dissenting.
I respectfully dissent. I believe that the Nebraska Supreme Court has provided an interpretation of section 29-2523(l)(d) that brings its language into constitutional confines. The statute provides that the death sentence may be imposed on a defendant where “[t]he murder ... manifested exceptional depravity by ordinary standards of morality and intelligence_” Neb.Rev. Stat. § 29-2523(l)(d) (Reissue 1985). As the majority points out, prior to Moore’s sentencing the Nebraska Supreme Court had stated on several occasions that “exceptional depravity” in this context means “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, 539, 250 N.W.2d 867, 874, cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198 (1977); State v. Stewart, 197 Neb. 497, 521, 250 N.W.2d 849, 864 (1977); State v. Holtan, 197 Neb. 544, 547, 250 *1235N.W.2d 876, 880, cert. denied, 434 U.S. 912, 98 S.Ct. 313, 54 L.Ed.2d 198 (1977). Further, the Nebraska Supreme Court had recognized that “ ‘all first degree murder crimes are capable of being accurately characterized by one or more of the descriptive adjectives employed, but by the use of the words “especially” and “exceptional” the legislature has required a much greater degree of these characteristics than is usually present in a murder.’ ” Rust, 197 Neb. at 538, 250 N.W.2d at 874. In State v. Holtan, the Nebraska Supreme Court had held that the second prong of section 29-2523(l)(d) applied even though the murder did not involve torture because “[t]he defendant killed, and attempted to kill, unresisting victims of the robbery.” 197 Neb. at 547, 250 N.W.2d at 880. And, in State v. Simants, Nebraska’s high court had stated that the key word in the second prong of the section is “exceptional.” It 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”. 197 Neb. 549, 566, 250 N.W.2d 881, 891, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).
I believe that in these cases the Supreme Court of Nebraska has provided sufficient guidance to sentencing bodies that prevents the arbitrary imposition of the death penalty.
The majority concedes that the phrase “so coldly calculated” has an “aura of objectivity” and that the phrase “unresisting victims” initially provided some objective guidance, but ultimately concludes that Nebraska’s definition taken as a whole calls for subjective consideration and is thus impermissible. I disagree. I do not claim that the second prong of section 29-2523(l)(d) as written and construed does not call upon the sentencing body to engage in any subjective consideration. I can see that it does call for the assessment of certain subjective factors. Any aggravating circumstance statute that attempts to describe only a state of mind, as section 29-2523(l)(d) does, will necessarily involve some degree of subjectivity. But I do not believe that this statute must be declared unconstitutionally vague for that reason.
The United States Supreme Court has not required the states that choose to impose capital punishment to entirely preclude the sentencing body’s consideration of subjective factors. In Gregg v. Georgia, the Court warned that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). That language does not suggest a rule that aggravating circumstances statutes must be based on entirely objective factors; rather, it forbids the “risk” of action that is “wholly arbitrary and capricious.” Similarly, in Proffitt v. Florida, the Supreme Court stated that “the requirements of Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (emphasis added). Even though section 29-2523(l)(d) to some extent calls for a subjective judgment I believe that by its construction the Nebraska Supreme Court had, at the time of Moore’s sentencing, provided contours to the statute that saved it from unconstitutional vagueness as that principle has been defined by the United States Supreme Court.
It seems to me that the majority’s approach in this case could defeat virtually any aggravating circumstance statute, and by the use of semantics make a dead letter of any death statute. For example, the majority relies on the oft-repeated argument that words such as “senseless” and “depraved” offer no guidance because they *1236are too subjective and are terms that could accurately be used to describe any murder. The statutory aggravating circumstance upheld in Proffitt, construed as “ ‘the conscienceless or pitiless crime which is unnecessarily torturous to the victim’ ”, see Proffitt, 428 U.S. at 255, 96 S.Ct. at 2968 (quoting State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974)) is arguably objectionable for the same reasons: all first degree murders are in a sense conscienceless and pitiless, and “unnecessarily torturous” calls upon the sentencing body to somehow distinguish between torture that is unnecessary and torture that is something else. In that definition, the word “torturous” does offer objective guidance, but the terms “pitiless” and “conscienceless” certainly leave some subjective consideration to the sentencing body. Despite that, the United States Supreme Court upheld that construction against a vagueness challenge, and in my view implied that the states’ obligation in this regard is not to remove all subjective factors, but, rather, to provide sufficient limits and guidance so that capital punishment is not imposed in a wholly arbitrary manner.
I believe that Nebraska has met that obligation. It authorizes the death penalty where a murder manifests a depravity that offends all standards of morality and intelligence, such as where the murderer engaged in cold calculation showing a complete lack of regard for human life or took the life of an unresisting victim. I am satisfied that that definition provides enough guidance to minimize the risk of wholly arbitrary and capricious action. The phrases “cold calculation” and “depravity offending all standards of morality and intelligence” and “unresisting victim” are sufficiently clear and specific and provide a “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Gregg, 428 U.S. at 188, 96 S.Ct. at 2932 (quoting Furman, 408 U.S. at 313, 92 S.Ct. at 2764 (White, J., concurring)).
I am further satisfied that the Nebraska Supreme Court permissibly applied section 29-2523(l)(d) in this case. The defendant unquestionably engaged in cold calculation as he chose his victims on the basis of his depraved belief that the life of an older person is less valuable than that of a young person, that for lucre, the preferred procedure for the murderer is to take the life of an unresisting victim in order to prevent identification of the murderer by his victim. The murderer’s conduct here is by any standards indicative of conduct exceptionally depraved by “ordinary standards of morality and intelligence” and even by less than ordinary standards.
I would hold that the second prong of section 29-2523(l)(d) as construed by the Nebraska Supreme Court is not unconstitutionally vague and was permissibly applied in this case, and would thus reverse the district court’s decision to grant the writ of habeas corpus.