trial?

[The State's Neb. Evid. R. 606(2) objection here was overruled.]

A To the best of my recollection, the only time it came up was in my questioning other jurors' assumptions about places or where they were located or how far apart they were or other things of that nature, and when I did so I mentioned that I had specific recent information from a map, and was advised by the juror -- jury foreman that was inappropriate. But nothing more was made of it. It was a very inconsequential part, as far as the rest of the jury was concerned.

It was adduced during the hearing that Boyce was born in Topeka, Kansas, spent most of her grade and high school years in Lawrence, Kansas, and received a bachelor's degree in French and German from the University of Kansas and a master's degree in French from Johns Hopkins University. At the time of the trial, Boyce had lived in Lincoln for approximately 5 years. She testified on cross-examination that she "had no idea" how far Omaha was from Lincoln or whether it would take 3 or 4 days to drive to Minneapolis, Minnesota, from Lincoln. She testified that she did know the relative location of the states to one another.

At the hearing, 10 of the other 11 jurors, including the foreman, testified that they did not recall any discussion about any maps at all. One juror, Joanne Hunt Kirkpatrick, testified that she recalled Boyce expressing a concern that the jurors should be given a map so they could trace Williams' route, but did not recall Boyce saying that she had looked at a map.

The district court found that "[b]y any stretch of the imagination, Boyce's reviewing an atlas brought extraneous material or information before at least one of the jurors." However, the court held that Williams' juror misconduct claim was procedurally barred because Boyce's reviewing an atlas was information that was "available" to the defendant immediately upon the entry of the verdict. Whether it was readily available or actually known is not the issue. It was available. Although it was uncovered, there is no evidence that it was secreted. In fact, there is not one scintilla of evidence that any effort was made, prior to February 1995, to discover any inappropriate action by the jurors, other than the previously discussed telephone conversations of May 30, 1978, which related to publication of the jurors' names in a local newspaper.

The district court went on to state that "[r]ecognizing, however, that the Supreme Court may not agree that Boyce's renegade conduct was 'available' to the defendant, when he filed his prior postconvictions ... the court addresses the merits of Boyce's misconduct." The district court then found, "beyond a reasonable doubt, that the misconduct of Boyce, while not condoned and, in fact, specifically condemned, was harmless error." The court reasoned:

Although the defendant's sanity was an issue before the jurors, his route from Lincoln, to Fremont, to Iowa, to Minnesota, to Illinois and back to Lincoln was not....

Closely reviewing the opening statements, the trial evidence, including the experts' testimony, and the closing arguments, no argument was made nor evidence adduced that connects, or can reasonably be inferred to relate, the distances between and/or locations of Lincoln; Fremont; Martin's Access; the Montgomery farm, Cornell, Iowa; the Bredvick farm; Sioux Rapids, Iowa; the Rowe farm; Fridley, Minnesota; the Behun home; St. Paul, Minnesota; the intersection of Como Avenue and Dale Avenue; the secluded area where Billings was driven; Chicago; and Lincoln, to the defendant's contention that he was insane or mentally deranged when he shot and killed McGarry and Brooks. The evidence and arguments made related to what happened at those locales, not to where those locales were in relation to each other or when the defendant was supposed to be there.

In considering the material or information gathered by Boyce's misconduct, the court, pursuant to NEB. REV. STAT. § 27-606(2) (Reissue 1989), does not consider Boyce's comments about what effect, if any, that material information had on her mental processes or emotions during deliberations. As the appellate court stated in State v. Owen, 510 N.W.2d 503, 527, (Neb. App. 1993), ". . . the question of whether prejudice resulted from jury misconduct must be resolved by the trial court's drawing reasonable inferences as to the effect of the extraneous information on an average juror."

After reviewing the record, the court finds that there is no reasonable possibility that the extraneous material or information secured by Boyce affected the jury's verdicts to the defendant's detriment. There was no actual prejudice and no reasonable possibility of prejudice to the defendant by Boyce's misconduct.

(Emphasis omitted.)

Rephrased and reorganized, Williams' assignments of error assert that the district court erred in (1) its failure to grant an evidentiary hearing on whether imprisoning a person under imminent threat of death for nearly 17 years constitutes cruel and unusual punishment and a denial of justice by due process of law, (2) its failure to grant an evidentiary hearing on whether the exclusion of African-Americans from death-sentencing issues violates the Nebraska and U.S. Constitutions, (3) its finding that the issue of juror misconduct was procedurally barred, (4) its failure to consider juror Boyce's testimony that extraneous material influenced her vote to convict, and (5) its concluding that juror Boyce's use of extraneous information did not prejudice Williams.

