Lord v. State

Warney in the vehicle from the claim no different uninsured, persuasive. therefore is Baker to recover addi- permitting Criterion also asserts coverage nullify would her UM/UIM from damages tional in The household exclusion policy. household exclusion making a claim for owner of the from policy precludes clause are only Such clauses valid bodily benefits. liability injury $15,000/ in are excess of coverage when the claim $30,000 by statute. Estate liability required insurance minimum Exch., P.2d 756 Ins. v. Farmers of Neal case because she applied never Baker’s (1971). The exclusion of insurance only required the minimum amount had procured law. Neal, of the insured’s members precluded the exclusion In benefits for which the insured liability recovering from household permitted should not Baker higher premium. had paid policy simply exclusion her because the household circumvent Therefore, may only Baker coverage. chose to less purchase she $15,000 may and she not stack injuries, for her own up recover upon benefits she policy of the same coverage the UM/UIM already has received. above, granting the order affirm the reasons stated For summary judgment. Criterion’s motion for LORD, Appellant, THOMAS RUSSELL v. THE STATE NEVADA, Respondent. OF

No. 20660 February 806 P.2d 548 McMahon, Lee Vegas, Las for Appellant. Elizabeth Frankie Del Papa, Attorney General, Sue Rex City; Carson Bell, District Attorney Henry, and William P. Deputy District Attorney, County, Clark for Respondent.

OPINION Court, Rose, J.:

By the (Lord) of Russell Lord Thomas appellant A convicted murder, deadly weapon with a robbery degree first three crimes: and/or murder. robbery to commit conspiracy and below, we affirm reasons set forth death. For Lord to sentenced therefor, but set aside sentences prison and the convictions hearing. for a new and remand of death sentence

FACTS (McDougal) McDougal Donald James co-defendant Lord and McDougal above. three crimes stated with the charged were crimes, to life first, and sentenced of all three guilty found tried Lord was Appellant the murder. parole with the possibility crimes, later, and of the same guilty found separately tried count, well as to terms prison on the murder to death sentenced two counts. the second trial, circumstantial following proved the State At Lord’s 5, 1988, was discovered man 51-year-old On October case. near the in Nevada Interstate 15 just off in the bushes dead Less than stab wounds. multiple He died of border. California Lord, 32, were identified later, McDougal, hours two California, driving pickup the victim’s away miles about 76 of a service manager Danny Young, highway. same truck on the California, he chased Lord testified 15 in on Interstate station station. When from his gas some they after stole McDougal for the them, gold ring a exchange offered to McDougal he caught he that further stated Young refused. Young which gas, and Lord and gas, the to for pay their truck impounded arrested The two were the desert. away into walked McDougal day. the next truck had numerous that the victim’s indicated testimony

Other victim’s it, the matching had blood that Lord stains in blood boots, did not match the blood and that one of his blood-type Vegas Metropol- Las McDougal. either Lord or of blood-type the that some (Hatch) testified Hatch David Police Detective itan dumped appeared was body where the at the scene boot-prints to the wearing. According the Lord was to boots “similar” case, McDougal only Lord not the theory of the stole State’s truck, money. and some gold ring ring, also the victim’s but However, never weapon and the murder were found. money the her wore testify was allowed to that son a the victim’s mother $25. her just recently she had wired son gold ring that the were turned inside out and the Additionally, pockets victim’s which, finger, a around one patch lighter victim had of skin he recently a indicated that had been according physician, to ring. wearing other than offering any without evidence

The defense rested where the victim was found. Based on the few of scene photos evidence, three guilty found Lord crimes jury above he charged. with which was the district denied a day hearing, judge of the penalty

On to half-day allow out-of-state defense for a continuance request witnesses, father, arrive testify to next including result, had out only planned As a Lord one of seven morning. part behalf As testify penalty hearing. witnesses to on his at case, Hatch Detective read the State’s had McDougal confession which co-defendant non-testifying returned a given Following hearing, pen- to police. murder. verdict of death on the count of alty Impo- now the convictions and sentence of death. appeals stayed pending appeal pursuant sition of the death penalty NRS 177.095. GUILT PHASE

LEGAL DISCUSSION OF error as assignments guilt phase, Lord makes eight which, conclude, warrants reversal of the convic- none of tions. misstatement evidence. Prosecutor’s Henry, William

