Colwell v. State

• Decision Date: 24 June 1996
• Docket Number: No. 27570,27570
• Citation: 919 P.2d 403,112 Nev. 807
• Parties: Lawrence COLWELL, aka Charles Durrant, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 403

919 P.2d 403

112 Nev. 807

Lawrence COLWELL, aka Charles Durrant, Appellant, v. The STATE of Nevada, Respondent.

No. 27570.

Supreme Court of Nevada.

June 24, 1996.

State Public Defender and James P. Logan, Appellate Deputy Public Defender, Carson City, for Appellant.

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

OPINION

PER CURIAM:

On March 10, 1994, appellant Lawrence Colwell, aka Charles Durrant, and his girlfriend, Merillee Paul, were at the Tropicana Hotel in Las Vegas. They devised a plan whereby Paul would pretend she was a prostitute, find a male victim, go with him back to his room and rob him. Seventy-six-year-old Frank Rosenstock was the unsuspecting victim of their nefarious plan. Paul went with Rosenstock back to his room and persuaded him to get into the bathtub. While he was in the bathtub, Paul searched through his belongings for money and valuables. Without success in locating anything of value, she telephoned Colwell in the hotel lobby. Colwell told her to "wait there" and he proceeded up to the room.

Colwell knocked on the door, posing as a security guard, and Paul opened the door to let him enter. Colwell showed a fake badge and told Rosenstock he was being arrested for solicitation. Colwell handcuffed Rosenstock. Colwell found Rosenstock's wallet and took it from him. The wallet contained credit cards and cash.

While Rosenstock was handcuffed, Colwell proceeded to take his belt and wrap it around Rosenstock's throat. Colwell looped the belt through the buckle and strangled Rosenstock. In the course of the strangulation, Colwell slid Rosenstock off the bed down to the floor. He had his foot on Rosenstock's shoulders as he pulled on the belt; as he did so, Colwell told Paul that it took a person six to eight minutes to die from strangulation. Colwell strangled Rosenstock for at least five minutes. Finally, when Rosenstock's face was purple and Colwell could tell he was no longer breathing, he removed the belt.

Colwell and Paul then wiped areas of the room down with wet rags to remove fingerprints. They took a number of items from the room and placed them in Rosenstock's suitcase, including the belt Colwell used to strangle Rosenstock and many other items, including glasses and ashtrays, which they might have touched. Colwell kept the buckle from the belt. When finished, they exited the room, leaving Rosenstock lying face-down and dead on the floor. The two then went to a room at the Royal Oasis Motel.

The two left Las Vegas and went to Palm Springs where they met Kenneth Abell. Colwell told Abell about killing Rosenstock. Using Abell's car, Colwell and Paul drove to Oregon. In Oregon, Paul turned herself in to the authorities. Paul eventually entered into a plea agreement with the State whereby she agreed to plead guilty to first degree murder and testify against Colwell; in exchange for this agreement, the State would recommend a sentence of life with the possibility of parole.

Colwell was arrested and arraigned; the State informed the court it would not be seeking the death penalty. Colwell desired to represent himself and so a hearing was held for the purpose of canvassing Colwell pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Prior to this hearing, Colwell had agreed with the State to plead guilty to all charges on the condition that the State change its position and diligently seek the death penalty. The district court filed the Notice of Intent to Seek Death Penalty.

Colwell was canvassed and allowed to represent himself. However, the court appointed standby counsel for him. Colwell was allowed to plead guilty to one count of murder in the first degree pursuant to NRS 200.010, NRS 200.020 and NRS 200.030, one count of burglary pursuant to NRS 205.060, and one count of robbery of a victim 65 years of age or older pursuant to NRS 193.167 and NRS 200.380. Colwell requested that the penalty hearing be conducted as soon as possible.

During the two-day penalty hearing before a three-judge panel, Colwell failed to conduct meaningful cross-examination and in fact attempted to bring out damaging evidence that the prosecution had failed to address. In addition, Colwell made no objections to the State's evidence. In fact, Colwell's failure to make any objections was so obvious that members of the three-judge panel felt compelled to comment. Further, Colwell refused to introduce any mitigating evidence. Prior to closing arguments, the State as well as the panel explained to Colwell his right of allocution and his opportunity to present evidence. During closing argument, the State argued both the existence of seven aggravating factors and the non-existence of any mitigating evidence. Colwell's closing argument was a plea that he be put to death. Prior to sentencing, Colwell was given one final chance to introduce mitigating evidence; he declined. The panel found the existence of four of the seven alleged aggravating circumstances and found that no mitigating circumstances existed. By unanimous vote, the panel sentenced Colwell to death.

