KELLY EUGENE RHYNE, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 36064
Supreme Court of Nevada
January 16, 2002
Rehearing denied March 6, 2002
38 P.3d 163
BECKER, J., with whom ROSE, J., agreed, dissented in part.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District Attorney, and Alvin R. Kacin, Deputy District Attorney, Elko County, for Respondent.
By the Court, MAUPIN, C. J.:
Kelly Eugene Rhyne appeals from a judgment of conviction, entered pursuant to a jury verdict, of first-degree murder and from a sentence of death.1
After careful review of the record on appeal and all of Rhyne‘s claims of error, we conclude that the district court erred by intervening in Rhyne‘s relationship with his attorneys but that Rhyne is estopped from complaining because he invited the error by seeking the district court‘s permission to call a witness despite his attorney‘s disagreement. We reject Rhyne‘s claims that the prosecutor committed misconduct warranting reversal, and we conclude that the death sentence was appropriately imposed. Rhyne‘s remaining contentions are either without merit or are unsupported by cogent argument and authority.
STATEMENT OF THE FACTS
At around 9:00 p.m. on the night of October 31, 1998, Kelly Rhyne arrived at what was then known as the Miner‘s Camp bar. James Mendenhall and the victim, Donald “Lobo” Brown, were also at the bar. An auction was taking place at the bar, and people were drinking and bidding. Photographs taken during the auction and eyewitness testimony confirmed that Rhyne was wearing a red t-shirt, a black vest, jeans, a black jacket, and white high-top tennis shoes. Mendenhall was wearing a denim shirt, a cap, and boots.
Sometime before 10:00 p.m., a patron at the bar overheard Rhyne say to Mendenhall, “I hate that f-ing guy.” Mendenhall replied, “Don‘t do anything in here. We‘ll wait until he gets outside.” The patron ultimately concluded that Rhyne and Mendenhall were referring to the victim, Donny Brown. After the auction ended, Brown and Rhyne were seen leaving the bar a few minutes apart. Mendenhall then became involved in an altercation near the front door of the bar. After the altercation, Rhyne returned, asked Mendenhall if he was okay, and then left the bar with Mendenhall. When they returned later, Mendenhall‘s shirt had blood on it. He removed it and placed it over a chair. Rhyne later retrieved the shirt and again left the establishment. Later, via aerial search, police found the shirt on the roof of a building near Rhyne‘s residence.
At around 1:00 a.m., a porter at a nearby hotel observed two men place a body in a dumpster. Police later found the body of Donny Brown in the dumpster, apparently beaten to death. His head had been crushed, and there was a large v-shaped indentation in the side of his head that matched the lug of Mendenhall‘s
When police contacted Rhyne at his residence at around 3:00 a.m., he was alert and cooperative. Rhyne maintained that he had arrived at the bar around 9:00 p.m. and left only once to get cigarettes at around 12:00 a.m. Rhyne allowed police to search his room and told them he had been wearing a pair of workboots that night. But the boots Rhyne pointed out had no blood on them, and police found nothing incriminating in the residence.
When the police returned to Rhyne‘s residence at 8:00 a.m., he voluntarily accompanied them to the police station and gave a statement. He again maintained he had been at the bar all evening and had only left once to purchase cigarettes. He denied spending time with Mendenhall and denied leaving with him at any time. The police arrested Rhyne after the interview.
During Rhyne‘s interview, police located Mendenhall, who accompanied the police to the station and was ultimately arrested. DNA tests revealed a substantial amount of Brown‘s blood on Mendenhall‘s clothes and boots. A small amount of Brown‘s blood was also found on Rhyne‘s pants, jacket, and on his ring. The white tennis shoes Rhyne had been seen wearing and his red shirt and black vest were never found.
The State charged Rhyne and Mendenhall with murder, felony murder, robbery, and conspiracy to commit murder and filed notices of intent to seek the death penalty against both men. On August 8, 1999, the district court granted a motion to sever the trials, and on August 31, 1999, Mendenhall entered an Alford2 plea to one count of second-degree murder and one count of conspiracy to commit murder. The State agreed not to oppose concurrent sentences, and Mendenhall agreed to provide a written statement regarding the incident. He also agreed that he could be called to testify at Rhyne‘s trial, but that his testimony was not part of the plea negotiations. Mendenhall ultimately testified against Rhyne.