During opening arguments, prosecutor, had prove McDougal exchange he would that offered to stated ring boot-prints body and that near the bore gas, “victim’s” Lord was Lord con- pattern wearing. the “same” boots these statements were error under Garner tends that two that, (1962) (holding during opening which stating must refrain from facts can- argument, prosecutor Here, at trial not testimony directly did proved). not be McDougal prof- ring that was the victim’s establish Further, say the boot-prints Detective Hatch could fered. (just “similar”), were the “same” and he admitted the boot- soil, Thus, in sandy were prints, very not reliable. we agree that evidence, Mr. Henry’s comments somewhat the overstated However, that this should be avoided. we need not decide if this was error under Gamer. Defense counsel utilized very his ample cross-examination and closing argument show that the State Further, conclusively proved not either of two these facts. was argument by instructed that counsel is not evidence. circumstances, Under these we conclude that any error on this was harmless under NRS point 178.598. Testimony victim’s mother. of

Lord it argues that was error for the court to allow the victim’s to testify, mother essentially because her appearance and testi- mony were more than is prejudicial probative. It error to allow the relative of a victim to where the testify testimony is not fact, needed to or to prove strengthen proof material giving rise to the inference that the relative’s appearance was contrived primarily to arouse the sympathy jurors; of such an unneces- sary appearance may during guilt phase prejudice Brown, as well. (Cal. People 1988). Brown, In of testimony the relative was purely collateral and, hence, Here, however, matters was error. the State correctly contends that victim’s mother’s testimony very pertinent to the circumstantial proof robbery. of Since the ring and the found, money were never the State needed this testimony prove Therefore, that these items were stolen. we cannot conclude that appearance this witness was contrived primarily to arouse sympathy jurors. testimony 3. Expert detective. that,

Detective Hatch was allowed to in his testify opinion, based on his law enforcement experience, injuries certain minor on Lord indicated that Lord had been in recently fight.

contends it that was error to this permit testimony on medical issue because qualified Detective Hatch was not aas medical expert. Without Detective law deprecating Hatch’s enforcement When, we are experience, persuaded by Lord’s contention. as here, immediately cause of is not injuries apparent, as to the opinion given by cause should be one qualified officer, medical a law expert, enforcement pursuant to Here, NRS 50.275. physician example, might have testi- fied on In apparent other cases where is point. that the no needed. A fight, opinion photograph in a is

victim has been will suffice to inform the argument and counsel’s injuries event, to 50.265 pursuant NRS is any layperson opinion In jury. the cause of these types vehicle to illuminate not an appropriate above, however, we cannot conclude that injuries. Despite rights. There was other this error Lord’s substantial prejudiced Additionally, by on cross-examination guilt. evidence of strong counsel, he uncertain Detective Hatch admitted that was defense that the wounds could have been how fresh the wounds were and accident, fight. rather than a by simple caused Doyle 4. violation. Claimed that, Detective out on re-direct examination of points Lord

Hatch, Henry Mr. three times asked Detective Hatch whether day Hatch met Lord on the Lord had identified himself when constituted an questions the arrest. Lord contends that these silence, to attempt post-arrest to draw attention Lord’s improper Ohio, Here, 426 U.S. 610 Doyle in violation of however, found reversible unlike the cases in which have violation, only to Doyle went upon questions error himself, identify give not his failure to an exculpatory failure to attempted never once to story. important, prosecutor More all, testimony. to this brief In argue any way or in refer back himself could be used identify a defendant’s failure to while silence, to call attention to this was not post-arrest improperly and, hence, rise questioning case did not present done in the Doyle the level of a violation. to impeachment Disallowed witness. testimony given Lord relates to the assigned The fifth error who Lord and manager Mr. the service station chased Young, During from the station. cross- McDougal they gas after stole examination, he “observed” the inside Mr. admitted that Young Later, on the victim’s truck when he it. impounded and outside of examination, why ascertain defense counsel attempted re-cross in the truck until the had not noticed the blood stains Young Young explained it. that he did not morning after he impounded truck was in an parked because it was night, notice the blood area, he night. Young and blood looks like dirt at said unlit truck, yes refused to answer to defense looked inside the but the interior that “inspected” as to whether he query counsel’s this, evening. sought impeach Young After defense counsel with a prior statement had made in Young McDougal’s trial that he “examined” evening. the interior of truck that Concluding issue, that this was impeachment on collateral district court refused to allow the Lord that it impeachment. argues was error for the court to disallow this impeachment. If Mr. Young had denied even looking into the truck that evening, certainly should have been permitted with impeach Young prior Here, however, inconsistent statement. See NRS 50.135. we need not reach the issue of whether the district court erred in determin- matter, ing this to be on a collateral impeachment because any error manifestly harmless. Since Young had admitted to truck, “observing” the interior of already defense counsel basis for ample arguing Young should have noticed blood stains before. The difference night between Mr. Young that he admitting “examined” versus “observed” interior of best, is truck at marginal especially light of Young’s credible explanation for he did not why notice the blood and in light of the other evidence guilt. of

