Browning v. State

• Decision Date: 24 July 2008
• Docket Number: No. 48019.,48019.
• Citation: 188 P.3d 60
• Parties: Paul Lewis BROWNING, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

188 P.3d 60

Paul Lewis BROWNING, Appellant, v. The STATE of Nevada, Respondent.

No. 48019.

Supreme Court of Nevada.

July 24, 2008.

JoNell Thomas, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Marc P. DiGiacomo, Deputy District Attorney, Clark County, for Respondent.

BEFORE THE COURT EN BANC.¹

OPINION

PER CURIAM:

In 1985, appellant Paul Lewis Browning robbed and stabbed to death Hugo Elsen. A jury convicted Browning of first-degree murder and various other offenses and sentenced him to death. We affirmed Browning's convictions and death sentence on direct appeal.² Browning unsuccessfully sought post-conviction relief in the district court. On appeal, this court concluded that the district court erred by denying Browning's claim that counsel was ineffective for not challenging a jury instruction defining the aggravating circumstance of depravity of mind and remanded for a new penalty hearing.³ At the conclusion of the second penalty hearing, the jury again sentenced Browning to death.

Browning raises several issues on appeal, none of which we conclude warrant relief. Accordingly, we affirm Browning's sentence of death.

FACTS

Browning robbed and stabbed to death Hugo Elsen in Elsen's jewelry store in Las Vegas and absconded with several pieces of jewelry. Browning was charged with burglary, robbery with the use of a deadly weapon, murder with the use of a deadly weapon,⁴ and escape.⁵ The State sought the death penalty. Finding Browning guilty of Elsen's murder, along with the other charged offenses, the jury imposed death, and we affirmed the convictions and death sentence.⁶ However, this court subsequently granted Browning post-conviction relief and remanded his case for a second penalty hearing.

During the second penalty hearing, the State called several witnesses and introduced testimony, documents, and photographs presented during the guilt phase of the original 1986 trial to detail to the jury the facts of Browning's crimes. In particular, Dr. Giles Green, the forensic pathologist who performed Elsen's autopsy, described the presence of six stab wounds, including a fatal stab wound to Elsen's heart. Las Vegas Metropolitan Police Department Detectives Robert Leonard and Michael Bunker explained the course of the murder investigation and Browning's eventual apprehension.

The State also introduced the prior trial testimony of Randall and Vanessa Wolfe who lived in the same motel as Browning and his girlfriend, Marsha Gaylord. On the day of Elsen's murder, Randall walked into his motel room and found Browning sitting on the bed. Browning had numerous rings, watches, and chains strewn on the bed in front of him. Browning told Randall that he wanted to use the jewelry to bail Gaylord out of jail and that he had killed Elsen. Telling Browning that he was going to get heroin, Randall left his motel room to report Browning to the police. Randall ran into Vanessa as he was exiting the motel and told her to stay with Browning and keep him calm until Randall returned with the police. While Randall sought police assistance, Vanessa helped Browning cut the tags off of the jewelry. Browning gave her one of the stolen rings and asked Vanessa to dispose of a knife, which she did and later turned over to the police. Browning also told Vanessa that he needed to "get rid of this stuff" because he had just killed someone. Shortly thereafter, Randall returned with the police and Browning was apprehended. After the police searched his motel room, Randall and Vanessa discovered additional jewelry in a cup under the sink and reported the discovery to the police. However, Randall kept two rings and a watch.

The State also presented several witnesses to establish Browning's prior felony convictions and that he was on parole on November 8, 1985, when he murdered Elsen. In particular, the State introduced evidence respecting Browning's prior criminal record, which revealed that he had incurred three convictions for robbery and convictions for receiving stolen property and grand theft person. Evidence also showed that Browning had been arrested for grand theft auto. The State presented the testimony of two victims whom Browning and another man robbed at knifepoint. And law enforcement officers testified about Browning's robbery convictions, detailing the facts and circumstances of the events.