Colwell's appointed appellate counsel appeals Colwell's death sentence on the following grounds: (1) the death penalty was unconstitutionally imposed in this case because the constitutionally-mandated narrowing function could not be implemented; (2) this court cannot conduct meaningful review of the death sentence in this case; (3) NRS 213.085 renders Nevada's death penalty scheme unconstitutional; (4) Nevada's three-judge panel procedure is unconstitutional; (5) Nevada's death penalty scheme does not sufficiently narrow the categories of eligible defendants and is thus unconstitutional; (6) only those aggravating circumstances set forth in NRS 200.033 may constitutionally be used as aggravating circumstances; and (7) the death penalty is cruel and unusual punishment in all circumstances in violation of the Eighth Amendment and the Nevada Constitution. For the following reasons, we conclude that Colwell's counsel's claims are meritless.

Colwell's counsel first claims that the death penalty was unconstitutionally imposed in this case because the constitutionally-mandated procedure for narrowing the class of death-eligible defendants could not be implemented given that Colwell not only intentionally chose not to present mitigating evidence but affirmatively tried to skew the evidence presented to aid the State in the presentation of its case at the penalty hearing. We conclude that a criminal defendant is entitled to represent himself in whatever manner he wishes, whether that be by introducing mitigating evidence, by not introducing mitigating evidence or even by actively seeking the death penalty. See Bishop v. State, 95 Nev. 511, 516-17, 597 P.2d 273, 276 (1979) (holding that when a defendant knowingly and voluntarily waives his right to counsel, his refusal to present a defense does not negate his pro per election and the sentencing tribunal has no duty to delve into mitigating evidence referred to by standby counsels); State v. Felde, 422 So.2d 370, 394-95 (La.1982), cert. denied, 461 U.S. 918, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983) (holding, in effect, that Faretta allows a defendant to affirmatively present evidence that he deserves the death penalty and to, in closing argument, urge the imposition of the death penalty). ¹ Therefore, we hold that Colwell's actions did not render his resulting sentence unconstitutional.

Second, Colwell's counsel contends that this court cannot conduct meaningful appellate review of Colwell's death sentence pursuant to NRS 177.055(2) because Colwell intentionally failed to challenge evidence, intentionally failed to present mitigating evidence and aided the State in presenting its case. ² Given that there is no requirement that a defendant present mitigating evidence or put on a defense in a death penalty hearing, we conclude that there can be no infirmity in the record on review if the record does not contain mitigating evidence, and therefore this court can meaningfully review Colwell's death sentence.

Third, Colwell's counsel claims that NRS 213.085 renders Nevada's death penalty scheme unconstitutional by completely denying him a chance for clemency. ³ Colwell's counsel is imprecise in his argument. "Clemency" encompasses the power to commute a sentence or to pardon. Cf. NRS 213.095 (equating the granting of clemency with remitting a fine or forfeiture, commuting a sentence or granting a pardon). Commutation is the changing of one sentence to another while a pardon absolves a defendant of the crime altogether. See Pinana v. State, 76 Nev. 274, 281-83, 352 P.2d 824, 829 (1960) (parole, pardon and commutation are each distinguishable). NRS 213.085 addresses only an aspect of commutation and does not address other forms of clemency, including the pardon power. Thus, NRS 213.085 does not completely deny the opportunity for "clemency," as Colwell's counsel contends, but rather modifies and limits the power of commutation. Accordingly, Colwell's counsel's claim lacks merit.

Fourth, Colwell's counsel contends that the three-judge panel utilized in this case is unconstitutional for two reasons. His first argument is that the three-judge panel procedure creates a special court unconstitutionally encroaching on the judicial power and inconsistent with the constitutional jurisdiction of the district courts ⁴ or an improper hybrid court composed of one judge exercising judicial power and two judges functioning in a non-judicial role.

We hold that this argument lacks merit because (1) the Nevada Constitution contains no language prohibiting the legislature from providing that district judges must act as a collegial body in the exercise of certain proper judicial functions, such as sentencing, and (2) the legislature clearly has the power to regulate procedure...