Bennett v. State

• Decision Date: 23 February 1990
• Docket Number: No. 19706,19706
• Citation: 787 P.2d 797,106 Nev. 135
• Parties: Edward BENNETT, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 797

787 P.2d 797

106 Nev. 135

Edward BENNETT, Appellant, v. The STATE of Nevada, Respondent.

No. 19706.

Supreme Court of Nevada.

Feb. 23, 1990.

Rehearing Denied April 17, 1990.

Potter & Associates, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty., Daniel M. Seaton, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Following a jury trial, the district court convicted appellant Edward Bennett of attempted robbery with use of a deadly weapon, murder with use of a deadly weapon, and attempted murder with use of a deadly weapon. At the conclusion of the penalty phase, the jury found that aggravating circumstances outweighed the mitigating circumstances. The district court sentenced appellant to death pursuant to the jury's verdict. On appeal, appellant raises numerous issues, none of which have merit.

The Facts

On February 8, 1988, appellant purchased a .45 caliber handgun at the Van Wagenen Finance Company, a pawn shop in Provo, Utah. Appellant was 18 years old. On February 9, 1988, appellant and Joe Beeson entered the Stop N'Go Market, located at 1201 E. Sahara Avenue, Las Vegas. Derrick Franklin, a black man, entered the store directly after appellant. As Franklin went to the back of the store, Beeson placed a piece of candy on the counter. As Michelle Moore, the clerk at the cash register, rang up the candy, appellant pulled out his .45 caliber handgun and shot her in the face, killing her instantly. Franklin later testified that there was no conversation, argument, or shouting between the parties. Appellant then gave the gun to Beeson and told him to "get the nigger," referring to Franklin. While appellant jumped over the counter and unsuccessfully attempted to open the cash drawer, Beeson approached Franklin with the gun. Franklin pleaded with Beeson not to shoot him and ran out of the store. Beeson fired at Franklin and continued firing until one of the shots struck Franklin in the leg.

The police found appellant's fingerprints on the door and the cash register counter at the Stop N'Go Market. The police also determined that appellant owned the gun that was used to kill Ms. Moore.

On March 5, 1988, appellant told his friend, Jeffery Chidester, about the circumstances surrounding the murder and bragged that he and Beeson were on a "killing spree." Chidester reported the conversation to the Utah police. Several days later, the police department informed Chidester that he was entitled to a reward for providing them with this information. Chidester received $3,000.00 prior to testifying at the preliminary hearing and $29,000.00 after the preliminary hearing.

The Utah police obtained a warrant to search appellant's house in Lehi, Utah. Appellant's father answered the police officer's knock on the front door. After the officers advised appellant's father why they were there, he let the officers into the house. While searching for clothing listed in the warrant, the police officers observed some of appellant's "poetry" on pieces of paper. ¹ The officers seized appellant's poetry and thereafter arrested appellant.

The state of Nevada subsequently charged appellant with attempted robbery with use of a deadly weapon, murder with use of a deadly weapon, and attempted murder with use of a deadly weapon. Over appellant's objections at trial, the district court admitted the poetry into evidence. The jury found appellant guilty of the crimes charged. At the conclusion of the penalty hearing, the jury found that the state had proven four aggravating circumstances beyond a reasonable doubt: (1) that the murder was committed by a person who knowingly created a risk of death to more than one person; (2) that the murder was committed while the person was engaged in the commission of a burglary; (3) that the murder was committed while the person was engaged in attempted robbery; and (4) that the murder was committed at random and without apparent motive. ² NRS 200.033. The jury found that the aggravating circumstances outweighed the mitigating circumstances and imposed a sentence of death. This appeal from the judgment of conviction and the imposition of the death penalty followed.

The Guilt Phase

Relying on Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978), appellant argues that the district court violated his right to due process when it admitted Jeffery Chidester's testimony. Specifically, appellant claims that Chidester was compelled to testify in a particular fashion in order to obtain favorable treatment. Franklin, however, is distinguishable on the facts alone. In that case, the witness was an accomplice to the crime, and charged with second degree murder rather than first degree murder in return for his testimony against his accomplice.