In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996).

On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous. State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v. Escamilla, 245 Neb. 13, 51 1 N.W.2d 58 (1994).

Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court. State v. Stubblefield, 249 Neb. 436, 543 N.W.2d 743 (1996); State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995).

IV. ANALYSIS

In our order dated March 22, 1995, we remanded to the district court to "determine whether the alleged [juror] misconduct actually occurred, and [if so] whether said misconduct was prejudicial to the extent that the defendant was denied a fair trial." Implicit in our order, we determined Williams' assigned errors concerning imprisoning a person under imminent threat of death for nearly 17 years and the exclusion of African-Americans from death-sentencing issues to be without merit. Also implicit in our order, we determined that Williams' juror misconduct claim was not procedurally barred.

On remand, the district court determined that the alleged juror misconduct actually occurred, but found that Williams' claim was procedurally barred or, in the alternative, that the misconduct did not prejudice Williams. When a cause is remanded with specific directions, the court to which the mandate is directed has no power to do anything but to obey the mandate. The order of the appellate court is conclusive on the parties, and no judgment or order different from, or in addition to, that directed by the appellate court can be entered by the trial court. Xerox Corp. v. Karnes, 221 Neb. 691, 380 N.W.2d 277 (1986); Gates v. Howell, 211 Neb. 85, 317 N.W.2d 772 (1982).

Accordingly, the district court was without power to find that Williams' juror misconduct claim was procedurally barred, and we will not address Williams' assigned errors that do not pertain to his juror misconduct claim.

Williams asserts that the district court erred in failing to consider juror Boyce's testimony that extraneous material influenced her vote to convict.

Boyce's affidavit was attached to Williams' postconviction motion but was never entered into evidence at the postconviction hearing. A bill of exceptions is the only vehicle for bringing evidence before an appellate court; evidence which is not made a part of the bill of exceptions may not be considered. Huddleson v. Abramson, 252 Neb. 286, 561 N.W.2d 580 (1997); State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992); State v. Biemacki, 237 Neb. 215, 465 N.W.2d 732 (1991).

"The fact that an affidavit used as evidence in the district court was filed in the office of the clerk of the district court and made a part of the transcript is not important to a consideration and decision of an appeal of a cause to this court. If such an affidavit is not preserved in the bill of exceptions its existence or contents cannot be known by this court." Washa v. Miller, 249 Neb. 941, 949, 546 N.W.2d 813, 818 (1996). See, also, State v. Bell, supra.

Accordingly, we will not consider the portion of Williams' assigned error concerning Boyce's affidavit testimony.

Boyce's testimony at the evidentiary hearing is critical to this analysis and bears repeating. On direct examination, Boyce testified in the following manner:

Q ... [D]id you ever look at maps during the deliberation process of the trial?

A No.

....

Q At the time that you looked at the maps, and again, I'm talking before deliberations, did you look at the maps to verify how plausible it would be that a person under the influence could have executed the specific flight path that Mr. Williams did?

A As things -- as testimony evolved and questions of his sanity and so forth, this was a factor in my consideration, yes.

Q And at the time that you looked at the maps -- and again, I want to be very clear, I'm talking about before deliberations and during the trial portion of the evidence when the evidence was presented, what was it that you did, in fact, determine by examining the maps?

A Well, it seemed to me that -- that he was -- had been very quick to extricate himself from a very difficult situation. It seemed to be a relatively complicated route, to me, and that did lead me to concur with the prosecuting evidence saying that -- or the defense saying that -- wait a minute.

That he was not impaired enough to not have known what he was doing. So it seemed that what -- while there was evidence of prior drug and alcohol use, it wasn't clear to me, from the picture that was presented in all of this, how much he was actually under the influence when the crimes were committed.

....

Q Was there some point during deliberations that you had told some of the other jurors that you had looked at road maps during the trial?

[The State's Neb. Evid. R. 606(2) objection here was overruled.]

....

A To the best of my recollection, the only time it came up was in my questioning other jurors' assumptions about places or where they were located or how far apart they were or other things of that nature, and when I did so I mentioned that I had specific recent information from a map, and was advised by the juror -- jury foreman that was inappropriate. But nothing more was made of it. It was a very inconsequential part, as far as the rest of the jury was concerned.