6. Improper statements quantifying reasonable doubt.

Lord contends that Mr. Henry con- improperly quantified the cept during closing reasonable doubt argument by suggesting that having percent 90-95 pieces puzzle suffices to beyond convict a reasonable doubt. by Whether made the district or the judge prosecutor, this comment is under McCul- improper State, 72, lough (1983) (error v. Nev. 99 657 P.2d 1157 for district judge say that reasonable doubt meant about 75 percent certainty). to a Parties criminal case should assiduously avoid such attempts to quantify the of reasonable doubt. concept Never- theless, 46, State, Petrocelli v. citing 101 Nev. 692 P.2d 503 (1985), the State contends that prejudicial, error we In agree. McCullough, this court found the com- improper ment reversible in large part jury because also received an Petrocelli, improper written instruction on In reasonable doubt. contrast, this court that the judge’s concluded similar comment was not because the had received the prejudicial proper written definition of reasonable doubt mandated NRS 175.211 and because the elsewhere judge explained reasonable doubt Petrocelli, Here, fashion. as in proper jury received written proper Additionally, immediately instruction. after mak- statements, ing improper Henry proceeded Mr. state reasons, correct For statutory jury. definition to these cannot this prejudicial. conclude that error was property. stolen possession instruction Refused regarding guilt phase of error assignment

Lord’s seventh refused the district court. concerns a instruction request an instruc- grant refused to the defense district court namely the victim’s truck. of stolen possession property, tion on error under this court’s that the refusal constituted argues (1989). P.2d 1235 v. in Moore holding cases, included offenses are instructions on lesser In capital v. the defense. Beck requested by if constitutionally required Moore, Alabama, adopting People In 447 U.S. 1984), one (Cal. step this court went 674 P.2d 1303 Geiger, that, circumstances, a in some court must by holding further e., offenses,” related i. instructions even for “lesser grant are not are related to the offense but principal offenses which principal Specifically, lesser included offenses of the offense. court stated: have right jury presented has no general defendant [A] charged by to the crimes with a list of alternatives shopping However, the jury we hold that should prosecution. three on a offense when

receive instruction lesser-related (1) closely the lesser offense is are satisfied: conditions (2) theory of defendant’s charged; related to offense with a conviction for the related defense is consistent [lesser] offense; (3) evidence offense exists. lesser Moore, (citation omitted). P.2d at 1238-39 105 Nev. at under Moore. requirements

Lord has satisfied first two First, is offense of of stolen possession property the lesser related deadly with a charge robbery to the closely principal related robbery taking was the of the The evidence of weapon. strongest possession also involved in property and the truck is truck Kamin, v. People See also 275 N.W.2d 111 stolen property. held (defendant robbery; with court that (1979) charged was from the was larceny person offense of instruction on lesser Second, theory defense with a was consistent required). In closing argument, of stolen property. conviction for possession could have received the truck that Lord argued defense counsel committing the actual who stole it after from another person that, committing after argued counsel also murder. Defense murder, hitchhiking. Lord picked could have McDougal up there third and closest is whether was sufficient question

The of the crime of of stolen to warrant possession property evidence lesser, Before a non-included offense instruction this instruction.

may given there must be “some evidence jury, rationally record to conviction on the lesser offense.” support 1984) (citation Early, 692 P.2d People (Colo.App. omitted). court specify exactly Defense counsel did referring which statute he was to in of this instruction. support 205.2715, The State contends that the intended statute was NRS vehicle.” If taking which “unlawful motor this proscribes statute, was the intended the evidence does not an support This statute a more instruction this offense. concerns minor i.e., crime of the unconsented car joyriding, use of another’s “without intent to NRS 205.2715. permanently deprive.” Here, all that to return there is no evidence at Lord intended this away vehicle. The evidence an to drive from attempt shows Nevada; vehicle only Lord abandoned the because Mr. Young to. forced him 205.2715, it

Instead NRS seems clear that statute 205.275, referring counsel was to was NRS which pro- defense or “receiving, possessing withholding goods.” scribes stolen As out, Lord there is some evidence to conviction points support truck; (1) (2) crime: Lord driving on this was seen stolen McDougal ring, was who had the that Lord indicating possibly control only received of the truck from after McDougal hand, McDougal or someone other else robbed victim. On the 205.275 that the requires person NRS received stolen proof or have reasonably knew should known property, person stolen, property that the and that the was person acting instruction, gain. In requesting theory his own the defense murder, was that Lord had to do with the nothing robbery, theft The theory the initial of the truck. was that he received the murder, truck sometime after the and initial theft. Yet robbery Lord called no in his defense in Assuming witnesses this case. murder, with the is no direct nothing to do there evidence at all in the record that he had truck from received else, stolen, that he or should it was

someone knew have known gain. or that he had received the truck for his own personal of the truck at all blood stains the front cab were not obvious.

