Rowland v. State

• Decision Date: 24 January 2002
• Docket Number: No. 34552.,34552.
• Parties: Robert Ryan ROWLAND, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

39 P.3d 114

118 Nev. 31

Robert Ryan ROWLAND, Appellant, v. The STATE of Nevada, Respondent.

No. 34552.

Supreme Court of Nevada.

January 24, 2002.

Steven G. McGuire, State Public Defender, and Harriet E. Cummings, Deputy Public Defender, Carson City, for Appellant.

Frankie Sue Del Papa, Attorney General, David F. Sarnowski, Chief Deputy Attorney General, and Dorothy Nash Holmes, Deputy Attorney General, Carson City; Noel S. Waters, District Attorney, Carson City, for Respondent.

Before SHEARING, ROSE and BECKER, JJ.

OPINION

PER CURIAM:

Appellant Robert Ryan Rowland and co-conspirators, who were part of a prison gang known as GFBD ("God Forgives, Brothers Don't"), murdered and robbed Nevada State Prison inmate Steven Bruce Silva on January 19, 1998. Rowland was tried with one of the co-conspirators, Tony Martin Smith. They were convicted and sentenced to life without parole. Rowland contends that a number of errors occurred in the district court. We conclude that none of Rowland's assignments of error warrant relief, and we affirm the judgment of conviction and sentence of life without parole.

FACTS

I. Guilt phase

A jury trial commenced on April 15, 1999. Two of Rowland's co-conspirators were not tried for Silva's murder, Juan Pedro LaPeire and Ricky Irvine. LaPeire pleaded guilty to conspiracy to commit grand larceny, for which he was sentenced to time served, and then testified for the State at the trial of Rowland and Smith. Irvine testified at the grand jury hearing, but was dismissed from the case when he committed suicide in his cell after a local newspaper had revealed that he had testified.

On January 19, 1998, inmate Silva was found badly beaten in his cell. Paramedics transported Silva to the Carson-Tahoe Hospital, where he died from multiple injuries of blunt-force trauma.

Officer Rod Moore, who began investigating the crime shortly after its occurrence, heard that Irvine had exhibited some strange behavior after the incident and had claimed to know who committed the crime. During an interview Irvine told Officer Moore, "I know who did it," and told him to "go check [Rowland's] hands." Officer Moore visited Rowland and without telling him why he was checking his hands, Officer Moore observed that his knuckles were red, but saw no abrasions.

Officers conducted a search of the entire unit and found evidence connecting the four suspects to the crime. In Silva's cell, a note saying "expect no mercy" from an unidentified writer was found. Inmate LaPeire, Rowland's cellmate, testified that he believed that this note was in Rowland's handwriting. A Walkman and a television set, which belonged to Silva, were found in Irvine's cell. A fan, allegedly belonging to Silva, was found in Smith's cell. Gloves were found in both Rowland's and Smith's cells.

No guards witnessed what happened to Silva, but several inmate witnesses testified regarding the events. LaPeire testified that he went to a meeting in Smith's cell the night before the murder to plan the attack on Silva with Rowland, Smith, and Irvine. According to LaPeire, Rowland and Smith were upset with Silva because Silva would not give his methadone pills to them. LaPeire served as a lookout during the attack and helped carry Silva's property after the incident. After the attack on Silva, LaPeire told the investigators that he and Rowland were in their cell the entire time, but he later confessed, asserting that Rowland concocted this lie for him.

Inmate Rick Ebel, Silva's cellmate testified that he was in Silva's cell when Rowland, Smith, and Irvine kicked in the door and told Ebel to "[g]et out." Ebel stated that he jumped out of the cell but stood next to the doorway to observe what was happening. Meanwhile, Ebel heard Rowland tell Silva, "[y]ou're getting taxed, mother-fucker." Ebel testified that Rowland punched and Smith kicked Silva while Irvine stuffed Silva's property in a laundry bag. Ebel stated that after the attack, inmate David Baker came over from a nearby cell to administer CPR on Silva while Ebel sought help. Ebel also went to the cell where Rowland, Smith, and a third person were talking and told them, "I think he's dead," to which either Rowland or Smith responded, "[w]ell just keep your mouth shut." Ebel admitted that he denied any involvement for months until he was put in solitary confinement for six or seven months as a result of the crime and his suspected involvement. He also admitted that he had a reputation as a big mouth and admitted that part of his motive for testifying was that he was a suspect, and he wanted to avoid being charged with the murder.