Unlike Franklin, Chidester was not an accomplice to the murder. Chidester voluntarily went to the local police following appellant's confession. The officers did not threaten Chidester in any manner to get his cooperation. After Chidester made his statement to the Las Vegas Police, his only request in return was to "get me out of town." Chidester did not find out about the reward until several days after he made his statement to the police. Therefore, Chidester's testimony was properly admitted.

Appellant also asserts that Chidester's alleged inconsistent testimony was insufficient evidence to support his conviction, and that Chidester lied during the preliminary hearing when he denied working for the Utah Police Department as an informant on prior occasions. Any inconsistencies in Chidester's testimony, however, were brought out during cross-examination. Additionally, we note that the evidence supporting the trial jury's verdict was otherwise substantial. ³ In light of that substantial evidence, Chidester's testimony during the preliminary hearing did not prejudice appellant's substantive rights at trial.

Evidentiary Rulings

Appellant contends that the district court erred by admitting his poetry that was seized during the search of his house. Specifically, appellant contends that the search and his arrest were unlawful and that the fruits thereof should have been suppressed. We disagree.

Valid consent to search can be obtained from a third party who possesses common authority over the premises or has other sufficient relationship to the premises. Snyder v. State, 103 Nev. 275, 738 P.2d 1303 (1987). In addition, once a search warrant is obtained and the entry is lawful, the police are where they have a right to be and may arrest a resident provided they have probable cause to do so. State v. Ruth, 181 Conn. 187, 435 A.2d 3, 6 (1980). In the present case, the search was lawful because appellant's father voluntarily let the police officers inside his house. Moreover, the police entry and search were lawfully conducted pursuant to a properly executed search warrant. Lastly, at the time of appellant's arrest, the police officers had probable cause to believe appellant had committed the felony. See Washington v. State, 94 Nev. 181, 183, 576 P.2d 1126, 1128 (1978). ⁴ Under these circumstances, we conclude that the search and subsequent arrest were lawful.

Appellant also contends that the district court erred by denying his motion to suppress the items seized that were not listed in the warrant. Specifically, appellant contends that seizure of the poetry violated the particularity requirement set out in Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976). We disagree.

A warrantless seizure may be justifiable under the "plain view" doctrine. Johnson v. State, 97 Nev. 621, 624, 637 P.2d 1209, 1211 (1981). The plain view doctrine requires that (1) the officers are lawfully present at the point of observation and (2) the discovery is inadvertent. Id. The officers obtained a valid warrant to search appellant's residence for specified items of clothing. The officers had probable cause to believe the clothes would be in appellant's bedroom. See Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). Therefore, the officers were lawfully present in the bedroom, and when they inadvertently observed the poetry and noticed that it dealt with death and killing, the officers lawfully seized the poetry. Thus, the discovery of the poetry was inadvertent because the officers were looking for clothing when they noticed the poetry. Therefore, the district court did not err by admitting the seized poetry pursuant to the plain view doctrine.

Prosecutorial Misconduct

Appellant contends that there were several instances of prosecutorial misconduct. First, appellant contends that the prosecutor improperly interjected his personal opinion in his argument to the jury. Specifically, appellant complains that the prosecutor improperly quoted Harry Emerson Fosdick as saying "[a] person totally wrapped up in himself makes a small package," and then stated, "[i]n view of the State of Nevada, you are a very small package." Under these circumstances, however, we conclude that the prosecutor did not express his personal opinion on the matter. See, e.g., Aesoph v. State, 102 Nev. 316, 721 P.2d 379 (1986). Even assuming that the prosecutor's remarks constituted an improper expression of his personal opinion, as we have frequently noted, where, as here, a guilty verdict is "free from doubt, even aggravated prosecutorial remarks will not justify reversal." See Yates v. State, 103 Nev. 200, 206, 734 P.2d 1252, 1256 (1987). Here, however, the prosecutor's statement was neither aggravated misconduct, highly inflammatory nor prejudicial. Accordingly, appellant's contention is without merit.

Next, appellant argues that the prosecutor engaged in forensic misconduct by telling the jury during the penalty phase: "You possess the power to guarantee that Edward Bennett will never again make a healthy, vibrant, caring woman into a corpse." There was evidence...