Torres' murder case argued before Nebraska Supreme Court
By Sarah Schulz
Published: Wednesday, March 2, 2011 11:37 AM CST
The case of convicted double murderer Marco E. Torres Jr. was argued before the Nebraska Supreme Court this morning.
Torres, 35, of Pasadena, Texas, was convicted by a Hall County jury on Aug. 28, 2009, of killing Timothy Donohue, 48, and Edward Hall, 60, in March 2007 at Hall's home, 1208 S. Adams St.
He was sentenced in January 2010 by a three-judge panel to death on each count of first-degree murder, to 50 years each for robbery and three counts of using a gun to commit a felony and to 20 months to five years in prison for the unauthorized use of a debit card.
Torres' court-appointed attorney, Kirk Naylor, argued today that the trial court erred in admitting evidence relating to Torres' conviction for kidnapping, robbery and two counts of using a gun to commit a felony for an incident that occurred in mid-February 2007 at Hall's home. The victim in that case was William "Billy" Packer.
Naylor argued that the evidence was prejudicial against his client and should have been considered inadmissible under prior bad acts. The evidence was allowed, over Naylor's objection, during the trial for the purpose of showing motive, intent and opportunity. However, Naylor said the state provided other evidence from witnesses to serve that same purpose.
He further argued that, other than the location of the two crimes, he didn't see them as part of the same incident.
"The jury didn't need the grisly details of the kidnapping and robbery to establish that the appellant had been at Hall's house prior to the homicides," Naylor said.
In addition, Naylor argued that the use of a trial transcript by the members of the three-judge panel, two of whom didn't hear direct testimony or evidence, robbed his client of his due-process rights. The information was used to determine the aggravating circumstances for the death penalty.
A notice of aggravation was filed with the charges against Torres. Those aggravators were that the murder was committed in an effort to conceal the commission of a crime or to conceal the identity of the perpetrator; more than one murder was committed at the same time; the murder was especially heinous, atrocious or cruel; and the offender had a substantial prior history of assaultive or terrorizing criminal activity.
The panel determined that Torres was previously convicted of kidnapping and robbery; Hall was bound and gagged before he was shot, causing him to suffer mentally; the men were killed to conceal Torres' identity; and both men were killed at approximately the same time.
Naylor said the panel's finding that Hall suffered mentally shouldn't have been considered as an aggravator. He cited the court's decision in a previous murder case where mental anguish wasn't used as a basis for an aggravating circumstance.
Kirk Brown, an attorney with the Nebraska attorney general's office, argued on behalf of the state.
He began by saying Torres had bragged about the murders to another inmate and had twice tried to plant false alibis with other people. He also tortured Hall by binding and gagging him to the point of causing suffocation. Even without the aggravating circumstance involving mental suffering, there were other aggravating circumstances that would have led to the death sentence in this case, he said.
Brown said Torres waived his right to have a jury for the sentencing phase. By statute, that left the sentencing to a three-judge panel and the trial transcript.
"He can't waive a jury, then claim he was denied due process," Brown said. "If he wanted what he claimed he wanted, he could have had it."
In response to Naylor's argument that two of the three judges on the panel weren't able to view witnesses and determine their credibility, Brown said the transcript included the cross-examination of witnesses and impeachment evidence.
He also added that the evidence concerning the Packer case admitted in the murder trial came with cautionary warnings to the jury as to its use. There was evidence from other witnesses about the same case but, Brown argued, that didn't necessarily reduce the need for other evidence, particularly when one of the state's witnesses was a drug dealer and drug user.
The Supreme Court justices will take the case under advisement and make a ruling in the future.
Photo : The murderer Marco E. Torres Jr.