Neb. Evid. R. 606(2), Neb. Rev. Stat. § 27-606(2) (Reissue 1995), states:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.

In its order, the district court stated, "[I]n considering the material or information gathered by Boyce's misconduct, the court, pursuant to NEB. REV. STAT. § 27-606(2) (Reissue 1989), does not consider Boyce's comments about what effect, if any, that material information had on her mental processes or emotions during deliberations." Williams asserts that this statement by the district court shows that the district court did not consider Boyce's testimony, even though it was adduced without the State's imposing any objections or motions to strike pursuant to rule 606(2).

It is generally true that if a party against whom inadmissible evidence is offered consents to its introduction, or fails to object, the party is considered to have waived whatever objection he or she may have had, and the evidence is in record for consideration just as other evidence. See, Barks v. Cosgriff Co., 247 Neb. 660, 529 N.W.2d 749 (1995); State v. Nowicki, 239 Neb. 130, 474 N.W.2d 478 (1991). However, this court and at least one other court have indicated that trial judges should not consider evidence of jurors' mental processes during the deliberation process even in the absence of a timely objection to such evidence.

In State v. Roberts, 227 Neb. 489, 491, 418 N.W.2d 246, 248 (1988), the affidavit of a juror stating that she "'did use [extraneous] information ... to make her decision about [the defendant] being guilty"' was received into evidence without objection. This court stated that "[a]lthough the juror's affidavit was not objected to at the hearing on the motion for new trial, the trial court should not have considered it, since it obviously violated the terms of § 27-606(2)." 227 Neb. at 494, 418 N.W.2d at 250.

Likewise, in State v. Rouse, 290 N.W.2d 911 (Iowa 1980), a juror submitted an affidavit at the hearing on a motion for new trial that stated the jury had failed to consider the issue of intent as a necessary element of the crime of burglary. The juror testified at the hearing, without objection, that she would not have voted to convict if the element of intent had been discussed. On appeal, the defendant argued that the State waived any objection it had to the juror's testimony by failing to object at the hearing. However, the Iowa Supreme Court held that the trial court properly declined to consider the juror's testimony, "even in the absence of objection by the State," 290 N.W.2d at 917, because this type of evidence is "incompetent" on "general policy grounds," 290 N.W.2d at 916.

It is important to note that permitting litigants to attack a verdict based upon the jury's internal deliberations has long been recognized as unwise. In McDonald v. Pless, 238 U.S. 264, 267-68, 35 S. Ct. 783, 59 L. Ed. 1300 (1915), the Court stated:

[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation-- to the destruction of all frankness and freedom of discussion and conference.

The underlying policy considerations of rule 606(2) cannot be overstated. In particular, our rule advances the institutional principle that all litigation must ultimately end, discourages juror harassment by unsuccessful litigants, and promotes unhindered juror discourse. See State v. Marhal, 172 Wis. 2d 491, 493 N.W.2d 758 (Wis. App. 1992).

We conclude that the underlying policies in support of this state's rule 606(2) are so vital to the preservation of the jury system and so basic to the interest of justice that the courts of this state must be able to apply the rule sua sponte. Accordingly, even in the absence of a timely objection pursuant to rule 606(2), the district court did not err in not considering Boyce's testimony about what effect, if any, that material information had on her mental processes or emotions during deliberations.

Williams next asserts that the district court erred in concluding that Boyce's use of the maps did not prejudice him.

In order for a new trial to be granted because of a juror's use of extraneous information, the party claiming the misconduct has the burden to show by a preponderance of the evidence that prejudice has occurred. See State v. Anderson, 252 Neb. 675, 564 N.W.2d 581 (1997). Extraneous material or information considered by a jury may be deemed prejudicial without proof of actual prejudice if the material or information relates to an issue submitted to the jury and there is a reasonable possibility that the extraneous material or information affected the verdict to the detriment of a litigant. State v. Anderson, supra; Hartley v. Guthmann, 248 Neb. 131, 532 N.W.2d 331 (1995); Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991); State v. Owen, 1 Neb. App. 1060, 510 N.W.2d 503 (1993). See State v. Messelt, 185 Wis. 2d 254, 518 N.W.2d 232 (1994).