Thus, taking driving an innocent turns would not passenger necessarily know it vehicle. this is a Although was a stolen close not err conclude that district court did question, Kamin, 777, (it this instruction. See 275 N.W.2d was not refusing an instruc- give burglary error for the court to refuse to defendant no stolen because there was evidence receiving property, tion on as to the an essential element property, in the record value Moore, 1235, (James crime); 776 P.2d of the cf. an instruction requested was murder and

Mayfield charged with merely accessory was an after the that he possibility to cover fact; indicating Mayfield evidence that was considerable there after the initial attack and that the was until sometime present not to Mayfield help dead before arrived victim could well have been short, far evidence than in body; of the in there was more dispose instruction). to present support case Validity reasonable doubt instruction. is on given of error instruction assignment Lord’s final doubt, set in NRS the definition forth reasonable which followed 175.211, a was held because similar instruction improper was Cage United States Court in Supreme unconstitutional Louisiana, (1990). We do not find the instruction 111 S.Ct. 328 to standard definition in to be similar Nevada’s given Cage Cage in and therefore the is not opinion contained the instruction controlling in this case. no we note that made

Preliminarily, objection Normally, doubt. given proper objec- instruction on reasonable issue considering appeal. to our prerequisite tion is However, Riddle v. Nev. 613 P.2d we elect proportions, since this issue is of constitutional address now. given instruction contends that the reasonable doubt due clauses of the fourteenth process case violates the I, States Constitution and article section

amendment of the United instruction stated: 8 of the Nevada Constitution. innocent until is presumed contrary The defendant is the State the burden proved. presumption places upon This every a reasonable doubt material element beyond of proving defendant is the charged person of the crime oifense. who committed the is on reason. It is not mere A reasonable doubt one based is such a would or possible govern doubt but doubt as life. If the the more affairs of weighty control.a person and consid- jurors, comparison minds of the after entire evidence, that they are in such a condition eration of all of the abiding an conviction of truth say they can feel to be reason- there is not a reasonable doubt. Doubt charge, substantial, merely not possibility be actual and able must speculation. have reasonable doubt you

If defendant, guilty. is to a verdict he entitled

39 This instruction was based on NRS 175.211.1 We have held statutory that a reasonable doubt instruction based on our defini violate due Cutler v. process. tion does not See 566 P.2d We must examine this conclusion in 809 of the recent Court decision. light Supreme trials,

In the Court Cage, stated that state criminal “[i]n Due Clause of the Process Fourteenth Amendment ‘protects accused conviction against except upon proof beyond a reason- able doubt of fact to constitute the every necessary crime with 358, 364, charged.’ which he is In re U.S. S.Ct. Winship, 497 1068, 1073, (1970).” 25 L.Ed.2d Cage at 329. The Court then went on to hold that the trial court’s reasonable Louisiana doubt instruction was defective constitutionally because a reason- able could have the instruction to allow a juror interpreted finding guilt of based on a of below that the Due degree proof required by Id. The Process Clause. instruction in relevant provided part: you “If entertain a reasonable doubt as to fact or necessary element to constitute the guilt, defendant’s it is your duty give him the benefit of that return doubt and a guilty. verdict of not Even where the evidence demonstrates a probability guilt, if it does not establish such guilt doubt, beyond you reasonable must acquit accused. doubt, however, one; This must be a reasonable that is one that is founded a real upon tangible substantial basis and not mere upon and It must be such doubt caprice conjecture. give

would rise to a grave uncertainty, raised in mind your by reasons of the character of the unsatisfactory evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. It is a doubt that a man seriously reasonable can entertain. What is required is not an absolute or mathematical certainty, but a moral cer- ” (La. tainty. 1989) State v. 554 So.2d Cage, (empha- added). sis

Ibid. instruction, Cage

In construing decision considered jurors might charge how reasonable have understood the as a 1NRS 175.211 states: 1. A reasonable doubt is one based on reason. It is not mere doubt,

possible govern but is such a person doubt as would or control a weighty in the more jurors, affairs of life. If the minds of the after the evidence, comparison entire and consideration of all the are in such a they say they abiding condition that can feel an conviction of the truth charge, there is not a reasonable doubt. Doubt to be reasonable substantial, possibility speculation. must be actual and not mere given by 2. No other definition of doubt shall reasonable juries court to in criminal actions this state. and the words “substantial”

