917 P.2d 1364 (Nev. 1996), 26562, Domingues v. State

Docket Nº:26562.
Citation:917 P.2d 1364, 112 Nev. 683
Party Name:Michael DOMINGUES, Appellant, v. The STATE of Nevada, Respondent.
Case Date:May 30, 1996
Court:Supreme Court of Nevada

Page 1364

917 P.2d 1364 (Nev. 1996)

112 Nev. 683

Michael DOMINGUES, Appellant,


The STATE of Nevada, Respondent.

No. 26562.

Supreme Court of Nevada.

May 30, 1996.

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Morgan D. Harris, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for Appellant.

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Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

[112 Nev. 689] OPINION

SHEARING, Justice:

On the evening of October 22, 1993, Arjin Chanel Pechpo and her four-year old son, Jonathan Smith, were murdered in their home in Las Vegas, Nevada. Appellant Michael Domingues waited for Pechpo behind her front door; when she entered with Jonathan, Domingues threatened her with a gun, tied up her hands, and strangled her with a cord. Domingues then dragged Pechpo's body to the bathtub, filled it with water, ordered Jonathan to get into the tub, and threw a hair dryer into the tub in an attempt to electrocute the boy. When the electrocution attempt failed, Domingues stabbed Jonathan with a knife numerous times, killing him.

The police investigation did not link Domingues to the crimes until November 19, 1993, when police learned that Domingues had used Pechpo's credit card by forging her name to purchase several items at a local Target department store. In relation to the Target incident, Domingues's accomplice and friend, Joshua Rodgers, explained that Domingues commented that he had strangled a woman because she was yelling at his then-girlfriend, Michelle Fleck ("Michelle"). At a subsequent interview in November 1993, Domingues admitted to police only that he entered the house, stole the credit card and used it at the Target store.

On January 3, 1994, the police received a call from Paul Fleck, Michelle Fleck's father, and the next-door neighbor to the Pechpo residence. When police later met with Fleck, he turned over a television set and a VCR, as well as other items reported to have belonged to Arjin Pechpo. On January 4, 1994, the police returned to the Fleck residence and spoke with Michelle. During this interview, Michelle fully implicated Domingues in the murders. Her statement included crime details which had not been previously released to the media or to any private citizens, including the victims' family.

Michelle related that approximately two weeks prior to the murders, Domingues told her that he wanted to steal a car from a particular person living in the neighborhood and that he wanted to beat them up and kill them if they put up a fight. Three days before the murders, Michelle saw Domingues braiding some cord similar to that used by her father in his plumbing business. Thereafter, on the night of October 22, 1993, Michelle recalled that Domingues had come to her window dressed entirely in black--a black-hooded shirt over a long-sleeved black shirt and [112 Nev. 690] black sweat pants. After Michelle climbed out of the window, Domingues pointed to a burgundy car and asked her, "How do you like my new car?" When Michelle asked Domingues where he had gotten the car, he replied that he had killed the woman next door, pointing to the Pechpo home. At this point, Michelle did not know whether or not to believe Domingues's declaration.

Domingues explained that they were going to California, and Michelle got into the car, which she later identified as belonging to Pechpo. Michelle noticed a plastic bag containing a knife, some yellow rope and an open wallet on the floor of the vehicle. She recognized the knife as one from her kitchen. Michelle also saw a gun and recognized it as belonging to her father. After some time, Michelle informed Domingues that she needed to use the restroom. Domingues exited the freeway, and Michelle explained that she wanted to go home. Domingues began yelling, "I did it for you." On the way back to Las Vegas, Domingues kept saying to Michelle that he had strangled "her." At a trailer park, Domingues stopped the car and discarded some of the black clothes he was wearing, a plastic grocery sack, some cord, the wallet and a child's car seat into a trash dumpster. Domingues explained that he was getting "rid of evidence." Domingues did not throw away the knife. When the couple

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returned to Michelle's house, Domingues directed her to wash the knife with bleach. Michelle washed the knife noticing that it had blood on it.