The question of whether prejudice resulted from jury misconduct must be resolved by the trial court's drawing reasonable inferences as to the effect of the extraneous information on an average juror. Loving v. Baker's Supermarkets, supra; State v. Owen, supra. See, also, U.S. v. Console, 13 F.3d 641 (3d Cir. 1993), cert. denied sub nom. Markoff v. United States, 513 U.S. 812, 115 S. Ct. 64, 130 L.Ed.2d 21 (1994); U.S. v. Boylan, 898 F.2d 230 (1st Cir. 1990), cert. denied 498 U.S. 849, 111 S. Ct. 139, 112 L.Ed.2d 106; U. S. v. Calbas, 821 F.2d 887 (2d Cir. 1987), cert. denied 485 U.S. 937, 108 S. Ct. 1114, 99 L.Ed. 2d 275 (1988); State v. Poh, 116 Wis.2d 510, 343 N.W.2d 108 (1984).

In its order, the district court found that the maps did not relate to an issue submitted to the jury and that there was no reasonable possibility that the maps affected the verdict. More specifically, the district court stated:

Although the defendant's sanity was an issue before the jurors, his route from Lincoln, to Fremont, to Iowa, to Minnesota, to Illinois and back to Lincoln was not....

Closely reviewing the opening statements, the trial evidence, including the experts' testimony, and the closing arguments, no argument was made nor evidence adduced that connects, or can reasonably be inferred to relate, the distances between and/or locations of Lincoln; Fremont; Martin's Access; the Montgomery farm, Cornell, Iowa; the Bredvick farm; Sioux Rapids, Iowa; the Rowe farm; Fridley, Minnesota; the Behun home; St. Paul, Minnesota; the intersection of Como Avenue and Dale Avenue; the secluded area where Billings was driven; Chicago; and Lincoln, to the defendant's contention that he was insane or mentally deranged when he shot and killed McGarry and Brooks. The evidence and arguments made related to what happened at those locales, not to where those locales were in relation to each other or when the defendant was supposed to be there.

After reviewing the record, the court finds that there is no reasonable possibility that the extraneous material or information secured by Boyce affected the jury's verdicts to the defendant's detriment. There was no actual prejudice and no reasonable possibility of prejudice to the defendant by Boyce's misconduct.

(Emphasis omitted.)

We disagree with the district court's reasoning that no prejudice occurred because no argument was made or evidence adduced that relates the distances between, and/or locations of, the various places that Williams traveled to his state of mind at the time of the shootings. Extraneous material viewed by a juror could be prejudicial to a defendant, although the content of the extraneous material was not argued or introduced as evidence at trial. The test to determine whether extraneous material was prejudicial looks to the possible effect of the extraneous material on an average juror's deliberative process. Loving v. Baker's Supermarkets, supra; State v. Owen, supra. See, also, U.S. v. Console, supra; U.S. v. Boylan, supra; U.S. V. Calbas, supra; State v. Poh, supra.

Prior to deliberations, the jurors had not yet been instructed on the applicable law of the case. Jury instructions Nos. 9 and 10 apprised the jurors that it was their duty to determine whether Williams possessed the cognitive abilities at the time of the shootings to understand what he was doing and the nature and quality of his act, to distinguish between right and wrong with respect to it, to know that such act was wrong and deserved punishment, to act intentionally, and to premeditate and deliberate.

A minimum of 14 hours passed after the shootings before Williams left Lincoln. During this time period, Williams visited a friend, slept, sexually assaulted another woman, took LSD, smoked marijuana, and drank beer. People who saw Williams during this time period testified that Williams' demeanor appeared normal.

The evidence adduced at trial established that once on his "flight path," Williams went from Lincoln to St. Paul, Minnesota, to Chicago, Illinois, and then back to Lincoln. More specifically, Williams traveled by car from Lincoln to St. Paul via Fremont, Nebraska; Cherokee City, Iowa; and Cornell, Iowa. Once Williams left St. Paul, he traveled by car to Chicago and then back to Nebraska by train.

Although Boyce was "relatively ignorant of midwest geography at the time of the trial," she did know the relative location of the states to one another, and more specifically knew that Iowa was east of Nebraska and that Minnesota was north of Iowa. Boyce also testified that she knew that Omaha was on the Nebraska-Iowa border in an easterly direction from Lincoln and knew where St. Paul and Chicago were in general terms.

At the trial, Fremont was described as being north of Lincoln; Cherokee City, Iowa, was described as being northeast of Omaha, Nebraska; Cornell, Iowa, was described as being northeast of Cherokee City, Iowa; and Minnesota was described as being north of Iowa' Thus, without a juror's having looked at the maps, the evidence adduced at trial would have illustrated to the average juror that Williams' initial "flight path," out of Lincoln to St. Paul, was generally in a northeasterly direction.