whole. The Court stated that evidentiary than certainty” with “moral rather “grave,” coupled juror finding cause a make a could reasonable uncertainty Id. at below 329- degree proof required. based on whole, as a the Court struck reviewing instruction After of the three on the combination terms. down based lan- that both instructions contain argues comparable and How- contain words “actual substantial.” guage; both ever, distinguishable Louisiana instruction is language NRS 175.211 the instruction from that of Nevada. Although case also includes the statement doubt must be actual whole, substantial, taken as much gives instruction has to the words. This court consid- meaning previously different 175.211, ered of NRS language rejecting the “substantial doubt” the that it diluted the State’s burden of Buckner argument proof. 117, Nev. 590 P.2d 628 We do not believe the language the substantial doubt alone containing Nevada definition The Nevada does not should make unconstitutional. instruction use such or to strong language “grave” certainty” “moral Rather, uncertainty acquittal. the for an doubt quantify required Nevada must be actual and substantial in before an acquittal This much less definition of should be returned. is a restrictive reasonable doubt than Louisiana’s. Nevada similarly objects

Lord instruction’s statement juror that there no doubt if the an “abiding is reasonable has The charge. conviction” of the truth of the Louisiana instruction on doubt did not when a conviction should be reasonable state returned, another when there put way, or is not a reasonable instruction, by doubt. is done the standard but we do This Nevada the “abiding charge” think the conviction truth of dilutes the definition of reasonable or that it language doubt the burden of to This lan- prosecutor’s proof reduces convict. guage the Nevada not an quantify in instruction is to attempt doubt, define language reasonable as was the in the Louisiana Supreme objectionable. instruction that the Court found Cage limited to the holding interpretation Because is single that is not similar the instruction Louisiana instruction to Nevada, on given reasonable doubt we hold that the in this given satisfy instruction case and NRS 175.211 the due the United process requirements both States and Nevada Constitution.

LEGAL DISCUSSION OF PENALTY PHASE 1. request half-day Denial continuance. defendant’s court district abused its discretion that the contends first to half-day for a continuance request the defense denying testify to Maryland from witnesses six out-of-state permit We morning. agree. next trial, 23, 1989, Wednesday before On August to The trial was call for this case. its calendar court conducted ,on counsel informed Monday. Defense following start on arriving witnesses five or six out-of-state that he had court to ready testify who would be of trial week Thursday night The morning. judge suggested Friday on hearing penalty ready testify to to have the witnesses try counsel defense be finished would probably Thursday, guilt phase because call, however, the district court calendar Later in the Wednesday. time, under- stated that it the court Lord’s case. At

recalled be “flexi- that it would transportation the “hazards” of stood Indeed, district judge scheduling penalty phase. ble” on week until the continue the might penalty that he suggested scheduling The next discussion after the guilt phase. Tuesday, August on witnesses came defense penalty time, that it made it clear the court of trial. At day the second hearing the penalty defense witnesses for all the require would Thursday. testify on ready and the evening, Wednesday guilty Lord was found August Thursday, a.m. on at 11:30 hearing began move the witnesses’ up been unable to that he had Explaining court to allow requested defense counsel arrangements, travel morning. him the next witnesses the out-of-state present whether there as to inquiring without request court denied this denial, the of this As a delay. consequence cause for good Mr. Lord’s witnesses. planned out seven only heard one of witnesses, were including father, Lord’s The six out-of-state without the out-of-state behalf. Even to on Lord’s testify unable witnesses, hearing concluded testimony at the the defense at five was submitted and the case Thursday afternoon p.m. to home at 6:30 go jury adjourned The evening. o’clock that a.m., verdict of death returned a the jury The next at day, 9:45 judge district presiding whom the judge, district before another the verdict. had to take requested in part new trial based a motion for later filed Defense counsel was an to the motion Attached of the continuance. on the denial attested office. Coe the defender’s public Joan Coe of affidavit of trial, move the up to that, attempted she had the week of during witnesses, further stated She but was unsuccessful. arrivals her that their told able to reach she was that the witnesses why other reasons gave change, permit would not schedules to their Also attached the

