Redmen v. State, 21729

• Decision Date: 13 March 1992
• Docket Number: No. 21729,21729
• Citation: 828 P.2d 395,108 Nev. 227
• Parties: Timothy Lee REDMEN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 395

828 P.2d 395

108 Nev. 227

Timothy Lee REDMEN, Appellant, v. The STATE of Nevada, Respondent.

No. 21729.

Supreme Court of Nevada.

March 13, 1992.

Morgan Harris, Public Defender, and Mark S. Blaskey and Stephen J. Dahl, Deputy Public Defenders, Clark County, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland, Chief Deputy Dist. Atty., and Daniel M. Seaton, Deputy Dist. Atty., for respondent.

OPINION

MOWBRAY, Chief Justice:

On February 8, 1990, while traveling to San Diego, appellant and his girlfriend, Melissa Rial, entered Las Vegas. That night, while waiting at a stoplight, they met Max Biederman. The three of them arranged to meet for dinner at a place called Tramps. Appellant and Ms. Rial met Mr. Biederman for dinner and, afterwards, they all went to the Rio Hotel. Later that evening, Ms. Rial and appellant left Mr. Biederman to find a hotel and get some sleep.

The next day, while Ms. Rial remained at the hotel, appellant took Ms. Rial's car and met Mr. Biederman at Tramps. Mr. Biederman offered to introduce appellant to a friend who might offer him a job. Appellant and Mr. Biederman went to the King 8 Motel where the friend was staying. The friend never showed up, so appellant and Mr. Biederman left for the Rio Hotel to see a show.

At the Rio, while Mr. Biederman was inside the hotel, appellant went back to the van to get Mr. Biederman's gun. Appellant testified that, "I think somewhere in the back of my mind I was planning to do what I did." Appellant stated that he thought the scenario about the job was a scam.

Appellant and Mr. Biederman returned back to the King 8 Motel. Appellant struck Biederman one to four times with the revolver and then shot him in the jaw. Appellant then moved Ms. Rial's car to a truck stop. Appellant returned to the motel, because his fingerprints were all over Biederman's van. When he returned, Mr. Biederman was on the sidewalk about to knock on someone's door. Appellant told him to get behind the van and Biederman complied. Appellant then shot Mr. Biederman two more times.

Appellant took Mr. Biederman's van and returned to his motel with blood on his clothes. He told Ms. Rial that he and Mr. Biederman had gotten into a fight. Ms. Rial helped him clean up, and the two got in the van and returned to pick up Ms. Rial's car. Appellant told Ms. Rial to wait in the car. Appellant walked back to the King 8 Motel. Appellant mutilated Mr. Biederman's face with a wrought iron railing. Appellant also cut Mr. Biederman's hands off and wrapped them in a brown paper bag.

Appellant drove back to his motel in the van. Ms. Rial followed him in her car. She left the car there, and got into the van. Appellant and Ms. Rial drove out to the desert to dump the hands and clothing. The two returned to the motel, got Ms. Rial's car, and left for Idaho.

Mr. Biederman's body was discovered on February 10, 1990, behind a "Dipsy Dumpster" at the King 8 Motel. Las Vegas Metropolitan Police Officer Joe Schmitt and identification specialist Nancy Kingsbury responded to the scene. Pictures were taken, and the victim's wallet was retrieved from his pants. ¹

On February 11, 1990, appellant was apprehended by Corporal Ron Pumphrey of the Idaho State Police Department. ² On February 13, 1990, Detective Tom Dillard of the Las Vegas Metropolitan Police Department met with appellant in the Bannock County jail in Pocatello, Idaho. Detective Dillard took a statement from appellant. Appellant was then transferred to Clark County, Nevada, where he stood trial for robbery with the use of a deadly weapon and murder in the first degree with the use of a deadly weapon. At the conclusion of the guilt phase, the jury returned a verdict of guilty on both counts.

The jury was unable to reach a determination during the penalty phase. Pursuant to NRS 175.556, a three-judge panel was convened to determine the sentence. The three-judge panel found four aggravating circumstances and one mitigating circumstance. ³ In weighing the mitigating circumstance against the aggravating circumstances, the panel found that the mitigating circumstance did not outweigh the aggravating circumstances. It was the unanimous judgment of the court that appellant be sentenced to death.

Appellant raises several issues by way of appeal. Appellant's first contention is that he was denied his right to a speedy trial.

