127 P.3d 520 | Nev. | 2006
Petitioner Arie R. Redeker faces a capital murder trial. His petition for a writ of mandamus or prohibition challenges primarily the alleged aggravating circumstance that he was convicted of a felony involving the use or threat of violence to the person of another, based on his prior conviction of second-degree arson. Because this petition raises an important issue of law which requires clarification, we grant mandamus relief.
FACTS
In December 2002, the State charged Redeker by information with murder with the use of a deadly weapon, alleging that he strangled his girlfriend Skawduan Lannan to death with a ligature on October 22, 2002. Later that month, the State filed a notice of intent to seek the death penalty, alleging two aggravating circumstances: the murder was committed by a person (1) who was under sentence of imprisonment and (2) who had been convicted of a felony involving the use or threat of violence to the person of another. In regard to the second aggravator, the notice stated that Redeker had been convicted of second-degree arson for setting fire to his and Lannan’s residence in Las Vegas in June 2001. The notice gave no facts regarding the nature of the crime, simply stating: “The State will rely on the police reports, witness statements, charging documents, Judgment of Conviction, Guilty Plea Agreement and PreSentence Investigation Report associated with case Cl78281 to establish this aggravator.”
In December 2003, Redeker moved to strike the aggravating circumstances, arguing in part that second-degree arson was not a “felony involving the use or threat of violence to the person of an
On November 15, 2004, Redeker moved to dismiss the State’s notice of intent to seek the death penalty for failure to present the aggravating circumstances for a probable cause determination. The motion also contended that the State’s notice failed to conform to SCR 250(4)(c) and allege “with specificity the facts on which the state will rely to prove each aggravating circumstance.” The district court did not expressly decide the motion, and Redeker filed his instant petition with this court on April 15, 2005. Pursuant to this court’s order, the State filed an answer. We then directed the district court to enter a written order resolving Redeker’s motion of November 15, 2004. The district court entered an order denying the motion on December 21, 2005.
DISCUSSION
This court may issue a writ of mandamus to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously.
Additionally, this court may exercise its discretion to grant mandamus relief where an important issue of law requires clarification.
Alleging with specificity the facts supporting an aggravating circumstance
On its face the State’s notice of intent to seek the death penalty did not satisfy the requirements of SCR 250. SCR 250(4)(c) provides that the notice “must allege all aggravating circumstances which the state intends to prove and allege with specificity the facts on which the state will rely to prove each aggravating circumstance.’ ’ The notice in this case did not allege with specificity any facts to show that Redeker was previously convicted of a felony involving the use or threat of violence to the person of another, the second alleged aggravator.
The notice alleged in pertinent part:
On October 2, 2001, Defendant entered a guilty plea pursuant to the Alford decision to Second Degree Arson in Case Cl78281. The case arose out of an incident on June 9, 2001, in which Defendant set fire to the residence of Defendant and Skawduan Lannan at 9749 Manheim Lane, Las Vegas, Nevada. The State will rely on the police reports, witness statements, charging documents, Judgment of Conviction, Guilty Plea Agreement and PreSentence Investigation Report associated with case C178281 to establish this aggravator.
The State maintains that this notice “alleges specific facts of the date, guilty plea, title of the criminal offense, case number, victim’s name, location of crime and certain supporting documentation.” Some facts are specific: the crime is clearly identified by title, date, location, case number, and victim. This would be sufficient if the aggravating circumstance in question was that Redeker had been convicted of second-degree arson. However, the aggravator is that he had been convicted of a felony involving the use or threat of violence to the person of another. None of the alleged facts indicate how the second-degree arson was a crime of violence or threatened violence to the person of another.
A year after filing the notice, the State explained, in its opposition to Redeker’s motion to strike the aggravating circumstances, that it considered the crime to be violent because Redeker had made threats against Lannan’s life before burning the house. Later, the State also argued that the crime involved the threat of violence because the fire endangered neighboring homes. These specific facts are not alleged in the notice. Instead, to explain and provide factual support for the alleged aggravator, the State has relied on the documents, such as police reports, named in its notice. But a
Nevertheless, the State contends that any failure on its part to comply with SCR 250 “is not of constitutional moment” because Redeker had full knowledge and understanding of the specific facts that the State will rely on to prove this aggravating circumstance. Therefore, the State argues that it should be allowed to amend the notice “in the same manner as it is permitted to amend an information or indictment.’ ’ The State makes this argument at the same time that it flatly rejects Redeker’s contention that aggravators should be charged in an indictment or information after a grand jury or justice court has determined probable cause.
Prior conviction of a felony involving the use or threat of violence to the person of another
In opposing Redeker’s motions below and answering Redeker’s petition here, the State has made specific factual allegations regarding the prior-violent-felony aggravator. Even if these allegations had been properly charged in the notice of intent to seek death, we conclude that they do not support the aggravator.
