Canape v. State

• Decision Date: 09 September 1993
• Docket Number: No. 20461,20461
• Citation: 859 P.2d 1023,109 Nev. 864
• Parties: Richard Allen CANAPE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1023

859 P.2d 1023

109 Nev. 864

Richard Allen CANAPE, Appellant, v. The STATE of Nevada, Respondent.

No. 20461.

Supreme Court of Nevada.

Sept. 9, 1993.

Morgan D. Harris, Public Defender, Susan Deems Roske, and Stephen J. Dahl, Deputies, Clark County, for appellant.

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

OPINION

YOUNG, Justice.

A jury convicted appellant Richard Allen Canape of murder in the first degree and armed robbery of the murder victim. Canape was sentenced to death. For the reasons set forth below, we affirm the convictions and the death sentence.

FACTS

On October 4, 1988, Manuel Toledo, a New Jersey resident, arrived in Las Vegas to go on a hunting trip in southern Utah. Toledo's wife testified that her husband always carried two wallets on his hunting trips: a large wallet containing credit cards, identification, and spending cash; and a smaller wallet containing additional cash for emergency purposes. She testified that she helped her husband pack for the October 1988 trip and that he had both wallets when he left New Jersey.

After arriving in Las Vegas, Toledo rented a car and, several hours later, phoned On October 7, 1988, Robert Jiminez was driving on I-15 toward Las Vegas when his car developed a vapor lock. He coasted to a stop behind another vehicle parked on the roadside. Jiminez got out of his vehicle and checked under its hood. He noticed debris scattered around the other vehicle, including gas cans, a pair of eye glasses, some twine and a watch. As Jiminez walked back to his car, he saw Toledo's body lying down an embankment from the highway. He flagged down a passing motorist who contacted the police. While waiting for the police to arrive, Jiminez noticed a white hat lying on the ground halfway between the car and the body.

his wife to inform her that he had arrived in Cedar City, Utah. On October 6, 1988, Toledo again called his wife to tell her that he had bagged an elk and would drive back to Las Vegas to catch a late flight home. Toledo left Cedar City and proceeded toward Las Vegas on Interstate Highway 15. He apparently ran out of gas about ten miles north of Las Vegas. At approximately 9:20 p.m., Toledo entered an AM-PM Mini-Mart [109 Nev. 867] a few blocks off I-15. The cashier at the AM-PM testified that Toledo filled two gas cans and that she loaned him a third can which he also filled. Toledo told the cashier that someone waiting outside was going to drive him back to his car. The cashier looked out the window and saw Toledo get into a car driven by a black male with sideburns. The driver wore a white hat.

Examination of Toledo's body revealed that he died from two gunshot wounds fired from a nine-millimeter weapon. Authorities found two shell casings near the body. When the police removed the body, they recovered a spent bullet which had passed through the victim's head and lay on the ground underneath the body. Police found a white hat almost in a direct line between the car and the body, about halfway down the embankment. Examination of Toledo's person revealed one wallet containing $1,400, but no driver's license, credit cards or other identification. Toledo's other wallet, the larger one in which his wife stated he carried his credit cards, identification, and spending cash was missing and never recovered.

Seventeen days after the Toledo murder, police arrested Canape for attempted armed robbery of a liquor store in Las Vegas. At the time of his arrest, Canape possessed a nine-millimeter, semi-automatic pistol. A Las Vegas Metro Police Department weapons expert examined the gun. The weapons expert compared shell casings and bullets from test firing the gun to the shell casings found at the murder scene and the bullet found under the victim's head. The weapons expert positively concluded that the nine-millimeter pistol was the weapon used to kill Manuel Toledo.

Following his arrest for the liquor store robbery, police towed Canape's car to their impound lot. The cashier from the AM-PM store where Toledo filled his gas cans viewed Canape's car and told the police that it looked similar to the car in which Toledo rode away on the night of his murder. The cashier also stated that the hat found at the murder scene looked similar to the one the car's driver wore on the night he drove away with Toledo.

Canape was charged with the murder and robbery of Manuel Toledo. At trial, Mrs. Toledo testified to the circumstances of her husband's hunting trips to Utah, by way of Las Vegas. She also recounted that her husband always carried two wallets. She stated that the hat found at the murder site did not belong to her husband and that she had never seen it before.

