Roberto Carlos Silva Jr. courtesy of the Sarpy County Jail.

Prosecutors in Nebraska this week formally declared they will seek the death penalty against a man accused of opening fire at a Sonic Drive-In restaurant, killing two employees and injuring two others in an unprovoked November 2020 attack. Sarpy County Attorney Lee Polikov on Monday announced the filing of upgraded first-degree murder charges against Roberto Carlos Silva Jr. that will allow prosecutors to pursue the death penalty, Omaha CBS affiliate KMTV-TV reported.

During an afternoon press conference, Polikov explained that his office had dismissed the original nine felony counts filed against Silva in state district court and refiled the charges in county court. The refiled charges include allegations that the murderous conduct included multiple aggravating factors that, if he is convicted, will allow the state to put Silva to death.

“I took these procedural steps today because they were necessary when seeking a determination in a capital punishment case,” Polikov said. “The decision is based on the facts as determined by the investigation—which is always ongoing—as well as new information we received months after the case had been initially filed.”

He added that the new information from investigators “fit the aggravating circumstances necessary to seek the death penalty.”

Polikov explained that after refiling the charges in county court, prosecutors will file a “notice of aggravators” outlining the reasons Silva’s alleged actions constitute a capital crime. A three-judge panel or a jury will be empaneled to hear arguments and decide whether the requisite aggravating factors required for capital punishment have been met. If Silva is convicted, a three-judge panel will then decide whether the death penalty is warranted in his specific case.

Polikov said that it was the first time in his 22 year tenure as County Attorney that he decided to seek the death penalty, noting that “the decision to file it was not taken lightly.”

“I will tell you that there are nine circumstances outlined by statutes that are aggravating circumstances and the evidence we have, we haven’t presented in court so I don’t want to get into the details of why we think that a number of those nine aggravators are applicable to this case,” he said.

In addition to the refiled charges, prosecutors also filed additional charges of attempted first-degree murder and the use of a firearm to commit a felony for Silva’s alleged attempts to kill each of the three Sonic employees who were able to flee the store unscathed.

Silva made national headlines when he allegedly drove a rented U-Haul truck up to the drive-thru window at the Sonic located in the 1300 block of Cornhusker Road on Nov. 21, 2020 and began firing into the fast food restaurant. The attack left employees Nathan Pastrana, 22, and Ryan Helbert, 28, dead. Employees Zoey Lujan, 18, and Kenneth Gerner, 25, both suffered gunshot wounds but survived. Prosecutors also accused Silva of throwing multiple “incendiary devices” into the restaurant before fleeing the scene. He allegedly set the U-Haul truck on fire before he was arrested.

He made national headlines following his arrest not just because of the heinous nature of the alleged crime, but also because he posed for his subsequent mugshot with a broad faced grin leading some outlets to dub him the “Smiling Shooter.”

The nine felony charges Silva previously faced included two counts of first-degree murder and one count of first-degree arson.

Since his arrest, Polikov noted that Silva had also been charged with felony criminal attempted escape and misdemeanor assault stemming from an October 2021 incident in the Sarpy County Jail where he allegedly threw a cup filled with his own feces and urine at corrections officers.

Officials have not yet set a date for Silva’s trial.

Watch Polikov’s press conference below.

[image via Sarpy County Jail]

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