146 P.3d 279 | Nev. | 2006
Lead Opinion
By the Court,
This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus in a death penalty case. Appellant Michael Rippo invokes this court’s holding in McConnell v. State that “it [is] impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated.”
FACTS
On February 18, 1992, Rippo and Diana Hunt robbed and killed Denise Lizzi and Lauri Jacobson. Rippo and Hunt went to Jacobson’s apartment where Hunt knocked Jacobson to the floor with a beer bottle and Rippo used a stun gun to subdue both Jacobson and Lizzi. Rippo then bound and gagged the women, dragged them to a closet, and strangled them. He took Lizzi’s car and credit cards and later used the credit cards to make several purchases. The medical examiner testified that both women died of asphyxiation and that their injuries were consistent with manual and ligature strangulation.
Under a plea agreement with the State, Hunt pleaded guilty to robbery and testified against Rippo. The State presented two theories of first-degree murder: the murder was premeditated and deliberate, and the murder was committed during the commission of a felony. The jury found Rippo guilty of two counts of first-degree murder and one count each of robbery and unauthorized use of a credit card.
In the penalty phase, the State presented evidence that Rippo was convicted of committing a violent sexual assault in 1982 as well as juvenile burglaries. The State also presented testimony by five relatives of the two murder victims. The defense called three witnesses to testify on Rippo’s behalf: a prison vocational instruc
This court affirmed Rippo’s judgment of conviction and sentence.
DISCUSSION
1. Invalid aggravating circumstances under McConnell
Citing McConnell,
We held in McConnell that in any case where the State seeks a death sentence and “bases a first-degree murder conviction in whole or part on felony murder,” an aggravating circumstance cannot be based on the felony murder’s predicate felony.
We address first the State’s argument that the theory of felony murder in this case can be disregarded under McConnell because there is “ample evidence” that Rippo committed premeditated murder. This approach has no basis in McConnell. The holding and rationale in McConnell do not involve determining the adequacy of the evidence of deliberation and premeditation; rather, they are concerned with whether any juror could have relied on a theory of felony murder in finding a defendant guilty of first-degree murder. We did conclude that McConnell’s own conviction for first-degree murder was “soundly based on a theory of deliberate, premeditated murder,” leaving the felony-murder theory without consequence.
McConnell applies here because the district court instructed the jury that Rippo was accused of two counts of murder for killing the victims “willfully, feloniously, without authority of law, with malice aforethought and premeditation and/or during the course of committing Robbery and/or Kidnapping and/or Burglary.” (Emphasis added.) The verdict form did not indicate whether the jury found first-degree murder based on premeditated murder, felony murder, or both. In the penalty phase, the jury found three felony aggravators based on robbery, kidnapping, and burglary— the felonies that underlay the State’s felony-murder theory. These three aggravators therefore must be struck.
This court can still uphold Rippo’s death sentence by reweighing the aggravating and mitigating circumstances if we are convinced that the effect of the invalid aggravating circumstances was harmless beyond a reasonable doubt.
The three invalid felony aggravators all involved the circumstances of the murder itself, so striking them eliminates the weight of roughly one major aggravator.
A review of the record reveals that the mitigating evidence presented on Rippo’s behalf was not weighty. Rippo’s counsel called three witnesses. James Cooper testified that he was employed by the Department of Prisons as a vocational education instructor and ran a prison ministry. He supervised Rippo’s work and was his minister. Cooper was unaware of Rippo having ever caused a prob
Trial counsel also read two letters to the jury. The first letter was from a doctor and concerned the poor health of Rippo’s mother Carol Duncan, which made it impossible for her to testify at trial. The second letter was from Mrs. Duncan. She stated that Rippo’s biological father left her when Rippo was five years old. She described Rippo as an outgoing and carefree spirit who treated his sisters in a tender fashion and loved animals. After Rippo turned 15, he began arguing with his stepfather, a professional gambler, and ran away from home. After he was convicted of burglary, his mother had him placed in the Spring Mountain Youth Camp. While he was in the camp, his stepfather was diagnosed with cancer. After about four months, Rippo returned home, but his family was absorbed with his stepfather’s terminal illness, and Rippo’s relations with his mother and family deteriorated. After Mrs. Duncan hinted that Rippo might be sent back to Spring Mountain, she did not see her son again until he was arrested for sexual assault. While Rippo was incarcerated, he earned a GED, completed an electronics course, obtained a PELL grant, taught himself a foreign language, and was employed by the corrections system. When he came home from prison, he had a job in construction and a nice girlfriend.
This evidence in mitigation was not particularly compelling. We conclude beyond a reasonable doubt that the jurors would have found that the mitigating circumstances did not outweigh the three valid aggravating circumstances and, after consideration of the evidence as a whole, would have returned a sentence of death.