they change plans. not travel could them- new trial were affidavits from the witnesses motion for Thursday evening arrived on confirming they selves had Friday morning. testify were available to on of a motion for a granting that the or denial parties agree See, the court. is in the sound discretion of district continuance (1978); Nev. 573 P.2d 1174 see e.g., Zessman case, the judge also 174.515. In the district abused present NRS to for a by refusing grant request this reasonable discretion First, to the court and the prejudice modest continuance. to, most, at what amounts half- justice administration of due to If six day continuance minimal. other witnesses appears would have lasted present Thursday, proceedings been on until unless the district conducted court Friday anyway, judge Thursday evening. why judge into It is unclear district would Second, to morning. prejudice not be in session the next readily was The court had been informed that apparent. defendant five or six out of the seven defense witnesses were involved. fully Third, diligence does not lack of on the part the record show counsel sufficient to the denial. The discussion justify of defense Wednesday call had left the during previous calendar on at “flexible.” Based scheduling unresolved or least on dis- cussion, to not unreasonable for Mr. Lieberman believe willing to reschedule the for penalty phase that the court would necessary. judge’s sug- the next week if The district remarks days, if could be concluded in three he that Lord’s trial gested try Thursday able criminal case on might be to another Friday, until the next week. Alter- deferring penalty phase longer if Lord’s trial went than then Lord’s natively, expected, Friday From the might required anyway. witnesses not be until record, defense counsel did not realize that facts contained presence would the witnesses’ until after the judge require Thus, Tuesday, day on the second of trial. the defense discussion had, most, rearrange flight plans two to their days at were out-of-state Maryland. Additionally, witnesses from these Finally, had earlier subject subpoena. judge witnesses to he Yet problems transportation. stated that understood the later, although shortly busy Day it was before the Labor week- end, whether, example, not even into judge inquire did flights. had been unable obtain seats earlier witnesses held for reasonable continu- This court has denials of motions ances be an abuse of discretion where the purpose delay witnesses and the is not the procure important motion is See, parties. e.g., Colgain fault of counsel v. particular

43 State, State, 220, (1986); v. 101 719 1263 Banks (1985). The same considerations of Nev. 710 P.2d 723 greater must with even force justice apply fairness and substantial case, of a even at the of some penalty phase capital expense and, indeed, court inconvenience to the calendar of district in some small is the fault of counsel. delay, degree, even if the incriminating during 2. Admission of co-defendant’s confession penalty phase.

Lord further contends that was error for the district court to to read to the transcript allow Detective Hatch We McDougal’s during penalty phase. agree confession this was error as to the prejudicial penalty phase. conclude that he and Lord McDougal gave police this confession after during were Because the confession was not made arrested.

course of the to the conspiracy, co-conspirator exception 51.035(3)(e). NRS Presum- hearsay rule was See inapplicable. reason, during for this the confession was not admitted

ably at the guilt only penalty phase. Although McDougal phase, earlier, trial, testify testified in his he did not at separate of Lord’s trial. phase hearsay admitting non-testifying

Absent some co- exception, co-defendant against during defendant’s confession another right violates the sixth amendment to con- guilt phase generally States, frontation. Bruton v. United 391 U.S. 137 here is whether the Bruton rule applies penalty issue Bruton of admissibility of a case as well. The under phase capital during penalty a confession of a co-defendant non-testifying case is a of first in this question impression of a phase capital state. of the Florida correctly Supreme cites to two decisions penalty which hold that the rule of Bruton applies Court case, guilt as well as in the See Walton capital phase. denied, (Fla. 1986), cert. v. 481 So.2d death, (1990) stating sentence of (reversing

S.Ct. 759 “[t]he to confront the witnesses sixth amendment of an accused right right applicable only him is a fundamental which is against sentencing but in the phases phase, accord, Gardner, (Fla. 1985); well”); 480 So.2d see State 1985) Williams, (Tenn. (reversing also State v. 690 S.W.2d circumstance in because aggravating penalty phase finding Bruton). The Cal circumstance violated evidence supporting conclusion, stating: reached the same ifornia Court has Supreme 44

“We agree (1965)] that Aranda v. Aranda 407 P.2d [People 265 and Bruton apply penalty phase a criminal proceeding. The timely of the cross-examination importance right has been sufficiently by this court and the emphasized United States Court and no Supreme requires prolonged discussion.” v. People (Cal. 1970) (en banc) Floyd, (citations omitted), 464 P.2d 80 denied, cert. 406 U.S. 972 Without citing any authority point, on the State argues that right of confrontation should not at a apply capital penalty phase, given the breadth of hearsay evidence admissible during penalty phase under NRS 175.552. We disagree. Although argued here, there are some factual situations in which Bruton has been Israel, held not 2 apply. generally See La Fave & Criminal 17.2(b) (1984). Procedure Additionally, Bruton errors have § been held to be subject analysis. harmless error Harrington v. California, (1968). Nevertheless, U.S. 254 395 the need for cross-examination to test the fundamental reliability of co- defendants’ often suspect statements is no less great than in the phase guilt In accord with phase. the California Court, we Supreme right conclude that the of cross-examination and the need for are accuracy as indeed more important, impor- tant, in the than in the penalty phase We phase. recognize that at least one court2has suggested that Bruton does not apply in the penalty phase, but this is not position persuasive. does not sentencing that since contends