NRS 200.033(2) provides in relevant part that a first-degree murder may be aggravated if it was committed by a person who “is or has been convicted of: . . . (b) A felony involving the use or threat of violence to the person of another.” The State argues that Redeker’s conviction of second-degree arson involved a threat of violence to his girlfriend Lannan, the eventual murder victim. Two questions arise in considering this argument. First, what evidence may be relied on to determine if a prior felony involved the use or threat of violence to the person of another? Second, does the evidence here show that Redeker’s arson involved such violence or its threat?
The first question is one of law, which this court has not previously addressed. NRS 200.033(2)(b) itself does not precisely define or specifically enumerate offenses that involve the use or threat of violence, nor does it indicate what evidence is appropriate to consider in determining which offenses fit into this category. Redeker contends that only the statutory elements of an offense may be considered to determine whether it involved violence.
However, the State has cited three judicial decisions that expressly permit the consideration of evidence underlying a prior felony conviction to determine whether the offense involved violence. The Supreme Court of North Carolina has held “that the involvement of the use or threat of violence to the person in the commission of the prior felony may be proven or rebutted by the testimony of witnesses and that the state may initiate the introduction of this evidence.”
In determining whether the statutory elements of a prior felony conviction involve the use of violence against the person ... , we hold that the trial judge must necessarily examine the facts underlying the prior felony if the statutory elements of that felony may be satisfied either with or without proof of violence.8
The Supreme Court of Florida ruled similarly regarding consideration of information from a presentence investigation.
Redeker and the State have also cited other judicial decisions that consider evidence underlying prior offenses but do not address whether reliance on such evidence is appropriate or should be limited in any way.
On the other hand, the Supreme Court of Arizona concluded that a sentencer may not look beyond the statutory elements of an offense in determining whether it involved violence or the threat of violence.
This reading of the statute guarantees due process to a criminal defendant. Evidence of a prior conviction is reliable, the defendant having had his trial and exercised his full panoply of rights which accompany his conviction. However, to drag in a victim of appellant’s prior crime to establish the necessary element of violence outside the presence of a jury, long after a crime has been committed, violates the basic tenets of due process.16
The Arizona Supreme Court also concluded that a felony based on recklessness did not constitute one involving the use or threat of violence on another person.
Redeker also cites Shepard v. United States, a recent decision by the United States Supreme Court that maintains a middle position as to what evidence a court can look to in determining whether a prior burglary was “generic,” or “violent,” under a federal sentencing provision.
In Shepard, the Court considered a prior burglary conviction based on a guilty plea. It held that under the ACCA a sentencing court “determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” and cannot “look to police reports or complaint applications.’ ’
We hereby adopt the approach taken by the Supreme Court in Taylor and Shepard in regard to determining whether a felony involved violence or its threat under NRS 200.033(2)(b). The language of NRS 200.033(2)(b) — regarding a prior felony “involving” the use or threat of violence — does not restrict the determination of the character of a felony simply to consideration of its statutory elements.
In this case, Redeker did not go to trial, so under Shepard we should look to the statutory definition, charging document, written plea agreement, transcript of the plea canvass, and any explicit factual finding by the district court to which Redeker assented to de
wilfully, unlawfully, maliciously and feloniously set fire to, and thereby cause to be burned, a certain dwelling house, located at 9749 Manheim Lane, Las Vegas, Clark County, Nevada, said property being then and there the property of SKAWDUA LANNAN, by use of open flame and flammable and/or combustible materials, and/or by manner and means unknown.
The information thus includes no allegations that Redeker used or threatened violence against anyone. And the plea agreement simply refers to the information and makes no factual allegations of its own regarding the arson. Consequently, the appropriate evidence does not show that Redeker was convicted of a felony “involving the use or threat of violence to the person of another,” as required by NRS 200.033(2)(b).
Given this court’s decision in Dennis,
In a statement Lannan wrote for police after the arson, she said that Redeker threatened her life on June 7, 2001, two days before the arson, and she and her children immediately moved out of their house to stay with her mother. Lannan also wrote that Redeker phoned her on June 9 and threatened her again. According to a fire investigator’s report, Redeker’s mother said that he made “a threat of violence to Ms. Lannan as well as a threat to burn the property,” apparently in a phone call to his parents on June 9.
During the hearing on Redeker’s motion to strike the aggravator, the prosecutor told the district court that “it’s the State’s theory that ... the arson was committed ... for the purpose of either intimidating this victim or perhaps killing her in the home itself. We don’t know whether the defendant was aware of the victim being in the house at the time or not.’ ’ The prosecutor also argued that Redeker “put this entire neighborhood in danger.” In denying the motion, the district court stated:
[I]t would seem that a threat was made involving arson and then, sure enough, arson occurred, and there is a probability — certainly not absolute certainty, but there’s certainly an arson — is fraught with the possibility of somebody being injured and so I’m going to conclude at this juncture that this aggravator would be allowed.
The arguments of the prosecutor and reasoning of the district court are faulty. First, the record does not support the prosecutor’s
Second, the prosecutor argued and the district court noted that arson carries the possibility that other people may be injured, but a risk of harm to other people is not equivalent to a threat of violence to a person. The record shows that at most the arson created a potential of harm to others; this does not constitute a “threat” under NRS 200.033(2)(b).
