127 P.3d 520 (Nev. 2006), 45083, Redeker v. Eighth Judicial Dist. Court of State of Nev. ex rel. County of Clark

Docket Nº:45083.
Citation:127 P.3d 520
Opinion Judge:Per curiam.
Party Name:Arie R. REDEKER, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE OF NEVADA, in and for the COUNTY OF CLARK, the Honorable Donald M. Mosley, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
Attorney:Philip J. Kohn, Public Defender, and Charles A. Cano and Scott L. Coffee, Deputy Public Defenders, Clark County, for Petitioner.
Case Date:February 09, 2006
Court:Supreme Court of Nevada
 
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Page 520

127 P.3d 520 (Nev. 2006)

Arie R. REDEKER, Petitioner,

v.

The EIGHTH JUDICIAL DISTRICT COURT OF the STATE OF NEVADA, in and for the COUNTY OF CLARK, the Honorable Donald M. Mosley, District Judge, Respondents,

and

The State of Nevada, Real Party in Interest.

No. 45083.

Supreme Court of Nevada

February 9, 2006

Page 521

Original petition for a writ of mandamus or prohibition.

Petition granted in part.

Philip J. Kohn, Public Defender, and Charles A. Cano and Scott L. Coffee, Deputy Public Defenders, Clark County, for Petitioner.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Real Party in Interest.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

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

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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 C178281 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 another," as required by NRS 200.033(2)(b). The next month the district court heard argument on the motion. Defense counsel argued that the court should not look to the facts underlying the prior conviction. The prosecutor argued the contrary and informed the court that Redeker made threats upon Lannan's life before setting their house on fire. The prosecutor also argued that the arson involved a threat to neighboring houses. After hearing the argument, the district court denied the motion to strike.

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.1 The writ does not issue where the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law.2 This court considers whether judicial economy and sound judicial administration militate for or against issuing the writ.3 The decision to entertain a mandamus petition lies within the discretion of this court.4

Additionally, this court may exercise its discretion to grant mandamus relief where an important issue of law requires clarification.5 The instant petition presents such an issue, and therefore we clarify in this opinion the parameters of the evidence that may be relied on to determine if a prior felony involved the use or threat of violence.

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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 C178281. 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 defendant cannot be forced to gather facts and deduce the State's theory for an aggravating circumstance from sources outside the notice of intent to seek death. Under SCR 250, the specific supporting facts are to be stated directly in the notice itself.

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.6 Thus, the State proposes that we allow it to evade the charging requirements of SCR 250 but enjoy the benefits, while avoiding the burdens, of the indictment/information process. We reject this proposal.

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

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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...

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