The jury trial began March 15, 2000. Much of the incriminating evidence presented at trial has already been noted: Rhyne‘s professing hatred toward Brown on the night of the murder and Mendenhall‘s ominous response; the suspicious disappearance of the shoes, shirt, and vest that Rhyne was wearing that night; the presence of the victim‘s blood on Rhyne‘s pants, jacket, and ring; and Rhyne‘s false statement to police that he had never spent time with or left the bar with Mendenhall. In addition, Mendenhall testified and incriminated Rhyne while denying his own culpability. According to Mendenhall, after his altercation by the door of the bar, Rhyne came to the door and called to him to come outside.
The jury returned a verdict convicting Rhyne of first-degree murder and conspiracy to commit murder, but acquitting him of robbery. At the close of the three-day penalty phase the jury returned a sentence of death. The jury found the three aggravating circumstances alleged by the State: torture or mutilation, a prior conviction for battery by a prisoner, and a prior conviction for attempted assault with a deadly weapon. The jury found two mitigating circumstances: the murder was committed while Rhyne was under an extreme mental or emotional disturbance, and Rhyne has suffered a serious mental disorder during his life as a result of his long struggles with bipolar disorder and problems taking his medications. The jury found that the mitigating circumstances did not outweigh the aggravating circumstances and imposed a sentence of death. On May 1, 2000, the district court entered a written judgment of conviction and sentence of death pursuant to the jury‘s verdict. This automatic appeal followed.
DISCUSSION
The district court‘s interference in Rhyne‘s relationship with his attorneys
During the guilt phase of the trial Rhyne and his attorneys reached a point of disagreement over whether a witness, Chris Brodhecker, should be called to testify. Rhyne wanted Brodhecker called as a defense witness, while Rhyne‘s counsel felt Brodhecker was unreliable and would potentially cause the defense case more harm than good. Brodhecker was incarcerated with Mendenhall prior to the trial and proposed to testify that Mendenhall had essentially confessed to him to acting alone in killing Donny Brown.
On March 28, 2000, the district court held an ex parte hearing with Rhyne and his counsel to discuss the dispute. At the hearing, the district court inquired extensively into Rhyne‘s reasons for wanting to call Brodhecker and into counsel‘s reasons for not
On appeal, Rhyne claims the district court should not have allowed him to direct the actions of his counsel or should have canvassed him regarding his right to represent himself. We conclude that the district court erred by interjecting itself into the attorney-client relationship. And we take this opportunity to recognize the well-established rule that while the client may make decisions regarding the ultimate objectives of representation, the trial lawyer alone is entrusted with decisions regarding legal tactics such as deciding what witnesses to call:
Once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate—and ultimate—responsibility of deciding if and when to object, which witnesses, if any, to call, and what defenses to develop.3
Indeed, Justice Harlan has also suggested that “a lawyer may properly make a tactical determination of how to run a trial even in the face of his client‘s incomprehension or even explicit disapproval.”4 Only the defendant, of course, can make certain fundamental decisions regarding the objectives of representation, such as whether to present a defense of not guilty by reason of insanity.5 However, with few exceptions, the means of representation, i.e., trial tactics, remain within counsel‘s control.6
In a case apposite to this one, the California Supreme Court upheld a trial court‘s denial of a defendant‘s request, not joined in by counsel, to present certain evidence at a capital trial.7 The court explained that except for the defendant‘s exercise of fundamental rights, like the right to testify, “an attorney representing a
Thus, the district court should not have attempted to resolve the dispute between Rhyne and his counsel. Defense counsel was entitled to decide whether or not to call Brodhecker.