The State further need for cross- there is less of guilt, question involve the because, either, is not persuasive argument examination. This the confession admits, introducing clear purpose the State may have had doubt the lingering any alleviate was “to ” added.) McDougal guilt. (Emphasis verdict of concerning their trial, but the cross-examination separate in his testified cross-examination for was no substitute in that trial prosecutor Lord’s trial. counsel at Lord’s defense Again, error was harmless. argues further The State Here, cementing central in the confession disagree. two jurors. Only of the in the minds case circumstantial State’s State Hatch testified besides Detective witnesses other violent prior Lord’s lack given Especially phase. the penalty possi no “reasonable there was crimes, conclude that we cannot error. this constitutional result absent favorable of a more bility” 1988), (Cal. cert. Brown, 1144-45 v. People See denied, possibility” “reasonable (1989) (stating S.Ct. 1329 of constitutional of errors analysis error harmless standard for law). (Wash. 1982) (en banc).

2See State P.2d 6 Grisby, Since we have concluded that the penalty must be reversed, we need not reach Lord’s remaining assignments of error as to the penalty phase.

CONCLUSION We conclude that the errors assigned by do not require reversal of the guilt phase. must be penalty phase reversed First, for two reasons. the district court abused its discretion in the reasonable denying defense for a request half-day continuance to allow penalty phase out-of-state testify witnesses to behalf, Second, Lord’s and this prejudiced Lord. in a question of first impression, hold that the rule of Bruton with applies equal force the during penalty phase of a capital case. reasons, convictions,

For these we affirm three and we affirm the prison sentences for imposed robbery with a deadly weapon and to commit conspiracy robbery and/or murder. We reverse the sentence of death and remand this case for a new penalty hearing newly before a impaneled jury pursuant NRS 177.055(3)(b)(l). Springer J., Young, JJ., C.

Mowbray, and concur. J., Steffen, in concurring part and in dissenting part: I concur in all of the aspects majority with the opinion excep- tion of the opinion’s ruling concerning Bruton issue in the view, penalty of my Lord’s trial. In the issue is of sufficient importance warrant an expression of dissent. States, ruling (1968), Bruton v. United 391 U.S. 123

was directed to the specifically guilt phase of a defendant’s trial and prohibited admission of a co-defendant’s confession against another co-defendant absent an applicable exception to the hearsay rule. The Bruton rule vitality has retained its context of forums constituted to determine the issue of overriding innocence or guilt because it is of critical importance that a determination of occur guilt within the degree of certitude reflected by the State’s evidentiary proof beyond burden of a right reasonable doubt. The of the defendant to capital confront and cross-examine a may co-defendant who seek to minimize his own involvement at the expense defendant is consistent with high qualitative demands on evidence competent evaluation aby jury in its determination of innocence or guilt. reached, Once a guilt however, determination of has been warranted, focus shifts to the form of punishment given the character specific background and of the defendant and the cir- gravity cumstances and of the crime committed. my

I of strongly disagree with assessment brethren Bruton are majority suggesting impor- constraints even more than in guilt phase capital tant to the of penalty phase and criminal penalty phase trial. Bifurcated defendant’s may case a sentence of death to the where capital trials are unique of is the the trial penalty phase be Absent from imposed. innocence or Guilt guilt. threshold determination of compelling determined, facing has been and the task trier of fact is bearing upon confined to an evaluation of evidence the nature and extent punishment particular of deserved defendant particular his crime. punishment may

With the nature respect imposed law, find, doubt, beyond must a reasonable under Nevada defined cir- presence statutorily of one or more aggravating as a sentenc- requisite availability cumstances as death 791, ing Gallego alternative. See When aggravating circumstances have exist, been found to the defendant is thereafter scrutinized to his Id. according individual characteristics. “This process is mitigating facilitated consideration circumstances other relevant to the life of the defendant as a whole reliable factors authority then render an informed person. Only may sentencing based crime and the defendant who committed judgment upon the it.” Continuing, Id. at 711 P.2d at 862-63. we declared that the death survives the option balancing aggravat- “[i]f circumstances, ing mitigating and Nevada law consider- permits by ation the of other evidence relevant to sentencing panel Whether sentence. NRS 175.552. such additional evidence will admitted determination reposited be is a in the sound discretion of Id. the trial judge.” for statutory sentencing procedure capital

Under Nevada’s cases, has latitude to enable Legislature provided juries to fully concentrate on factors related to a defendant’s character and thus that: provides record. The of NRS 175.552 language is murder of finding guilty that defendant Upon shall conduct a hear- degree, separate penalty first the court to whether the shall be sentenced to ing determine defendant death or to life with or without imprisonment possibility hearing, ... evidence may presented In parole. and rela- concerning mitigating circumstances aggravating offense, to the victim and other tive defendant or sentence, to matter which the court deems relevant whether ordinarily or not the evidence is admissible .... Emphasis consistently We have that the supplied. recognized clear statutory effect of referenced is for provision to allow the