NRS 178.556 states in part: "If a defendant whose trial has not been postponed upon his application is not brought to trial within 60 days after the finding of the indictment or filing of the information, the court may dismiss the indictment or information." Dismissal is mandatory only absent good cause for the delay. Huebner v. State, 103 Nev. 29, 731 P.2d 1330 (1987); Anderson v. State, 86 Nev. 829, 477 P.2d 595 (1970).

In the present case, appellant invoked his right to a speedy trial, and the trial was set for May 14, 1990. On May 2, 1990, the prosecutor requested that the district court reset the trial date, since he was scheduled to try another death penalty case beginning May 7th. Defense counsel formally opposed the motion, but informed the court that they could not be prepared to go to trial on May 14th.

The trial court found good cause to continue and reset the trial date for June 18, 1990. We conclude that the court was correct in finding good cause. Neither the prosecution nor the defense was prepared to go to trial. Appellant cannot force the court to begin a trial when neither party is prepared to litigate.

Appellant next contends that the court erred in admitting photographs of the victim's mutilated body at the penalty phase of the trial. During the sentencing phase of the trial, the court admitted five photographs of the victim's mutilated body for the purpose of establishing the aggravating circumstance of mutilation. Defense counsel objected to the admission of the photographs on the grounds that they were more prejudicial than probative.

Admissibility of photographs lies within the sound discretion of the district court and, absent an abuse of that discretion, the decision will not be overturned. Ybarra v. State, 100 Nev. 167, 172, 679 P.2d 797, 800 (1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 390 (1985); Turpen v. State, 94 Nev. 576, 577, 583 P.2d 1083, 1084 (1978), cert. denied, 439 U.S. 968, 99 S.Ct. 460, 58 L.Ed.2d 428 (1978). Having examined the photographs, we conclude that they were admissible to prove the aggravating circumstance of mutilation. See Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991). We further conclude that the prejudicial effect of the photographs did not substantially outweigh their probative value. See NRS 48.035. Accordingly, we conclude that the trial court properly exercised its discretion.

Appellant alleges that it was error to instruct the jury regarding the felony murder rule. ⁴ Appellant alleges that a conviction of felony murder cannot stand since the indictment failed to allege that the killing was perpetrated in the commission of a felony. We have previously held that "the indictment in a felony murder case need not allege that the killing was perpetrated in the commission of a felony." Theriault v. State, 92 Nev. 185, 191, 547 P.2d 668, 672 (1976) (citing Rogers v. State, 83 Nev. 376, 432 P.2d 331 (1967)).

Appellant also alleges that the court erred in instructing the jury that murder committed in the perpetration of a felony carries a conclusive presumption of malice aforethought. ⁵ Appellant relies on Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (due process requires prosecution to prove every element of offense beyond a reasonable doubt), reh'g denied, 492 U.S. 937, 110 S.Ct. 23, 106 L.Ed.2d 636 (1989).

The present instruction does not violate Carella. In Carella, two instructions were given mandating conclusive presumptions as to fraud and embezzlement based upon failure to return a rental vehicle within an arbitrary time limit. ⁶ Id. at 264, 109 S.Ct. at 2420. The instructions foreclosed independent jury consideration of whether the facts established all the elements of the offenses. Id. This is to be distinguished from an instruction which informs a jury as to the findings of fact required to establish a particular element--in this case malice. See Carella, 491 U.S. at 266, 109 S.Ct. at 2420 (when a jury is instructed to presume malice from predicate facts, it still must find the existence of those facts beyond a reasonable doubt).

Appellant next contends that the trial court erred by allowing the State to call three witnesses during the penalty phase who were not endorsed as witnesses on the information. Appellant contends that he was prejudiced by this error.

NRS 173.045(2) requires the district attorney to endorse such witnesses as are known to him at the time of the filing of the information. ⁷ Absent evidence to the contrary, an unendorsed witness is presumed to have been unknown to the district attorney. Dalby v. State, 81 Nev. 517, 519, 406 P.2d 916, 917 (1965).

In the present case, three unendorsed witnesses were called at the penalty hearing. One of these witnesses, Dr. Clay Griffith, was called to rebut the testimony of Dr. Masters, a psychiatrist testifying for the defense. The State was only made aware of the defense's intention to present Dr. Masters on the day before the penalty hearing began. Therefore, pursuant to NRS 173.045(2), the State was not required to endorse Dr. Griffith on the information.

Paul Clark and Kelly Neff were also called as unendorsed witnesses during the penalty hearing. Paul Clark was a correctional officer who testified regarding a fight he had with appellant while appellant was serving a sentence of imprisonment. Kelly Neff testified regarding a fight which appellant had with a Mr. Coiner in which appellant pulled a gun. ⁸...