This conclusion is not changed by the fact that one jury instruction included an incorrect implication regarding the consideration of mitigating circumstances. The last paragraph of Instruction No. 7 provided:
A mitigating circumstance itself need not be agreed to unanimously; that is, any one juror can find a mitigating circumstance without the agreement of any other jurors. The entire jury must agree unanimously, however, as to whether the aggravating circumstances outweigh the mitigating circum*1095 stances or whether the mitigating circumstances outweigh the aggravating circumstances.
(Emphases added.) The final sentence of this instruction should have read simply: ‘ ‘The entire jury must agree unanimously as to whether the aggravating circumstances outweigh the mitigating circumstances.” The emphasized language implied that jurors had to agree unanimously that mitigating circumstances outweigh aggravating circumstances, when actually “a jury’s finding of mitigating circumstances in a capital penalty hearing does not have to be unanimous.”
However, despite the inaccurate wording at the end of the instruction, the instruction clearly and properly stated that each individual juror could find mitigating circumstances without the agreement of any other jurors and further provided that the jurors had to be unanimous in finding that the aggravating circumstances outweighed the mitigating circumstances.
2. Claims of ineffective assistance of counsel
Rippo also claims that his trial and appellate counsel provided ineffective assistance in a variety of ways. We conclude that none of Rippo’s arguments in this regard has merit. We briefly discuss those worthy of comment below.
Claims of ineffective assistance of trial or appellate counsel are properly raised for the first time in a timely first post-conviction petition.
Rippo alleges that his trial counsel were ineffective for insisting that he waive his right to a speedy trial and then allowing his case to languish for 46 months. Because of the delay, he asserts, jailhouse informants learned about his case and were able to fabricate the testimony used by the State. However, he does not support this claim with specific factual allegations, references to the record, or any citation to relevant authority. Nor does he describe the informant testimony or explain how it was prejudicial. Accordingly, Rippo has failed to demonstrate that the district court erred in denying this claim.
Rippo claims that trial counsel were ineffective because they failed to object to the State’s use of a prison photograph of him. He argues that the photo was irrelevant and unduly prejudicial and constituted evidence of other bad acts. Rippo does not support this claim with references to the record, and the trial transcript shows that his counsel unsuccessfully objected to the admission of the photo. Accordingly, Rippo has failed to demonstrate that the district court erred in denying this claim.
Rippo maintains that his appellate counsel was ineffective for not raising claims of ineffective assistance of trial counsel. However, this court declines to address such claims on direct appeal unless the district court has held an evidentiary hearing on the question or an evidentiary hearing would be unnecessary.
Rippo claims that appellate counsel was ineffective for not appealing on grounds that the jury instruction defining premedita
Rippo claims that appellate counsel was ineffective for not appealing on grounds that the jury did not adequately reflect Clark County’s African-American population and so failed to represent a fair cross section of the community. Nothing in the record shows that this claim was properly preserved for appeal.
CONCLUSION
Three of the aggravating circumstances found by the jury in this case were invalid because they were based on felonies which were used to support the prosecution’s theory of felony murder, and a portion of the jury instruction discussing mitigating circumstances was incorrect. Three aggravators found by the jury remain valid, and we conclude that the jury’s consideration of the invalid aggravating circumstances and the erroneous instruction were harmless beyond a reasonable doubt. We therefore affirm the district court’s order denying post-conviction habeas relief.
120 Nev. 1043, 1069, 102 P.3d 606, 624 (2004).
122 Nev. 1066, 146 P.3d 265 (2006).
See Rippo v. State, 113 Nev. 1239, 1244-46, 946 P.2d 1017, 1021-22 (1997).
Id. at 1265, 946 P.2d at 1033.
120 Nev. 1043, 102 P.3d 606.
See Clem v. State, 119 Nev. 615, 621, 81 P.3d 521, 525-26 (2003).
120 Nev. at 1069, 102 P.3d at 624.
Id.
Bejarano, 122 Nev. at 1079, 146 P.3d at 274.
McConnell, 120 Nev. at 1062, 102 P.3d at 620.
Id.
State v. Haberstroh, 119 Nev. 173, 183, 69 P.3d 676, 682-83 (2003).
546 U.S. 212 (2006).
Id. at 221.
See, e.g., Evans v. State, 117 Nev. 609, 634, 28 P.3d 498, 515 (2001).
Cf. Haberstroh, 119 Nev. at 184, 69 P.3d at 683.
Doleman v. State, 112 Nev. 843, 850, 921 P.2d 278, 282 (1996) (citing Mills v. Maryland, 486 U.S. 367, 374-82 (1988)).
