Barlow v. State, 77055

Docket Nº77055
Citation507 P.3d 1185
Case DateApril 14, 2022
CourtSupreme Court of Nevada

507 P.3d 1185

Keith Junior BARLOW, Appellant,
v.
The STATE of Nevada, Respondent.

No. 77055

Supreme Court of Nevada.

FILED APRIL 14, 2022


JoNell Thomas, Special Public Defender, Alzora B. Jackson and Monica R. Trujillo, Chief Deputy Special Public Defenders, Clark County, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Marc P. DiGiacomo, Chief Deputy District Attorney, and John Niman, Deputy District Attorney, Clark County, for Respondent.

BEFORE THE SUPREME COURT, EN BANC.1

OPINION

By the Court, SILVER, J.:

507 P.3d 1190

A jury found appellant Keith Barlow guilty of multiple charges and sentenced him to death for murdering two people. During the guilt phase of Barlow's trial, the State presented overwhelming evidence that he broke into the victims’ apartment and shot each of them multiple times. Before penalty phase closing arguments, the district court prohibited Barlow from arguing that if a single juror determines that there are mitigating circumstances sufficient to outweigh the aggravating circumstances, the death penalty is no longer an option and the jury must then consider imposing a sentence other than death. The district court reasoned that if the jury cannot reach a unanimous decision as to the weighing of aggravating and mitigating circumstances, the result is a hung jury. We take this opportunity to clarify that when a jury cannot reach a unanimous decision as to the weighing of aggravating and mitigating circumstances, the jury cannot impose a death sentence but must consider the other sentences that may be imposed. The jury is hung in the penalty phase of a capital trial only when it cannot unanimously agree on the sentence to be imposed. Thus, we conclude that the district court abused its discretion by prohibiting Barlow's argument. This error, in conjunction with others that occurred in the penalty phase, worked cumulatively to deprive Barlow of a fair penalty hearing. But we conclude that no relief is warranted on Barlow's claims regarding the guilt phase. Accordingly, we affirm the judgment of conviction in part, reverse it in part, and remand for a new penalty hearing.

FACTS AND PROCEDURAL HISTORY

Barlow and the female victim Danielle Woods maintained a tumultuous, off-and-on romantic relationship. Woods also had a romantic relationship with the male victim Donnie Cobb and lived in his apartment. On February 1, 2013, Woods’ niece Tamara Herron encountered Barlow, who asked her about Woods’ whereabouts. Herron testified that Barlow appeared angry and agitated and told her that he was tired of the "games" Woods was playing. When Herron told Barlow she did not know Woods’ whereabouts, he stated that he knew Woods was with Cobb.

Two days later, in the early morning hours, Barlow accosted Woods outside of a convenience store near Cobb's apartment. Barlow screamed at Woods, threatened her with an electronic stun device, and attempted to force her into his vehicle. When Cobb intervened, Barlow drew a firearm and aimed it at Cobb. Barlow told Woods and Cobb that he would "be back" and then he left the scene. Law enforcement responded to the incident and attempted to contact Barlow but could not locate him. About two hours after the incident, Barlow went to Cobb's apartment, broke in the door, and shot Woods and Cobb to death.

Responding to a report of gunshots, police officers discovered the dead bodies of Woods and Cobb. Law enforcement recovered a total of eight spent bullet casings from Cobb's apartment, including casings found in Woods’ hair and on her chest. The ammunition was branded as Blazer .40 caliber Smith & Wesson casings. A Ruger .40 caliber semiautomatic handgun was found in Barlow's vehicle. The gun's magazine contained Blazer .40 caliber Smith & Wesson ammunition. A forensic examiner identified Barlow's thumbprint on the magazine loaded in the firearm. Additional testing also matched DNA found on the magazine to Barlow. A forensic examiner conducted a microscopic comparison of the casings found at the scene and the test-fired

507 P.3d 1191

casings from the Ruger handgun. That analysis showed that the casings recovered from the scene were fired by the handgun found in Barlow's vehicle.

The State charged Barlow with home invasion while in possession of a firearm, burglary while in possession of a firearm, assault with the use of a deadly weapon, and two counts of first-degree murder with the use of a deadly weapon and filed a notice of intent to seek the death penalty for both murders.2 The jury returned guilty verdicts on all counts. Following the penalty hearing, the jury sentenced Barlow to death for both murders. This appeal followed.

DISCUSSION

Penalty phase claims

Because the primary issues addressed in this opinion—the limitations placed on Barlow's penalty phase argument, prosecutorial misconduct, the great-risk-of-death aggravating circumstance, and cumulative error—concern the penalty phase of the trial, we focus on that phase of trial first. We then address the guilt-phase claims.

Limitation of Barlow's penalty-phase argument

Barlow argues that the district court erred in prohibiting him from making an argument based on a portion of the capital instruction this court provided in Evans v. State , 117 Nev. 609, 28 P.3d 498 (2001), overruled on other grounds by Lisle v. State, 131 Nev. 356, 366 n.5, 351 P.3d 725, 732 n.5 (2015). We review a district court's determination about "the latitude allowed counsel in closing argument for abuse of discretion." Glover v. Eighth Judicial Dist. Court, 125 Nev. 691, 704, 220 P.3d 684, 693 (2009) (internal citation omitted).