A search of Canape's car following his robbery arrest uncovered a photograph album containing pictures of Canape. In one of these photos, Canape is pictured wearing a white hat similar to the one found at the murder scene. The cashier from the AM-PM testified that the man in the photo resembled the man with whom Toledo rode away on the night of the murder.

The search of Canape's car also revealed a length of twine. A hair and fiber analyst testified that the twine from Canape's vehicle was, within scientific certainty, the same type as that found at the crime scene. The same expert testified that hair samples The jury found Canape guilty of murder with a deadly weapon while in the commission of a robbery. He was also convicted of the robbery as a separate offense. In the penalty phase, the State presented evidence of four aggravating circumstances. The State offered evidence that Canape had a five-year sentence for a 1983 felony conviction in Hawaii. The defense did not present any mitigating evidence, electing instead to dispute the evidence supporting the aggravating factors. Canape received a death sentence.

taken from Canape were similar to hair found in the hat recovered at the murder scene.

DISCUSSION

On appeal Canape argues that (1) the State presented insufficient evidence concerning robbery, and the trial court erred in its instructions to the jury regarding this crime; (2) the failure to provide a complete record on appeal amounted to a denial of Canape's right to due process; (3) prosecutorial misconduct deprived Canape of a fair penalty hearing; (4) the court erred in its reasonable doubt jury instruction; (5) requiring Canape to wear shackles during the penalty phase violated his constitutional rights; and (6) the trial court erred in its instruction to the jury regarding aggravating circumstances.

We hold that all of Canape's contentions are without merit.

I. Sufficiency of evidence of robbery.

Canape first contends that the State presented insufficient evidence to support instructing the jury on robbery, both as a separate offense and as a basis for invoking the felony murder doctrine. The standard of review for sufficiency of evidence upon appeal "is not whether this court is convinced of the defendant's guilt beyond a reasonable doubt, but whether the jury, acting reasonably, could be convinced to that certitude by evidence it had a right to accept." Edwards v. State, 90 Nev. 255, 258-259, 524 P.2d 328, 331 (1974).

Canape points out that the cashier from the AM-PM was the only person other than the killer who had contact with Toledo before his death after the victim left Utah to return to Las Vegas. Canape argues that the State presented no proof that Toledo carried his second wallet at the time of his death and presented no evidence that Toledo paid for gas with a credit card. Canape also points out that the victim had over $1,400 on his person, that his watch was not taken, that his luggage sat undisturbed, and that his hunting rifle lay untouched in the rental car's trunk. From these facts, Canape asserts that the State failed to establish robbery as a basis for Toledo's death. He argues that any theory on the fate of Toledo's other wallet is necessarily speculative: there was no evidence that Toledo possessed the second wallet on the day of his death.

We acknowledge that evidence of robbery in this case was entirely circumstantial. However, we have long recognized that circumstantial evidence may constitute the sole basis for a conviction. Deveroux v. State, 96 Nev. 388, 391, 610 P.2d 722, 724 (1980). In support of the robbery theory, the State adduced the following evidence: (1) Toledo normally carried two wallets, a large one and a small one, but only the small wallet was found; (2) the large wallet, containing Toledo's credit cards and identification, was never found; (3) the large wallet also contained Toledo's spending cash; (4) shortly before his death, Toledo purchased two one-gallon gas cans from a 7-11 market and borrowed a third gas can from the cashier at a nearby AM-PM market, where Toledo purchased and paid for gas; (5) no change from the purchase of the gas cans nor gas was found with Toledo's other personal property near his car or on his body; (6) the small wallet with $1,400 which Toledo kept for an emergency was found on his body in a pants pocket, apparently overlooked by his killer; (7) when Toledo purchased the gas, the cashier from AM-PM testified that Toledo pointed to a car with a black man wearing a white hat who Toledo said was going to take the gas and Toledo back to his vehicle; (8) the cashier testified that when Toledo pointed to the car, the driver slid down in the seat and pulled a white hat over his face; (9) the cashier further testified that the picture of Canape in a white hat found in his photograph album looked similar to the "image I have of the person whom I saw in the car"; (10) police found evidence of a struggle on the ground by Toledo's car; (11) two of the gas cans had been emptied into Toledo's car, but the third can still contained some gas and there was evidence of spilled gas beneath the gas tank; (...