Inmate Richard Williams Watson, who lived in the cell across from Silva's, testified that he saw Rowland punching Silva while wearing gloves, Smith holding a laundry bag of Silva's belongings, and heard Rowland yell to Baker that "he might be dead." Watson admitted that he did not tell the whole story when he was first interviewed by investigators. In exchange for his testimony, the prosecution wrote letters to the parole board on his behalf and he received a 90-day credit toward his sentence. After Watson agreed to testify, Rowland attacked him on a prison bus on April 1, 1998, and threatened to cut his throat if he testified.

Inmate James Reid testified that on the day of the murder, he was making a phone call in the unit where the murder occurred, and from that vantage point, he could see the area where Silva's cell was located. Reid stated that he saw Smith, Irvine, and LaPeire leaving Silva's cell carrying property in laundry bags. Reid also saw Rowland exiting Silva's cell carrying a shirt. Reid admitted that he had lied to the investigators the first two times he was interviewed because he was afraid of the consequences he might suffer if he was labeled a "snitch."

Inmate Timothy Wade, Silva's former cellmate, testified that he was using the phone in Unit 6 when the attack on Silva occurred. Wade saw Smith and Rowland enter the rotunda on the way down to Silva's cell and Smith yelled to Wade, "mind your own business," which was picked up on the prison telephone recording system. Wade went to Smith's cell and while Smith was cleaning himself off, Smith told Wade that if Silva paid his debts he could get his stuff back and he retorted to Wade that, "[y]ou don't even like that dude." After providing investigators with information about the crime, Wade said that GFBD members attacked him in the prison yard. Initially, Wade refused to speak with investigators, but agreed to testify only if he was provided protection. Inmate Ricky Egberto testified that when he was in the prison infirmary with Smith and Rowland six weeks after the murder, Smith and Rowland admitted that they had beaten Silva over a drug debt and that Irvine was going to take the blame. Inmate David Springfield testified that on the day of the murder he saw Rowland leave Silva's cell red-faced with gloves on and saw Smith and Irvine carrying items out. Inmate Allen Clingempeel testified that after Irvine committed suicide, Smith, with Rowland present, told Clingempeel to say that Irvine confessed to the murder.

Rowland did not set forth any affirmative defenses and chose not to testify at trial. Instead, Rowland chose to hold the State to its burden of proof. Thus, Rowland's defense consisted primarily of attacking Watson's credibility by offering testimony of several officers who stated that Watson had failed to alert them to any possible trouble with Rowland, contrary to Watson's testimony.

On the other hand, Smith's defense was that he was not at the scene when the crime occurred. Smith chose to testify. In addition, inmates Ronnie Johnson and Jason Jones testified as to Smith's alibi. Specifically, Johnson testified that at the time of Silva's attack, Smith was with him near the handball courts after he had just been to the visiting area to see his ex-wife and son. Jones testified that he witnessed the attack but that he did not see Smith present at the time of the attack. The State discredited Jones's testimony with rebuttal witness inmate Richard Scott, who testified that Jones was playing cards with him during the attack on Silva.

On May 4, 1998, the jury returned guilty verdicts against Rowland and Smith for first-degree murder, robbery, burglary, and conspiracy to commit robbery.

II. Penalty phase

The penalty hearing began on the following day and Rowland filed a motion to dismiss the jury or at least take a two-week hiatus before proceeding with the penalty phase because some of the jurors expressed concern for their safety. The district court denied the motion.

At the penalty hearing, Smith elected not to testify. However, Rowland chose to testify and admitted hitting Silva but denied intending to kill him.

After weighing the various mitigating and aggravating circumstances, the jury rejected the death penalty, imposing a sentence on both Rowland and Smith of life without the possibility of parole. On July 21, 1999, the district court formally sentenced Rowland to various terms of life without the possibility of parole.

DISCUSSION

I. The conduct of the prosecutor

Rowland contends that the prosecutor engaged in numerous instances of misconduct throughout the guilt and penalty phases of his trial. Rowland, however, failed to object to most of the prosecutor's comments he now challenges. This court has long held that, as a general rule, "the failure to make timely objections [to prosecutorial misconduct] and to seek corrective instructions during trial [precludes appellate consideration]."¹ But we may consider sua sponte plain error which affects the defendant's substantial rights, if the error either: "(1) had a prejudicial impact on the verdict when viewed in context of the trial as a whole, or (2) seriously affects the integrity or public reputation of the judicial proceedings."²

"The level of misconduct necessary to reverse a conviction depends upon how strong and...