Finally, the evidence shows that Redeker made express threats against Lannan’s life, but in this case these threats were distinct from the arson. Both the threats and the arson reflected his animus toward Lannan, but that does not mean that the arson “involved” the threats. We believe that other factual scenarios of second-degree arson could support such involvement, if shown by evidence permitted under Taylor and Shepard. By way of illustration, if Lan-nan had been at the house, Redeker confronted her and threatened to harm her, she fled, and he then set the house on fire, then the arson would have involved a threat of violence. Or if Lannan had been in the house and Redeker knew that and set the house on fire with the intent to harm her personally, then the arson would have involved a threat of violence.
Here, by contrast, the arson did not rely on or constitute a threat against the person of Lannan. Even if the allegations made in the police and fire reports could be considered, allowing the ag-
CONCLUSION
The State’s notice of intent to seek death did not comply with SCR 250(4)(c), failing to allege with specificity any facts showing that Redeker’s arson involved the use or threat of violence to the person of another. Moreover, the facts alleged in this case do not support that aggravator. We conclude that mandamus relief is warranted and grant the petition in part. We direct the clerk of this court to issue a writ of mandamus instructing the district court to strike the alleged aggravating circumstance that Redeker was convicted of a felony involving the use or threat of violence to the person of another. We also lift the stay of proceedings below imposed by this court on April 29, 2005.
See NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).
NRS 34.170; Hickey v. District Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989).
See State v. Babayan, 106 Nev. 155, 175-76, 787 P.2d 805, 819 (1990).
Hickey, 105 Nev. at 731, 782 P.2d at 1338.
State v. Dist. Ct. (Epperson), 120 Nev. 254, 258, 89 P.3d 663, 665-66 (2004).
We have declined to address this contention by Redeker.
State v. McDougall, 301 S.E.2d 308, 321 (N.C. 1983).
State v. Sims, 45 S.W.3d 1, 11-12 (Tenn. 2001).
See Brown v. State, 473 So. 2d 1260, 1266 (Fla. 1985).
See Com. v. Christy, 515 A.2d 832, 840-41 (Pa. 1986); State v. Moore, 614 S.W.2d 348, 351 (Tenn. 1981); Hopkinson v. State, 632 P.2d 79, 170-71 (Wyo. 1981); Hadley v. State, 575 So. 2d 145, 156-57 (Ala. Crim. App. 1990).
116 Nev. 1075, 1082-83, 13 P.3d 434, 438-39 (2000).
Id. at 1082, 13 P.3d at 438.
Id. at 1082, 13 P.3d at 439.
State v. Gillies, 662 P.2d 1007, 1018 (Ariz. 1983); see also State v. McKinney, 917 P.2d 1214, 1228 (Ariz. 1996).
Gillies, 662 P.2d at 1018.
Id.
See McKinney, 917 P.2d at 1228.
Id. The Arizona Legislature has since amended the statute, eliminating this issue; the statute now mandates finding an aggravating circumstance when a defendant was previously convicted of a “serious offense,” which is defined by a list of specific crimes. See id. at 1229 n.6; State v. Martinez, 999 P.2d 795, 806 (Ariz. 2000).
544 U.S. 13 (2005). Under the federal statute, a burglary is a violent felony only if it is “generic burglary,” i.e., “committed in a building or enclosed space . . . , not in a boat or motor vehicle.” Id. at 16.
495 U.S. 575 (1990).
Shepard, 544 U.S. at 17 (quoting Taylor, 495 U.S. at 602).
Taylor, 495 U.S. at 600-01.
Shepard, 544 U.S. at 17.
Id. at 16.
Id.
Cf. Taylor, 495 U.S. at 600.
400 U.S. 25 (1970).
See 116 Nev. at 1082-83, 13 P.3d at 438-39.
The parties have cited as persuasive authority judicial decisions in cases that resemble but are not squarely on point with this case. Compare People v. Stanley, 897 P.2d 481, 517 (Cal. 1995) (upholding admission of evidence of a car arson as an offense that “involved an implied threat of violence against a person”), and Brown, 473 So. 2d at 1266 (upholding attempted second-degree arson as a felony involving the use or threat of violence to the person because the presentence investigation showed the arson was “based on a violent incident”), with State v. Franklin, 969 S.W.2d 743, 745 (Mo. 1998) (concluding that a conviction of felonious injury to a building based on dyna
See, e.g., Zant v. Stephens, 462 U.S. 862, 878 (1983) (“[Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty.”); Arave v. Creech, 507 U.S. 463 , 474 (1993) (stating that a statutory aggravating circumstance must provide a principled basis for distinguishing those who deserve a death sentence from those who do not).
Cf. Christy, 515 A.2d at 841 (“It is the ‘threat of and not the ‘potential for’ violence that brings a crime into this category [of a felony involving the use or threat of violence to the person].”).
Hadley, 575 So. 2d at 156 (emphases added).
Cf. Hopkinson, 632 P.2d at 171 (“ ‘Intimidate’ and ‘threat of violence to the person’ are not necessarily synonymous.”).
This scenario resembles the one in Dennis. See 116 Nev. at 1082, 13 P.3d at 439.