Barlow, relying upon Evans, argues that he should have been allowed to argue that if at least one juror decides that there are mitigating circumstances sufficient to outweigh the aggravating circumstances, he could not be sentenced to death and the jury must then consider imposing a punishment other than death. The State contends that despite the Evans instruction saying just that, the district court properly prohibited the argument because a disagreement as to the weighing of aggravating and mitigating circumstances results in a hung jury such that the jury could not consider any other punishment. We hold that if at least one juror finds there are mitigating circumstances sufficient to outweigh the aggravating circumstances, the jury cannot impose a death sentence but nonetheless must consider the other sentences. Therefore, we conclude that the district court abused its discretion in prohibiting Barlow from making that argument to the jury. See Collier v. State, 101 Nev. 473, 481-82, 705 P.2d 1126, 1131-32 (1985) (explaining that the district court abused its discretion by placing undue limits on the argument of counsel); cf . Lloyd v. State, 94 Nev. 167, 169, 576 P.2d 740, 742 (1978) ("[I]t is improper for an attorney to argue legal theories to a jury when the jury has not been instructed on those theories.").

In Evans, this court set forth a jury instruction for use in capital penalty hearings. 117 Nev. at 635-36, 28 P.3d at 516-17. That instruction provides, in part: "if at least one of you determines that the mitigating circumstances outweigh the aggravating, the defendant is not eligible for a death sentence," and, if the jury makes that determination, they must then "consider all three types of evidence in determining a sentence other than death." Id. at 636, 28 P.3d at 517. While the Evans instruction primarily addresses the jury's consideration of evidence during deliberations, it also provides guidance about the steps the jury must follow before imposing a sentence. Id. at 635-36, 28 P.3d at 516-17.

The Evans instruction accurately reflects the statutory scheme for capital penalty hearings. Under NRS 175.554( 1), the district court must instruct the jury on the aggravating and mitigating circumstances alleged by the parties. The jury is charged to first determine unanimously if the State has proved at least one aggravating circumstance

507 P.3d 1192

beyond a reasonable doubt. NRS 175.554(2)(a), (4). Next, each juror must individually determine whether any mitigating circumstances exist. NRS 175.554(2)(b) ; see also Jimenez v. State, 112 Nev. 610, 624, 918 P.2d 687, 696 (1996) ("There [is] no constraint on the right of individual jurors to find mitigators, such as a requirement of unanimity or proof by a preponderance of the evidence or any other standard."). The jurors then weigh the aggravating and mitigating circumstances on their individual moral scales as part of "the selection phase of the capital sentencing process ... to determine what penalty shall be imposed." Lisle, 131 Nev. at 366, 351 P.3d at 732 (internal quotation marks omitted); see also Jeremias v. State, 134 Nev. 46, 58-59, 412 P.3d 43, 54 (2018) (reaffirming that weighing the aggravating and mitigating circumstances is part of the selection phase, which does not require proof beyond a reasonable doubt). If the jurors unanimously agree that there are no mitigating circumstances sufficient to outweigh the aggravating...

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4 cases
  • Hall v. State, 81994
    • United States
    • Nevada Supreme Court of Nevada
    • December 8, 2022
    ...outweigh the aggravating circumstances, the death penalty is no longer a sentencing option. See Barlow v. State, 138 Nev., Adv. Op. 25, 507 P.3d 1185, 1199-00 (2022). Therefore, the district court did not err in denying this ineffective-assistance-of-counsel claim without conducting an evid......
  • Roderos v. State, 83785
    • United States
    • Nevada Supreme Court of Nevada
    • August 26, 2022
    ...error). However, Michael has not demonstrated any error, so there is nothing to cumulate. See Barlow v. State, 138 Nev., Adv. Op. 25, 507 P.3d 1185, 1199 (2022) (concluding that errors did not cumulate as there was only one error). Accordingly, we ORDER the judgment of conviction AFFIRMED. ......
  • Richards v. State, 83868-COA
    • United States
    • Nevada Court of Appeals of Nevada
    • November 3, 2022
    ...State's exercise of four peremptory challenges to strike one African American and three Hispanic veniremembers. 138 Nev., Adv. Op. 25, 507 P.3d 1185, 1197 (2022). The district court denied Barlow's Batson challenge. Id. The supreme court affirmed the district court, concluding that "[m]erel......
  • Richards v. State, 83868-COA
    • United States
    • Nevada Court of Appeals of Nevada
    • November 3, 2022
    ...State's exercise of four peremptory challenges to strike one African American and three Hispanic veniremembers. 138 Nev., Adv. Op. 25, 507 P.3d 1185, 1197 (2022). The district court denied Barlow's Batson challenge. Id. The supreme court affirmed the district court, concluding that "[m]erel......

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