Williams testified at trial that he used to live in St. Paul. Behun, the man whom Williams kidnapped at gunpoint, was called as a witness by the State and testified on direct examination as follows:

Q. Then just tell us, please, what happened ....

A. I assumed that he was just interested in getting the car and taking it and going, and so I proceeded to offer him the keys to the car, but he said -- he said, "No. Get in. Take me to St. Paul."

....

Q . All right, sir. And as you then proceeded towards St. Paul, did you receive any directions from the defendant where he wanted to go, what section of town or what have you?

A. Well, he asked me where the Rondo Avenue area was in St. Paul, and I didn't know. I'd heard about it from years ago, but I didn't know where it was.

On cross-examination, the following colloquy occurred between Behun and Williams' counsel:

Q. Now, you again mentioned that you had heard the Rondo area referred to before. Does it to your knowledge or at least did it to your knowledge have a large black population in that area?

A. I really don't remember where it is specifically, but I assume it might have been a somewhat depressed area, yes.

At trial, Williams testified that he was born in Chicago and further testified as follows:

Q. Okay. After you left Lincoln, where did you end up at?

A. Chicago.

Q. And why were you in Chicago?

A. See my mother, I guess, and try to rifle through to see what -- you know, what was going on here.

Also introduced into evidence at trial was a tape recording and transcript of an interview that Williams gave to the Lincoln police following his return from Chicago:

[A]. . . . I was just wanting to get somewhere and try to talk to some of my people, tell them what I was doing. Like, I told my mother I was going to turn myself in.

[Q]. You got to see your mother while you were --

[A]. I didn't see her. I just told her I was going to turn myself in.

[Q]. How did you get a hold of your mother?

[A]. By friends. I just told her, you know, she knew all about it. She said that six cops, or something, that came to her house. And she said she didn't want to see me, you know, dead in the streets. So I just told them to tell her that I was going back to turn myself in.

....

[Q] Did you call your mom on the phone or how did you get a hold of her?

[A]. Oh, I know people, you know, some friends. We kind of relate because she didn't want me to come up there because she said those people didn't want to take any chances about me. And I told her I didn't have any more, any more guns or nothing. And she said that's why they'll probably kill you. So 1, I told her that, you know, tell this guy to tell her I was going back to Lincoln and turn myself in.

Williams further testified at trial on direct examination as follows:

Q. . . . And subsequent to your conversation with your mother in Chicago, what did you then do?

A. I started making arrangements to get back here to Lincoln.

Q. Okay. And did you come back to Lincoln?

A. I did.

Q. How did you come back?

A. By means of a freight train.

....

Q Could you explain how you arranged that?

A. Well, I just -- I went out and just found out which train was coming this way and I just got on the boxcar, and I was sick, you know, but I had to get back here.

....

Q Well, what was your purpose for returning to Lincoln?

A. Well, I figured to get the matter, you know -- if it wasn't so, get it cleared up, you know, and if it was so and who I thought it was, you know, still get it cleared up.

Q. Where was the last place you were on a train at in Nebraska?

A. The last place was right here in Waverly.

Q. And from Waverly, where did you go?

A. I came to Lincoln.

Q. Okay. How did you get to Lincoln from Waverly?

A. By means of a truck.

Q. Okay. And where did you get the truck at?

A. National Crane.

Q. Okay. Well, how did you get it?

A. I just -- I stole it.

Q. Okay. Did you know who owned the truck?

A. Yeah.

Q. Did you know where the keys were?

A. Yes.

In summary, Williams testified that he used to live in St. Paul, and Behun testified that Williams wanted Behun to take him to a particular area in St. Paul. Williams stated that he went from St. Paul to Chicago so that he could communicate with his mother before turning himself in to the police. Williams further testified that while in Chicago, he arranged to jump on a train that would return him to Nebraska, and then stole a known truck at a familiar location so that he could return to Lincoln.

These facts, and the fact that Williams planned out and committed further crimes in order to continue his journey, were in evidence irrespective of the maps and show that his journey was not random. From this evidence, a reasonable juror could only conclude that Williams took deliberate routes to known locations for intended reasons. Thus, Williams has failed to prove there exists a reasonable possibility that viewing his "flight path" on extraneous maps could be the bit of information that would lead a reasonable juror to conclude that Williams was legally sane, and formed the requisite mens rea, at the time of the shootings. See, State v. Anderson, 252 Neb. 675, 564 N.W.2d 581 (1997); Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991).