Summarizing various discussions she had with Domingues that night, Michelle recounted Domingues's admissions about the crimes. Domingues gained access to Arjin Pechpo's house by breaking the kitchen window. He waited behind the door for Pechpo to come home. Domingues stated that he was waiting for her so that he could kill her and steal her car. When Pechpo and her son entered the house, Domingues placed a gun to Pechpo's head and ordered her to lie down. Thereafter, he tied her hands with the cord Fleck later saw in the car and strangled her with the cord. Domingues then dragged Pechpo's body to the bathroom and put her in the tub. Domingues then instructed the little boy, Jonathan, to take off his pants and get into the tub. He handed the boy a hair dryer in an effort to electrocute him. When this proved ineffective, Domingues stabbed the boy repeatedly with Fleck's kitchen knife.

Domingues stayed the night with Michelle. The next morning, October 23, 1993, Michelle noticed a cut on Domingues's finger. When Fleck asked what had happened, Domingues explained that the injury occurred as he was choking the woman. Michelle related that after the murders, Domingues had brought her a television set and two VCR's and intended them to be payment to her father for a phone bill. He also brought her jewelry, hair curlers, curling irons, a dress, some belts and a black teddy bear. [112 Nev. 691] After her January 4, 1994, interview with the police, most of these items were turned over to the police. Michelle also turned over the knife and the black-hooded T-shirt Domingues had worn.

Michelle acknowledged that she initially gave false information to the police by telling them that she had seen a car with some black men speed away on the night of the murders. She also explained that she was extremely afraid of Domingues in that he "told me if I told anybody he would kill my whole family in front of me. He would tie me up and then torture me until I die."

After the January 4, 1994, interview, police arrested and charged Domingues with first degree murder for Pechpo's death, first degree murder with the use of a deadly weapon for Jonathan's death, robbery with use of a deadly weapon, and burglary. After a trial, the jury found Domingues guilty of all crimes charged. After a penalty hearing, Domingues was sentenced to death for each of the murder counts, two consecutive fifteen-year terms of imprisonment for robbery with use of a deadly weapon, and ten years of imprisonment for the burglary.

On appeal, Domingues first argues that the district court erred in denying his pre-trial petition for writ of habeas corpus, in that insufficient evidence existed to support use of a deadly weapon for the robbery and murder charges in light of the "corpus delicti rule." Specifically, Domingues argues that there is absolutely no proof, independent of his own admissions to Michelle Fleck, that either a gun or a knife was used in either the killing or robbery of Pechpo. He contends that because the deadly weapon enhancement was appended to the robbery and murder counts, use of a deadly weapon became an element of each offense. Domingues claims that the "corpus delicti rule" precluded consideration of his admissions at the preliminary hearing as sufficient evidence to support a finding of probable cause for each offense.

To hold a criminal defendant for trial, there must be probable cause to believe that a crime was committed and that the defendant was the one who committed it. Azbill v. State, 84 Nev. 345, 350-51, 440 P.2d 1014, 1017 (1968). "In determining whether a crime has been committed, two elements, i.e., the corpus delicti, must be established." Sheriff v. Larsgaard, 96 Nev. 486, 488, 611 P.2d 625, 626 (1980). "The corpus delicti of murder are (1) the fact of death, and (2) a criminal agency of another responsible for that death." Id. (citing Hicks v. Sheriff, 86 Nev. 67, 464 P.2d 462 (1970)). According to

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the corpus delicti rule, only after the corpus delicti is determined by lawful evidence may the defendant's admissions be considered in establishing whether it was the defendant who committed the crime. State, Dep't of Mtr. [112 Nev. 692] Vehicles v. McLeod, 106 Nev. 852, 855, 801 P.2d 1390, 1392 (1990).

We disagree with Domingues's argument because the corpus delicti rule is inapplicable to a deadly weapon sentencing enhancement. The purpose of the corpus delicti rule is to establish that an injury or crime in fact occurred. A sentencing enhancement is merely an additional penalty for the primary offense. NRS 193.165(2), the statute providing for a sentencing enhancement when a deadly weapon is used, states in pertinent part:

This section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.

The corpus delicti rule asks a more fundamental question: Did a death occur and was it by means of criminal agency? According to Wigmore:

The meaning of the phrase corpus delicti has been the subject of much loose judicial comment, and an apparent sanction has often been given to an unjustifiably broad meaning. It is clear that an analysis of every crime...

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