Chappell v. State, 49478.

Citation281 P.3d 1160
Case DateOctober 20, 2009
CourtSupreme Court of Nevada

281 P.3d 1160

James Montell CHAPPELL, Appellant,
The STATE of Nevada, Respondent.

No. 49478.

Supreme Court of Nevada.

Oct. 20, 2009.

Special Public Defender David M. Schieck

Attorney General Catherine Cortez Masto/Carson City

Clark County District Attorney David J. Roger


This is an appeal from a judgment of conviction, pursuant to a jury verdict, sentencing appellant James Montell Chappell to death for first-degree murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.

On December 31, 1996, Chappell was convicted, pursuant to a jury verdict, of burglary, robbery with the use of a deadly weapon, and first-degree murder with the use of a deadly weapon. The district court sentenced Chappell to serve a term of 4 to 10 years in prison for burglary and two consecutive terms of 6 to 15 years for robbery with the use of a deadly weapon. A jury sentenced him to death for first-degree murder with the use of a deadly weapon. On appeal, this court affirmed Chappell's convictions and sentence of death. Chappell v. State, 114 Nev. 1403, 972 P.2d 838 (1998).

On October 19, 1999, Chappell filed a post-conviction petition for a writ of habeas corpus in the district court. The district court granted Chappell's petition in part, vacated his sentence of death, and ordered a new penalty hearing. This court affirmed. Chappell v. State, Docket No. 43493 (Order of Affirmance, April 7, 2006).

On May 10, 2007, following Chappell's second penalty hearing, a jury again sentenced him to death. This appeal followed.

Chappell raises thirteen claims of error arising from his second penalty hearing. Specifically, Chappell claims that his death sentence should be vacated because: (1) the sexual assault aggravator is invalid and unsupported by the evidence; (2) NRS 177.055(3), which governs this court's review of a death sentence, is unconstitutional; (3) his constitutional rights were violated when the district court declined to order the District Attorney's Office to conduct a second review of his case; (4) the district court erred in failing to dismiss three potential jurors for cause; (5) the district court erred in admitting unreliable hearsay evidence; (6) the district court erred in admitting two presentence investigation reports; (7) the district court erred in admitting improper victim impact testimony; (8) the district court erred in admitting Chappell's previous guilt-phase testimony; (9) the prosecution committed five instances of misconduct; (10) the district court erred in failing to instruct the jury that it had to find that the mitigators did not outweigh the aggravators beyond a reasonable doubt; (11) the jury erred in failing to find certain mitigating circumstances; (12) instructional error occurred during the guilt phase of his trial; and (13) he was prejudiced by cumulative error.

We conclude that each of these claims lacks merit. We further conclude that, pursuant to the mandatory review of NRS 177.055, there is no indication that Chappell's death sentence was improperly imposed. Therefore, we affirm the judgment of conviction.

Sexual assault aggravator

The sole aggravator found by the jury was that the murder was committed while Chappell was engaged in the commission of a sexual assault. Chappell claims that the sexual assault aggravator should be stricken because (1) insufficient evidence supported it and (2) the aggravator is invalid under McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004).

Sufficiency of the evidence

Our review of the record reveals sufficient evidence to establish the sexual assault aggravator beyond a reasonable doubt as determined by a rational trier of fact. See Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980); see also Origel–Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In particular, we note evidence presented at the penalty hearing showing that: (1) the victim, Deborah Panos, was curled up in the fetal position, fearful, and crying when she found out that Chappell was at large; (2) Panos had told Chappell that their relationship was over; (3) Panos was in the process of moving where Chappell could not find her; (4) Panos was beaten approximately 15 to 30 minutes prior to being stabbed to death; and (5) despite Chappell's assertions that he did not ejaculate into Panos during their sexual encounter, semen matching his DNA was recovered from her vagina.

Although Chappell claims that the sexual encounter was consensual, we conclude that the jury could reasonably infer from the evidence presented “that either Panos would not have consented to sexual intercourse under these circumstances or was mentally or emotionally incapable of resisting Chappell's advances, and that Chappell therefore committed sexual assault.” Chappell v. State, 114 Nev. 1403, 1409, 972 P.2d 838, 842 (1998).