The district court error notwithstanding, we also conclude that under the facts of this case, Rhyne is now estopped from raising this claim on appeal because he invited the error by asking the district court to allow him to call the witness.12 The district court thoroughly canvassed Rhyne regarding the attendant risks of calling Brodhecker, Rhyne clearly sought to call Brodhecker notwithstanding those risks, and Rhyne cannot now be heard to complain that he received exactly what he asked for. Rhyne also challenges the district court‘s interference during the penalty phase. At Rhyne‘s insistence, and over defense counsel‘s objections, the district court prohibited defense counsel from presenting the testimony of three doctors and Rhyne‘s mother. Again, the record reflects that, while the court should not have intervened, Rhyne was aware of his counsel‘s concerns, and we conclude that Rhyne is estopped from raising the issue now.
Finally, we note that at no time did Rhyne ask to represent himself; therefore, the district court did not err in failing to conduct a Faretta canvass.13
The premeditated murder and felony-murder instruction
The district court instructed the jury that it could convict Rhyne
The United States Supreme Court has held that a jury may return a general guilty verdict on an indictment charging several acts in the alternative even if one of the possible bases of conviction is unsupported by sufficient evidence.14 Specifically, as long as both theories are legally sufficient, the verdict will stand even if one theory is ultimately found to be factually unsupported by the evidence.15 We have applied this principle to charging alternative theories of first-degree murder.16 Regardless of whether there was sufficient evidence of robbery, there is sufficient evidence to support a verdict of premeditated and deliberate murder.17 Rhyne was properly convicted of first-degree murder.
Prosecutorial misconduct
Rhyne offers several allegations of prosecutorial misconduct by the State that he claims warrant reversal. None of these claims has merit. Specifically, we first conclude that the State committed no error in asking the jury to draw a reasonable inference that Rhyne‘s tennis shoes had disappeared by his own action because they were incriminating.18 We further conclude that the State‘s brief reference in closing arguments to Rhyne‘s failure to produce his white tennis shoes and thereby “prove himself not guilty” did not implicate his post-arrest silence. The remark improperly suggested that Rhyne bore some burden to prove innocence, but it was brief, and the prosecutor immediately corrected himself and advised the jury that Rhyne bore no such burden. We conclude that the remark did not prejudice Rhyne.19 The prosecutor did not
Rhyne‘s contention that the State improperly relied on Mendenhall‘s testimony is also without merit. The jury was fully informed of the circumstances of Mendenhall‘s plea agreement and was capable of evaluating Mendenhall‘s version of the facts.
We also reject Rhyne‘s complaint of excessive pretrial publicity. Rhyne has failed to demonstrate that any juror was in fact prejudiced by the pretrial media coverage of the case. As we noted in Sonner v. State, where a defendant fails to demonstrate actual bias on the part of the jury ultimately empaneled, this court will not presume prejudice based on extensive pretrial publicity.21
Other claims
Rhyne charges that Latinos were underrepresented in the two jury venires from which his jury was drawn in violation of the fair-cross-section requirement.22 We conclude that even if Rhyne can show underrepresentation, he has failed to sustain his burden of demonstrating any systematic exclusion in the process used to compile the jury pools.23 Rhyne also contends that his non-Mirandized, prearrest statement to the police at the Elko police station was involuntary and should have been suppressed. This claim is without merit. Rhyne was not in custody.24 He also claims that the State improperly exercised peremptory challenges against women jurors in violation of Batson v. Kentucky.25 However, Rhyne failed to object to the State‘s actions below and is therefore precluded from raising the issue on appeal.26 Moreover, we
Rhyne also makes several summary claims of error, which he fails to support with cogent argument or discussion of relevant authority.
For example, Rhyne summarily claims there was insufficient evidence of his specific intent to kill Brown. He also challenges several jury instructions without citation to any authority to support his claims that the instructions were erroneous. Specifically, Rhyne contends that Instruction 43, directing the jury to decide whether Mendenhall was an accomplice, should have included the phrase: “evidence of an oral statement ought to be viewed with caution.” He also claims that Instruction 26 improperly permitted the jury to find Rhyne guilty of either felony murder or premeditated murder without a unanimous decision on either theory. However, neither contention is supported by specific argument or authority, and we discern no error.30 Rhyne also argues there was no evidence supporting instructions on robbery; Rhyne was acquitted of robbery.