The latter statement contains a slight mistake that actually favored Rippo. Aggravating circumstances need not outweigh mitigating circumstances to impose a death sentence; rather, NRS 200.030(4)(a) provides in part that a defendant is eligible for death if “any mitigating circumstance or circumstances which are found do not outweigh the aggravating circumstance or circumstances.”
Pellegrini v. State, 117 Nev. 860, 882, 34 P.3d 519, 534 (2001).
Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996).
Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Strickland, 466 U.S. at 694; Riley v. State, 110 Nev. 638, 650 n.7, 878 P.2d 272, 280 n.7 (1994).
Kirksey, 112 Nev. at 998, 923 P.2d at 1114.
Strickland, 466 U.S. at 689.
Pellegrini, 117 Nev. at 883, 34 P.3d at 534.
NRS 178.602; Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 482-83 (2000).
116 Nev. 215, 233-36, 994 P.2d 700, 712-14 (2000).
See Evans, 117 Nev. at 643, 28 P.3d at 521; Garner v. State, 116 Nev. 770, 787-89, 6 P.3d 1013, 1024-25 (2000), overruled in part on other grounds by Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002).
Cf. Rhyne v. State, 118 Nev. 1, 11 & n.26, 38 P.3d 163, 170 & n.26 (2002) (holding that failure to object to exclusion of jurors as unconstitutional under Batson v. Kentucky, 476 U.S. 79 (1986), precludes raising the issue on appeal); Hanley v. State, 83 Nev. 461, 464, 434 P.2d 440, 442 (1967) (recognizing that failure to challenge jurors when grounds for disqualification are known results in waiver of the challenge).
See Evans v. State, 112 Nev. 1172, 1186, 926 P.2d 265, 275 (1996).
Duren v. Missouri, 439 U.S. 357, 364 (1979); see also Evans, 112 Nev. at 1186, 926 P.2d at 275.
Facts alleged in Rippo’s opening brief are neither evidence nor part of the record. See Phillips v. State, 105 Nev. 631, 634, 782 P.2d 381, 383 (1989).
Concurrence in Part
with whom Maupin and Gibbons, JJ., agree, concurring in part and dissenting in part:
I concur with my colleagues in concluding that appellant Michael Rippo’s claims of ineffective assistance of counsel have no
Even assuming that the bulk of the State’s case in aggravation remains after striking the three felony aggravators and that the mitigating evidence was not weighty, it is not certain beyond a reasonable doubt that the misinstructed jury would have found Rippo death eligible absent the felony aggravators.
Instruction No. 7 informed the jurors that “[t]he entire jury must agree unanimously, however, as to . . . whether the mitigating circumstances outweigh the aggravating circumstances.” This is definite error. This court, relying on Supreme Court case law, has stated: “In a capital case, a sentencer may not be precluded from considering any relevant mitigating evidence. This rule is violated if a jury believes that it cannot give mitigating evidence any effect unless it unanimously agrees that the mitigating circumstance exists.”
Before reweighing, we must fully heed the United States Supreme Court’s opinions “emphasizing the importance of the sentencer’s consideration of a defendant’s mitigating evidence.”
Given that a reasonable juror could have been misled to believe that mitigating circumstances he or she individually found could have no effect without the consensus of the entire jury, I cannot conclude that the effect of three invalid aggravators on the jury’s decision was harmless beyond a reasonable doubt. Remand to the
120 Nev. 1043, 102 P.3d 606 (2004).
Jimenez v. State, 112 Nev. 610, 624, 918 P.2d 687, 695 (1996) (citing Mills v. Maryland, 486 U.S. 367, 374-75 (1988)).
Clemons v. Mississippi, 494 U.S. 738, 752 (1990).
Id. at 754.
Concurrence in Part
with whom Douglas, J., agrees, concurring in part and dissenting in part:
I concur with my colleagues’ determination that appellant Michael Rippo’s claims of ineffective assistance of counsel are without merit. I dissent in regard to the application of this court’s holding in McConnell v. State.
The three felony aggravating circumstances found in this case would be invalid if McConnell applied. Nevertheless, three valid aggravators would remain: Rippo committed the murder while under a sentence of imprisonment, he was previously convicted of a felony involving the use or threat of violence, and the murder involved torture. These circumstances were the preponderant part of the case in aggravation, while the mitigating evidence was not substantial. I conclude beyond a reasonable doubt that, even absent the invalid aggravators and incorrect instruction, the jury would have found Rippo death eligible and returned a death sentence.
I therefore concur in affirming the district court’s order denying post-conviction habeas relief.
120 Nev. 1043, 102 P.3d 606 (2004).
122 Nev. 1066, 1084-86, 146 P.3d 265, 277-79 (2006) (Becker, J., concurring and dissenting).