*1
739
(3d
1987);
Turoff,
F.2d
Cir.
U.S. v.
853 F.2d
(2d
1988).
Cir.
Error
misjoinder
due to
if
requires
only
reversal
the error
injurious
has a “substantial and
or influence in
effect
Lane,
determining
jury’s
verdict.”
We conclude error in to sever did not failing have First, injurious substantial or effect influence or jury. note Petz; that the jury Mitchell of the acquitted prior sexual аssault of this joinder indicates that count have did not a substantial on the injurious effect verdicts Brown regarding the counts. Second, the assault evidence sexual of Brown was convincing Third, for reasons stated. previously evidence of murder of Brown was admitted also Mitchell convincing. with driving Brown to the road dirt where Brown’s was body found. Testi- mony indicated that set of only one was in the bootprints soil the victim and surrounding bootprints set of left the murder scene. Witnesses testified that wearing Mitchell was boots on the of the All night murder. this indicates that it could only have been Mitchell who сommitted the murder. Confirma- tion of this conclusion is found the facts that Mitchell’s clothes blood, were speckled that Mitchell was wearing knife consistent with Brown’s wounds on that evening, and that three inmates testified Mitchell admitted to the murder. Fourth and finally, we conclude that evidence оf the grand larceny from Petz so that of the convincing, joinder Brown counts did prejudice the jury’s grand larceny verdict as to the count. the district court’s
Accordingly, judgment is affirmed. HABERSTROH, Appellant,
RICHARD LEE NEVADA, THE STATE OF
No.
November
A found guilty Haberstroh of the murder and sentenced him to death. The also convicted Haberstroh of first-degree assault, kidnapping, sexual and robbery, each with the use of a deadly weapon. Haberstroh received four consecutive life senten- ces without possibility parole for the and sexual kidnapping assault convictions and two consecutive fifteen-year sentencеs for the robbery conviction.
Haberstroh now asserts that certain of the prosecutor’s argu- ments during sentencing phase his trial constituted prose- cutorial misconduct and warrant a new penalty hearing. We disagree.
In his final argument to the jury, the prosecutor argued that in light of Haberstroh’s conduct in prisons, imposition the death penalty was the toway be sure Haberstroh would not kill again. of his support argument, the prosecutor relied on evidence in the present penalty hearing which indicated that Haberstroh, while serving a term in a federal prison, master- minded an escape plot included the taking of at hostages gunpoint. The prosecutor’s evidence further revealed that Haber- stroh, term, while serving yet another prison had fashioned a *3 deadly out of a weapon piece of metal and used it to threaten the life of a prison guard in another escape The attempt. prosecutor to finally pointed evidence showing that Haberstroh had acquired and concealed a piece angle iron in the Clark County jail just days two before his penalty hearing this case. evidence, case,
When there is as in this of a defendant’s past conduct which a supports reasonable inference that even incar- ceration will not deter the defendant from endangering others’ lives, a prosecutor is entitled to the jury ask to draw that infеr- Green, 173, 176, ence. See State v. 766, 81 Nev. 400 P.2d 767 (1965). The prosecutor is further entitled to ask jurors to consider that inference when whether to deciding impose death pen- alty. Carolina, 1, See Skipper v. South 476 U.S. (1986). 5 “Consideration of a defendant’s conduct as indicative of his future probable behavior is an inevitable and not undesirable element of criminal Id. sentencing.”
This is not a case in which the prosecutor made purely specula- tive as to a predictions defendant’s improbable rehabilitation and future propensity to kill in an to attempt pеrsuade jury to State, the death impose penalty. 105, See Flanagan 104 Nev. (1988); State, 754 P.2d 836 Collier v. 101 Nev. 705 P.2d Here, (1985). the evidence of the defendant’s past conduct prisons jails justified that unless a to the lives of executed, to threat pose Haberstroh continue instance, not, in this violate did others. The prosecutor dictates of Collier. miscon- also committed argues prosecutor
Haberstroh “the of the to as conscience jury duct when he referred mis- can considered the extent the comment be To community.” conduct, the state- jury disregard court’s admonition that State, Nev. See Snow v. ment any possible prejudice. cured Therefore, 439, 447, that (1985). we conclude hearing. fair received a penalty Haberstroh concerning a also raises number contentions Haberstroh carefully trial. We have consid- guilt phasе of the of his fairness that each lacks merit. ered contentions and conclude these and the affirm each of Haberstroh’s convictions Accordingly, sentences. corresponding Mowbray JJ., J., Rose,
Young, concur. C. Springer, J., concurring: not attorney may
Our
is well
a proseсuting
case law
settled:
murder
should be
a death
that a
convict
argue
penalty
victims in
he is a
to kill other innocent
executed because
threat
we said it
for
example,
improper
the future.1 For
in Collier
solution,”
that “there was but
‘rational’
argue
before he could kill
namely,
again.”