Rhyne next contends that evidence was improperly admitted at the penalty phase because it was inflammatory and prejudicial. Specifically, Rhyne challenges the admission of evidence of his
We reject all of these claims. “Contentions unsupported by specific argument or authority should be summarily rejected on appeal.”32 Moreover, none of these claims present persuasive, cogent argument that any error, defect, irregularity, or variance affected Rhyne‘s substantial rights.33
Additional penalty phase issues
Aggravating circumstances
The State alleged as aggravating circumstances pursuant to
The dissent centers its analysis on the question of who was responsible for mutilating the victim and on Rhyne‘s mental status. First, regardless of which attacker inflicted the mutilating injuries on the victim, as a participant in the murder Rhyne is equally culpable for the mutilation.37 Second, the jury actually found two mitigating circumstances based on Rhyne‘s mental problems. However, the record shows that Rhyne was competent at the time of the murder and during his trial. The jury could therefore properly find that the mitigating circumstances did not outweigh the aggravating circumstances and that death was the appropriate sentence.38
Constitutionality of the death penalty
Finally, Rhyne contends that Nevada‘s death penalty scheme is unconstitutional because
Mandatory review of death sentence pursuant to NRS 177.055
YOUNG, SHEARING, AGOSTI and LEAVITT, JJ., concur.
BECKER, J., with whom ROSE, J., agrees, concurring in part and dissenting in part:
I concur with the majority opinion in all respects save one: the excessiveness of the death penalty. I do not condone Rhyne‘s actions. His senseless murder of Mr. Brown and the grief Rhyne has caused to Mr. Brown‘s family are certainly reprehensible. However, the Constitution of the United States prohibits the automatic imposition of the death penalty on persons convicted of first-degree murder.1 Because of this, the United States Supreme Court has consistently stated that death penalty cases warrant a higher level of scrutiny because, as Justice Stewart stated in Furman v. Georgia:2
The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice.
The concept that death is different has been the backbone for high court decisions emphasizing that procedures, evidentiary rules or doctrines permissible in non-capital cases may violate the constitutional prohibitions when applied to capital punishment prosecutions.3
To survive constitutional scrutiny, death penalty statutory schemes must narrow the class of individuals eligible to receive a death sentence. They must also provide for “guided discretion” in the imposition of the penalty. The goal is to ensure individualized sentencing and eliminate the possibility that the death sentence is being imposed automatically, mechanically or arbitrarily.4
Moreover, state courts have the responsibility for ensuring that statutory aggravators are not so liberally construed that the narrowing function of the statutory scheme is circumvented or eliminated.5 Finally, in states where the statutes require the weighing of aggravating and mitigating circumstances, an appellate court cannot simply assume that the invalidity of an aggravating circumstance would not affect the sentencing body‘s decision to impose the death penalty. Whenever a statutory aggravator is invalidated on appeal, the appellate court must either: (1) remand the case for a new penalty phase, (2) reweigh the aggravating and mitigating circumstances itself, or (3) determine that any error in the aggravating circumstance is harmless beyond a reasonable doubt.6
In Nevada, there are fourteen circumstances by which first-degree murder may be punishable by death.7 Because of the large number of aggravating circumstances, it is essential that this court construe these aggravators to avoid undermining the constitutionality of our death penalty scheme. These same considerations should, and do, govern our review of death sentences for excessiveness.
We have recognized that the facts surrounding an aggravating circumstance are important in reviewing the appropriateness of the death penalty.8 In addition, we have noted that, when considering whether the death penalty is excessive, we will look at various other objective factors such as the influence drugs or alcohol may have played in the commission of the crime, the treatment of co-defendants, the mental state of the defendant, the nature and quantity of the defendant‘s prior history of violence, and the age of the defendant. The mere presence of any of these factors is not controlling. Instead, we must look at the totality of the circumstances surrounding the defendant and the crime in making a determination of excessiveness.9
As to the first aggravating circumstance, Rhyne was previously convicted of battery by a prisoner and attempted assault with a deadly weapon. The “battery” consisted of Rhyne throwing a cup full of feces on a fellow inmate through the food slot of his cell door. It is technically a felony involving the use of violence, but it is hardly the type of violence that should provide a threshold for the imposition of the death penalty.