Additionally, the State presented victim impact testimony. Elsen's son Andrew testified that his father immigrated to the United States from Switzerland and that his father and mother opened the jewelry store in 1954. Andrew testified that Elsen's murder devastated Elsen's wife. After the murder, Andrew received a discharge from the Army and moved to Las Vegas to run the jewelry store until it closed about four years after Elsen's murder. Andrew further testified that as a result of his father's murder, he felt trapped in Las Vegas, unable to leave and pursue the life he wanted for himself.

Browning called several witnesses in mitigation. Browning's relatives described him as fun-loving, happy, smart, and curious. Browning's sisters, brother, and cousin testified that Browning was a positive influence in their lives and that he was an inspiration to them during difficult times. Browning's relatives also testified that they would always maintain contact with him. One of Browning's sisters testified that executing Browning would devastate their mother. Browning's mother, Betty, testified that Browning was a supportive and obedient child and that Browning had worked as a congressional doorman. Betty further testified that she loved Browning and that he meant everything to her. She also stated that she intended to maintain contact with him and looked forward to visiting him. Browning did not make a statement in allocution.

Browning submitted several mitigating circumstances for the jury's consideration, including that he had spent approximately 20 years in prison, he had a successful childhood, he had a relationship with his family, he was a valuable member of his extended family, the Wolfes were involved in the crimes, Randall Wolfe received benefits from the State, and "any other mitigating circumstance."

The State alleged four aggravating circumstances: the murder was committed during the commission of or attempt to commit a burglary,⁷ the murder was committed during the commission of or attempt to commit a robbery,⁸ the murder was committed by a person who had previously been convicted of a felony involving the use or threat of violence to the person of another,⁹ and the murder was committed by a person under a sentence of imprisonment.¹⁰ The jury found all four aggravating circumstances beyond a reasonable doubt and no mitigating circumstances. The jury further found unanimously and beyond a reasonable doubt that the aggravating circumstances outweighed any mitigating circumstances and imposed a sentence of death.¹¹

DISCUSSION

Browning argues that his penalty hearing was unfair on several grounds, which, individually and cumulatively, entitle him to relief. We conclude that none of his arguments have merit and therefore we affirm the death sentence.

Introduction of alleged false and misleading evidence

Browning argues that the district court erred in precluding him from presenting evidence developed during post-conviction proceedings indicating that a host of evidence adduced at the original trial was false or misleading.

Evidence related to Randall and Vanessa Wolfe

At the penalty hearing, the State introduced Randall Wolfe's entire testimony from the first trial, including his statement that Browning's girlfriend Marcia Gaylord was in jail and Browning robbed Elsen because he needed bail money. Evidence developed during postconviction proceedings revealed that Gaylord had been released from jail on the morning of Elsen's murder. To the extent Browning argues that the postconviction evidence discredited the State's suggestion that he committed the crimes to secure bail money for Gaylord, the evidence was irrelevant to the penalty hearing, as Browning's guilt had already been determined. Moreover, this court noted in Browning's appeal from the denial of his post-conviction habeas petition that even if counsel could have established that Gaylord was not in jail on the afternoon of the crimes, Browning failed to show prejudice because he conceded that Gaylord had only been released from jail on the morning of the crimes, suggesting that Browning may not have known of her release, and because the motive was not crucial to the State's case.¹² We conclude that Browning fails to explain how evidence that Gaylord was not in jail when the crimes were committed mitigated his involvement or disproved any aggravating circumstance.

Browning further complains that Randall testified untruthfully at the first trial that he had not received any benefit from the State in exchange for his testimony. Browning directs our attention to the prosecutor's testimony at the post-conviction evidentiary hearing that at the time of Browning's trial, Randall was a defendant in a separate criminal prosecution and that after Browning's trial the prosecutor informed the judge assigned to Randall's prosecution that Randall had assisted in Browning's prosecution.¹³ The prosecutor further stated that after Browning's trial, he assisted Randall in securing a job. The prosecutor testified that he promised no benefits to Randall or Vanessa Wolfe before they testified at Browning's original trial. We concluded in Browning's appeal from the post-conviction habeas proceedings that this information should have been disclosed to the defense pursuant to Brady v. Maryland¹⁴ but that there was not a reasonable probability that the result of Browning's trial would have been different.¹⁵ We conclude that any assistance the prosecutor provided to...