47 inadmissible, “which is otherwise of evidence introduction of conduct” character and instances including special evidence of of the appropri- to the determination jury’s because it is “relevant State, Nev. v. 104 Pellegrini for a crime.” capital ate sentence State, 484, 625, 630, (1988). Emil v. 105 P.2d 488 See also 764 627, State, 858, (1989); v. 101 Nev. Milligan P.2d Nev. 784 956 State, 573, P.2d (1985); v. 101 Nev. 707 P.2d Jones 708 289 Moreover, in Nevada that the (1985). it is well established 1128 criteria, relevance, admissibility of evidence in addition to credible, that it be and not dubious in the is penalty phase Jones, 578, 1132; Biondi v. 101 Nev. at 707 P.2d at tenuous. See 1062, State, 252, 257, (1985); v. Allen 665 P.2d It is clear to Nev. me, therefore, referred to accuracy” that “the need for is not more so in the manifestly majority, although important, If by majority. as declared guilt phase, than the penalty phase correct, the latitude accorded by were majority’s premise court, would be recognized by and repeatedly NRS 175.552 Instead, the latitude embraces such evi- statutory unacceptable. during would be inadmissible hearsay dence as is not tenuous or dubious. hearsay phase, providing case, allowed'to read to the Detective Hatch was In the instant co-defendant confession. McDougal’s transcript reached guilty already corroborated the determination confession trial. The of Lord’s guilt phase and laid to rest confes- McDougal’s the introduction successfully sought State jury’s concerning conviction solidify sion order both viewed the confession as obviously The trial guilt. judge than tenuous source of detail and a less probative credible rulings crime. Under our prior the commission of the concerning above, to either admit or the trial had the discretion judge cited confession, that there is an I am of the opinion exclude the the trial court’s court to conclude that basis for this inadequate Moreover, I agree abuse of its discretion. constituted an ruling Bruton determination that with the Court’s Washington Supreme case. See State capital not apply does (Wash. 1982) (en banc). P.2d 6 Grisby, 647 why apply reason Bruton should There is an additional Nevada, trial Nevada law. In if a at least under penalty hearings, convict, being evidence as insufficient judge views State’s advisory acquit. instruction may non-binding issue a judge If, with the disagrees the trial guilty, judge after a verdict of evidence, judge may grant conflicting resolution of jury’s ruling sufficiency on the defendant a new trial. A post-verdict on disposition to this court for the evidence must be addressed Wilson, P.2d 104 Nev. 760 129 See State v. appeal. verdict, case, granting no advisory there was no In the instant trial, by appeal this court and no determination of a new support was insufficient to its jury the evidence considered therefore, finally guilt that Lord’s has been apparent, verdict. It is when it by the trial court It was so determined determined. issuing without penalty phase to a proceed the trial permitted a new trial. granting instruction or advisory an not fit to intervene in that the trial court did see Given the fact to me proper it seems guilt, determination of Lord’s jury’s confession as further the co-defendant’s that the court allowed guilty of the verdict. jury’s of the correctness corroboration jury already placed reinforced what merely confession rest, with greater precision to focus thereby jury enabled deliberations. penalty-phase of its legitimate purposes on the Indeed, anew remand upon when the matter is considered necessarily will be informed that Lord’s jury, different not be reconsidered. See may has been determined and guilt (1990) (because P.2d v. Jimenez was affirmed on defense counsel was guilty appeal, verdict new during pen- defendant’s innocence argue capital entitled to the new jury The effect of such an instruction to alty hearing). the confirmation of essentially hearing will be the same as I therefore conclude the co-defendant’s confession. must through hearing where the place penalty that the Bruton rule has no bearing would have no on a determina- co-defendant’s confession or guilt. tion of innocence above, from that respectfully I dissent specified For the reasons Bruton error to a ruling applies part majority’s I concur that In all other respects, case. capital to a verdict of pursuant entered judgment properly of death must be vacated and the and that the sentence guilty, where Lord’s sentencing hearing remanded for a new matter on his behalf. may witnesses heard NEVADA, Appellant, THE STATE OF Respondent. BANDICS, ERNEST J.

No. 21181 7, 1991 February

Case Details

Case Name: Lord v. State

Court Name: Nevada Supreme Court

Date Published: Feb 7, 1991

Citation: 806 P.2d 548

Docket Number: 20660

Court Abbreviation: Nev.