Where the record adequately demonstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that assigned by the trial court, an appellate court will affirm. State v. Allen, 252 Neb. 187, 560 N.W.2d 829 (1997); State v. Anderson, 245 Neb. 237, 512 N.W.2d 367 (1994).

We conclude that the district court did not err in not considering Boyce's testimony or in its finding that Williams was not prejudiced by Boyce's use of the maps. Accordingly, we affirm the district court's denial of Williams' motion for postconviction relief.

AFFIRMED.

United States Court of Appeals
for the eighth circuit

No.  97-4088

Robert E. Williams, Plaintiff-Appellant,
v.
Frank X. Hopkins, Individually and in his capacity as Warden of the Nebraska
State Penitentiary, Defendant-Appellee.

Submitted:  November 28, 1997
Filed: November 28, 1997

Appeal from the United States District Court for the District of Nebraska.

Before HANSEN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HANSEN, Circuit Judge.

I.

Williams was apprehended after committing a string of violent acts in 1977. A Nebraska state court jury convicted him of two counts of first-degree murder and one count of first-degree sexual assault. A panel of three state trial judges sentenced Williams to death by electrocution for each murder conviction and to an indeterminate sentence of imprisonment not to exceed 25 years for the sexual assault conviction.

The Supreme Court of Nebraska upheld Williams' convictions and sentences on direct appeal and in post conviction proceedings. See State v. Williams , 287 N.W.2d 18 (Neb. 1979), cert. denied , 449 U.S. 891 (1980); State v. Williams , 352 N.W.2d 538 (Neb. 1984); State v. Williams , 358 N.W.2d 195 (Neb. 1984); State v. Williams , 396 N.W.2d 114 (Neb. 1986).

In 1987, Williams filed his first application for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his amended petition filed by appointed counsel (who was not his present counsel), Williams presented the issue of whether death by electrocution is constitutional, but he later abandoned the issue so it was never addressed by the district court.

The district court granted the writ as to one death sentence, concluding that the sentence had been based in part on an unconstitutional aggravating factor, and denied the writ as to the remaining death sentence. See Williams v. Clarke , 823 F. Supp. 1486 (D. Neb. 1993) (subsequent history omitted).

On appeal to this court, Williams again raised in his brief the issue of whether death by electrocution violates the Eighth Amendment's prohibition of cruel and unusual punishment, but we declined to reach it because Williams had abandoned the issue before the district court, and the district court had not determined it. We affirmed the district court's denial of habeas corpus relief as to the murder conviction appealed. See Williams v. Clarke , 40 F.3d 1529, 1531, 1544 (8th Cir. 1994), cert. denied , 514 U.S. 1033 (1995).

On the day of his scheduled execution in March 1995, Williams filed a second federal habeas corpus action, asserting new evidence of alleged juror misconduct. The day before he had filed another state post conviction relief action on the same basis. Williams voluntarily dismissed his second federal habeas action pursuant to Rule of Civil Procedure 41(a)(1), see Williams v. Clarke , 82 F.3d 270, 272-73 (8th Cir. 1996), after the Supreme Court of Nebraska granted Williams a stay of execution and ordered an evidentiary hearing on the juror misconduct issue. Ultimately, the state courts denied Williams' post conviction action based on alleged juror misconduct, see State v. Williams , 568 N.W.2d 246 (Neb. 1997) cert. denied , 97-6860, 1997 WL 732087 (U.S. Nov. 26, 1997), and the instant death warrant issued.

It is once again the eleventh hour for Mr. Williams. He has now filed this 42 U.S.C. § 1983 action, challenging the constitutionality of Nebraska's statutory choice of carrying out death sentences by electrocution, and the constitutionality of the particular method by which Nebraska is alleged to administer the electrical current for electrocutions. The district court dismissed Williams' § 1983 complaint as legally frivolous. Williams appeals.

II.

Williams challenges the district court's conclusion that his complaint is legally frivolous. A complaint "`is frivolous where it lacks an arguable basis either in law or in fact.'" Cokeley v. Endell , 27 F.3d 331, 332 (8th Cir. 1994) (quoting Neitzke v. Williams , 490 U.S. 319, 325 (1989)).