Application of McConnell

Chappell contends that the sexual assault aggravator is invalid pursuant to this court's decision in McConnell because the State divided the felonies charged and used two (burglary and robbery) to prove felony murder and the remaining crime (sexual assault) as an aggravating circumstance. Chappell's claim is without merit.

In McConnell, this court deemed “it impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated.” Id. at 1069, 102 P.3d at 624. We also proscribed the practice of “selecting among multiple felonies that occur during ‘an indivisible course of conduct having one principal criminal purpose’ and using one to establish felony murder and another to support an aggravating circumstance.” Id. at 1069–70, 102 P.3d at 624–25 (quoting People v. Harris, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433, 449 (Cal.1984), rejected by People v. Proctor, 4 Cal.4th 499, 15 Cal.Rptr.2d 340, 842 P.2d 1100, 1129–30 (Cal.1992)) (internal footnote omitted).

During the course of Chappell's direct appeal and post-conviction proceedings, three aggravators were stricken—a torture aggravator and the aggravators for robbery and burglary 1—leaving the sexual assault aggravator as the only aggravator alleged at Chappell's second penalty hearing. Chappell now claims that the State's decision to “split” the robbery, burglary, and sexual assault felonies and use the sexual assault only as an aggravator violated McConnell. Based on the evidence, however, we conclude that Chappell committed the sexual assault with a criminal purpose distinct from the burglary and robbery. See McConnell, 120 Nev. at 1069–70, 102 P.3d at 624–25. Therefore, Chappell's claim is without merit.

NRS 177.055(3)

Chappell argues that NRS 177.055(3) is unconstitutional because it grants this court “unfettered discretion” to impose a sentence of less than death upon the finding of a constitutional violation. Chappell further argues that allowing this court to impose a sentence of less than death on direct appeal, but not in post-conviction proceedings, violates his constitutional right to equal protection. Chappell's claims are without merit.

NRS 177.055(3) was not the basis for Chappell's second penalty hearing. That hearing was the result of the district court's finding that Chappell's penalty phase counsel was ineffective rather than from this court's independent review of his death sentence. Because this court did not conduct a mandatory review of Chappell's death sentence during his post-conviction appeal—that had already been done on direct appeal—Chappell's second penalty hearing did not result from the application of NRS 177.055.

Likewise, Chappell's equal protection argument lacks merit. The legal standards applicable to a habeas proceeding are different from those applicable on direct appeal. A prisoner's equal protection rights are not violated when different statutes are applied in these two distinct proceedings. Because a defendant on direct appeal is not similarly situated to a defendant in post-conviction proceedings, there is no constitutional violation merely because the legal standards and statutory schemes are different during different stages of the legal process.

Review by the District Attorney's Death Review Committee

Chappell argues that his constitutional rights were violated when the State refused to resubmit his case to the District Attorney's Death Review Committee after remand for a new penalty hearing to reconsider its decision to seek the death penalty. Specifically, Chappell argues that by failing to review his case a second time and by relying on a 12–year–old decision to seek the death penalty, the State failed to consider contemporary standards of decency, thereby violating his due process rights and his right to be free from cruel and unusual punishment. See Roper v. Simmons, 543 U.S. 551, 594, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (O'Connor, J., dissenting). Furthermore, Chappell argues that his equal protection rights were violated because the State failed to treat him in the same manner as other defendants who faced capital proceedings at the same time. Chappell's claims are without merit.

As to Chappell's due process claim, he fails to demonstrate that his due process rights were violated. The Due Process Clause prohibits a prosecutorial decision that is “based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification.’United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)). “[T]he decision to seek the death penalty is a matter of prosecutorial discretion, to be exercised within the statutory limits set out in NRS 200.030 and NRS 200.033.” Thomas v. State, 122 Nev. 1361, 1374, 148 P.3d 727, 736 (2006). Matters of prosecutorial discretion are “ ‘within the entire...

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