“to execute Collier
P.2d
101 Nev. at
at 1129.
permitting
There are sound reasons for
make
kind of
that is
a life or death
making
First,
be
punishment,
decision.
it should
remembered
capital
in order to
bad deeds
implies,
punish
as
term
committed,
already
not to
out villains who are thought
сull
future.
dangerous
state officials to be
in the
It must also
that state’s
are
attorneys
powerful authority figures,
remembered
of the
representatives
recognized
having special
sovereign,
*4
sound
in the field of criminal
knowledge
judgment
justice.
and
So,
attorney
the
for the state is allowed to stand
and
up
when
only way
them
the
the lives of
telling
address
save
jurors,
victims in the future is to terminate the life of
innocent
indeed,
offender,
is
irresistible.
such rhetoric
almost
powerful
allowed, the
When
kind of
is
critical decision of
jury’s.
life or
tends to become more the statе’s than the
death
State,
1 Flanagan
105,
State,
v.
(1988);
104 Nev.
Pellegrini
Whether dangerous, him because we think he is the fact that there minating be some evidence of misconduct in the record should may from our enough justify not be to well-established rule. departure well be a better attorney may very prognosticator The prosecuting the better able to make about average juror predictions than and future; to do in the but it going what a defendant is is the given that should be who lives and who dies and not the deciding will be long who claims that no one safe for so as the “expert” defendant lives. The of future homicidal prosecutor’s prediction conduct, sound, however not relate to the issue faced the by does to jury, namely, person does this deserve die? Notwithstanding the in this case I vote with improper because I do not think that the level of prejudice Flanagan reached in Collier and has been reached in this case.41 eradicated, going again then this that the defendant is to kill if not whether this pressed jury.” argue I in this concurrence do say what adopted I that if this is approach utilitarian should be or not. about, majority opinion expressed openly. it should be Flanagan prosecutors improperly compared 4 In and murderers, thеreby implying defendants to two Nevada’s more notable impossible. example, prosecutor sought rehabilitation was For in Collier the (as promote might again a conclusion that the prison defendant kill had by prosecutor) the notable murderer cited and that he therеfore should be put inappropriate to death. This court found that such comments were and jury’s proper purpose. diverted the attention from its prosecutor compared In the case at bar the prospects the defendant’s negotiating Libyan Khadafy. rehаbilitation leader I do not see use creating prejudice of the simile as the kind of created in Collier prosecutor’s comparing Collier to Patrick McKenna. This case does not prejudice impropriety Flanagan. contain the level of in Collier found Here, general Khadafy, made a statement about but he did not pursue path passions continue to in such a manner to invoke the degree emotions of the proceedings against such as to render the inherently Haberstroh to be unfair. In Collier this court held that the trial court’s failurе to control the misconduct, prosecutorial closing argu- and the time limitation on ments, constituted errors which in combination with each other denied the sentencing hearing. Flanagan defendant fair the court held that the cumulative effect of the extensive misconduct suсh rather than concurring dissenting set forth the reason I not want to distract the reader from the margin point because do concurrence, namely *6 this sets out to writing overrule or announce to the major exception firmly established Collier, Flanagan Pellegrini, rule stated in without elaborat- a coherent new rule to be followed and without ing stating any reasons for the in our law that be intended effected changes might opinion. MAZZAN, Appellant,
JOHN FRANCIS NEVADA, THE STATE OF No. 18758 November denied, March
[Rehearing 1990] Evans, Reno, for Appellant. York Donald hearing fundamentally sentencing magnitude to render the defendant’s as similarly in which misconduct a case unfair. The case at bar is degree type here is of misconduct appears Since the issue. Flanagan, other errors as in coupled egregious and is not as view, not, my be set aside. need Haberstroh’s