The district court gave six reasons underlying its determination that Williams' complaint is frivolous, including that this § 1983 suit is the functional equivalent of a successive habeas corpus petition, which was improperly filed without first obtaining permission pursuant to 28 U.S.C. § 2244(b)(3)(A) and which asserts the same claim that Williams raised but abandoned in his first habeas corpus complaint filed ten years ago. Williams argues on appeal that this case is not subject to the habeas rules barring a successive habeas complaint but is instead a valid § 1983 challenge to the method of execution, which he argues is a condition of his confinement and not an attack on his sentence.

The Eighth Amendment proscribes "punishments which are incompatible with 'the evolving standards of decency that mark the progress of a maturing society.'" Estelle v. Gamble , 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles , 356 U.S. 86, 101 (1958)).

Claims challenging the conditions of confinement or the method by which a sentence is being carried out may be asserted through a § 1983 cause of action. However, a state prisoner challenging the fact or duration of a sentence of imprisonment and seeking immediate or speedier release has a federal remedy through habeas corpus and cannot bring a claim under § 1983. Preiser v. Rodriguez , 411 U.S. 475, 500 (1973); Otey v. Hopkins , 5 F.3d 1125, 1131 (8th Cir. 1993), cert. denied , 512 U.S. 1246 (1994).

In Gomez v. United States District Court , 503 U.S. 653, 653 (1992), the Supreme Court refused to consider an eleventh-hour § 1983 challenge to a method of execution (death by cyanide gas), holding that the action was "an obvious attempt to avoid the application of McCleskey v. Zant , 499 U.S. 467 (1991)," which would otherwise act to bar the condemned prisoner's successive complaint.

The Court further noted that even assuming the petitioner could avoid the application of the restrictions on successive habeas claims by labeling his action as a § 1983 claim, the Court would not consider the merits. Id. The Court explained that the petitioner was seeking an equitable remedy, regardless of the label attached to the claim. The Court stated the following:

Equity must take into consideration the State's strong interest in proceeding with its judgment and [the petitioner's] obvious attempt at manipulation. This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.

Id. at 654. See also Lonchar v. Thomas , 116 S. Ct. 1293, 1301 (1996) (explaining Gomez as holding that the habeas rules do apply to a last minute § 1983 method of execution claim) (citations omitted).

In Williams' case, though he challenges the method of execution and asserts this is a § 1983 case, his last-minute request for equitable relief seeks to stop or delay his execution. The Sixth and Eleventh Circuits have considered similar cases in light of the Supreme Court's decisions in Gomez and Lonchar , and they each determined that a prisoner may not circumvent the habeas rules restricting successive claims by filing a § 1983 claim to challenge the method of execution.

The Sixth Circuit observed that a "challenge to the manner of execution is a challenge seeking to interfere with the sentence itself, and thus, is properly construed as a petition for habeas corpus." In re Sapp , 118 F.3d 460, 462 (6th Cir.), cert. denied 117 S.Ct. 2536 (1997).

Similarly, the Eleventh Circuit treated a § 1983 challenge to the method of execution as a second habeas petition and concluded that the "[p]laintiff's § 1983 claim is subject to the procedural requirements for bringing a second or successive habeas claim." Felker v. Turpin , 101 F.3d 95, 96 (11th Cir.), cert. denied 117 S.Ct. 450 (1996). We find the reasoning of these cases persuasive. Accordingly, we believe that the district court correctly determined that Williams' current complaint is the functional equivalent of a successive habeas action, regardless of its technical label.

Treating Williams' § 1983 claim as the functional equivalent of a successive habeas action, we agree with the district court's assessment that Williams failed to request permission of this court pursuant to 28 U.S.C. § 2244(b)(3)(A) (1996) to file a successive habeas corpus application. Thus, the district court's alternative reasoning that it was without jurisdiction to consider Williams' request for relief is correct. See In re Sapp , 118 F.3d at 464; Felker , 101 F.3d at 96.

Furthermore, even if he had requested permission from us to file a successive habeas corpus application, the allegations of Williams' claim do not meet the statutory requirement that "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence," 28 U.S.C. § 2244(b)(2)(B)(i), and we would have been compelled to deny him permission to file.

Williams raised the general constitutional issue of whether death by electrocution constitutes cruel and unusual punishment in his first federal habeas complaint filed over a decade ago, but voluntarily abandoned the issue. The factual predicate was available at that time but Williams chose not to pursue it. Deliberate abandonment of a claim in a prior habeas action disentitles a prisoner to habeas relief when he later raises the same issue in a second habeas petition. McCleskey v. Zant , 499 U.S. 467, 489 (1991); Sanders v. United States , 373 U.S. 1, 18 (1963).