The attempted assault with a deadly weapon presents a closer issue. Two independent witnesses, tourists from California, observed a confrontation between Rhyne and a group of teenagers in downtown Reno. According to this couple, Rhyne was mumbling to himself when he was surrounded by the teenagers who appeared to be taunting him. The teenagers claimed Rhyne swung at or hit one of their friends. The teenager fell and was seriously injured when his head hit a concrete projection. The tourists claimed Rhyne never attempted to hit the teenager. Instead, the teenager, who was shadowboxing around Rhyne, tripped and fell. A glove containing a rock constituted the deadly weapon.
Rhyne entered an Alford10 plea, against the advice of counsel. I agree with the majority that a conviction based upon an Alford plea is sufficient to support an aggravating circumstance. However, it is a factor to be considered when reviewing a death sentence for excessiveness. Given the testimony of the independent witnesses, I conclude that this is also not the type of violent history which should provide a threshold for the death penalty.
The second aggravating circumstance involves our holding in Browne v. State.11 I agree that the definition of mutilation given in Browne and in the jury instruction in this case, that mutilation is disfiguration beyond the act of killing, meets constitutional muster. However, I am concerned with the application of the definition in cases like this which involve killing by blunt force trauma. Nevertheless, the evidence certainly supports a finding of mutilation under Browne.
For purposes of evaluating the excessiveness of the punishment, the question is whether that mutilation was primarily caused by
Mendenhall‘s disparate sentence is also a significant factor in evaluating Rhyne‘s sentence. Despite substantial evidence linking Mendenhall to first-degree murder, he was allowed to plead to second-degree murder and was sentenced to life in prison with the possibility of parole. Mendenhall testified that he had nothing to do with the murder and that he only helped to dispose of the body. During arguments, the State repeatedly claimed Mendenhall was a credible witness and downplayed his participation in the offense. Yet the eyewitness testimony and forensic evidence (the amount of blood on Mendenhall‘s clothes, the boot mark, etc.) belie Mendenhall‘s version of the events. In addition, if the State truly thought Mendenhall was credible, then he should not have been charged with first-degree murder or convicted of second-degree murder. Moreover, aside from the weak aggravators discussed above, there is no reason for the disparate treatment between these two equally culpable murderers.
Finally, there is the issue of Rhyne‘s severe mental illness. The jury found two mitigating circumstances: that Rhyne committed the murder while under an extreme mental or emotional disturbance, and that Rhyne suffered a serious mental disorder during his life. Rhyne‘s entire involvement with the criminal justice system is directly a product of his mental illness. Since the age of seventeen, Rhyne has suffered from a bipolar disorder. On occasion, this has escalated into paranoia.
Moreover, the record reflects Rhyne‘s illness is of the most severe form. It is not completely treatable. As a result, Rhyne‘s mood swings and unexpected behaviors are not fully controlled, even with medication. In addition, like many individuals with severe bipolar disorder, Rhyne‘s mental condition destabilizes quickly when he does not take his medication or when he mixes his medication with alcohol or other drugs. Rhyne‘s mental condition was the heart of the State‘s future dangerousness argument. He cannot be completely controlled, nor can he always be isolated from his fellow inmates. He might irrationally attack another inmate or a guard because he doesn‘t like what someone said or how a person looked.
Like many states, Nevada‘s statutes and mental health system are not designed to deal with individuals like Rhyne. Rhyne was institutionalized on several occasions because he posed a threat to himself or others. In each case, once he was partially stabilized, he was released from custody to a least restrictive environment as required by law. The problem is that persons like Rhyne cannot function very well in an unsupervised setting. They begin to destabilize, make threats or commit crimes, and then end up back in custody. They become part of a revolving door syndrome that tragically escalates into more violent crimes. If Rhyne had a history of violence unrelated to his illness, or if his previous convictions were based on more significant facts, the future dangerousness argument might be more compelling. Given the testimony in Rhyne‘s case, however, it appears to be no more than an argument to execute someone because they are mentally ill and tiresome to handle. A death penalty based on such concerns is excessive.
Rhyne should never, under any circumstance, be released from prison. But for the reasons outlined above, I conclude that Rhyne‘s sentence of death is excessive. I would vacate the judgment of death and impose a sentence of life in prison without the possibility of parole.