Williams contends that the basis for his specific challenge to the manner in which the electrical current is allegedly administered by Nebraska was not available until after Harold Lamont Otey was executed using four currents of electricity on September 2, 1994, and that it was not ripe until the present death warrant was issued on October 10, 1997.

Williams claims that the state statute provides that the electrocution must be administered in one continuous current of electricity, not intermittent currents. See Neb. Rev. Stat. § 29- 2532 (1995) (providing that electrocution is to be accomplished by "a current of electricity of sufficient intensity to cause death").

Even assuming the factual predicate was not available until 1994, Williams' delay in bringing this claim is manipulative and abusive. This claim was available in March 1995, and ripe on the date of Williams' first scheduled execution when he filed and then voluntarily dismissed his second federal habeas complaint, yet he did not include the claim at that time, nor does the record before us show that he included it in his state court post conviction pleading filed at the same time.

Only now, on the eve of another scheduled execution date, has Williams offered this theory to the federal courts. For these reasons, the habeas rules themselves and the equitable principles articulated in Gomez and Lonchar bar Williams' claims at this late hour regardless of whether his action is considered a § 1983 claim or a successive habeas corpus application.

Even absent the procedural roadblocks which preclude any relief for him, the merits of Williams' claim clearly lack an arguable basis in law. The district court correctly noted that a constitutional challenge to death by electrocution has never been successful, citing In re Kemmler , 136 U.S. 436, 443-44 (1890), and Felker , 101 F.3d at 97 (collecting cases). As the Sixth Circuit stated in Sapp earlier this year:

Electrocution has never been found to be cruel and unusual punishment by any American court. See , e.g. , In re Kemmler , 136 U.S. at 443 -44; Ingram v. Ault , 50 F.3d 898 (11th Cir. 1995); Felker , 101 F.3d at 97; Porter [v. Wainwright] , 805 F.2d [930,] 943 n.15 [(11th Cir. 1986), cert. denied , 482 U.S. 918 (1987)]; Glass v. Louisiana , 471 U.S. 1080 (1985) (Brennan, J., dissenting from denial of certiorari) ("such claims have uniformly and summarily been rejected"). No legislatively authorized method of execution in the United States is outlawed in any jurisdiction by any currently- effective court decision. [Gomez v.]Fierro , 117 S. Ct. [285,] 285 [(1986)]; Rupe v. Wood , 863 F. Supp. 1307 (W.D. Wash. 1994), vacated as moot , 93 F.3d 1434 (9th Cir. 1996).

The very practice of electrocution has been upheld by other courts within the past year, and there is no argument even plausible that there are differences in the level of "evolving decency" among the different circuits or states of the union, or over the last very few years.

118 F.3d at 464.

Williams' claim that the warden intends to violate the Nebraska execution statute by passing more than "a" current of electricity into his body raises the potential of a violation of state law. Ordinarily, an alleged violation of state law does not by itself state a claim redressable by a § 1983 action. "Mere violation of a state statute does not infringe the federal Constitution." Snowden v. Hughes , 321 U.S. 1, 11 (1944); Whisman v. Rinehart , 119 F.3d 1303, 1312 (8th Cir. 1997). Only federal rights are "guarded and vindicated" by § 1983. Ebmeier v. Stump , 70 F.3d 1012, 1013 (8th Cir. 1995). To the extent that Williams asserts that passing more than one current of electricity into his body to effect his death is cruel and unusual punishment barred by the Eighth Amendment, his claim is foreclosed by Louisiana ex rel. Francis v. Resweber , 329 U.S. 459, 463 , 466 (1947), absent any suggestion of malevolence. See also Hamblen v. Dugger 748 F. Supp. 1498, 1503 (M.D. Fla. 1990). Here, Williams makes no claim that the warden will maliciously pass more than one current of electricity into him.

III.

For these reasons, the district court did not err by dismissing Williams' § 1983 complaint with prejudice. Accordingly, we affirm the judgment of the district court. Williams' application for an injunction staying his execution is denied as moot.

*****

MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring.

I concur in all of the court's opinion except for that part which discusses the merits of Mr. Williams' constitutional challenge to execution by electrocution found in the full paragraph on page 7, ante .