Dawson v. State, 17045
| Citation | 103 Nev. 76,734 P.2d 221 |
| Decision Date | 24 March 1987 |
| Docket Number | No. 17045,17045 |
| Parties | , 70 A.L.R.4th 657 Henry Daniel DAWSON, Jr., Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Dawson stands convicted of first degree murder and is under sentence of death. The conviction is sustained, but the case is returned to the trial court for resentencing.
Dawson's primary claims of error relate to the penalty phase of these proceedings. 1
Dawson's conviction of first degree murder stems from a brutal kidnapping, beating and rape of a Las Vegas woman. Dawson is black; the victim was white.
The aggravating circumstances upon which the death penalty is based are kidnapping and attempted sexual assault. Dawson claims that there was insufficient evidence before the jury at the penalty hearing to support a finding beyond a reasonable doubt of the commission of these crimes.
That Dawson kidnapped the victim is supported by the evidence. Although the victim may have entered Dawson's vehicle voluntarily, it is improbable under the circumstances that this victim, described as a "very reliable employee," would have voluntarily left unattended her work station at a gas station. The kidnap is further supported by Dawson's admission that he forced the victim to remain in his car by use of a "sticker" being held against her body.
That Dawson at least attempted to assault the victim sexually is also supported by the evidence. Even though no physical evidence of rape was discovered, the victim's body was found nude from the shoulders down.
The jury was justified, from the evidence in this case, in finding beyond a reasonable doubt that Dawson kidnapped the victim and attempted sexual assault, indicating that there was some kind of sexual insult inflicted on the victim by Dawson.
Dawson claims that his death sentence should be vacated by reason of prejudicial statements made by the prosecutor during closing argument at the penalty hearing. First, Dawson complains of the prosecutor's aside to Dawson during argument, "Bye-bye," which Dawson takes to mean the prosecutor's implication that in his opinion Dawson deserved the death penalty. The entire objectionable but unobjected-to remark is set out in the margin. 2
For the prosecutor to bid adieu to the defendant is more of a prediction than an expression of opinion. We have condemned the prosecutor's expression of opinion as to guilt or to deserved penalty because such an opinion unfairly invites undue reliance on conclusions personally endorsed by the prosecuting attorney as representative of the power and dignity of the state. Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985). In Collier, we condemned the prosecutor's melodramatic apostrophe: "Gregory Alan Collier, you deserve to die."
The prosecutor's farewell in the case before us falls short of being an expression of an opinion on whether Dawson deserved the death penalty or not. Defense counsel did not object.
If prosecuting counsel's statement, "bye-bye," to a defendant who himself has used the expression in the course of the criminal investigation is inappropriately facetious, it does not rise to such a level of prejudice to the defendant as to move this court to set aside, on this ground, the jury determination that the death penalty should be imposed.
Similarly, the prosecutor's words, "I say let the light go out on Henry Dawson," is merely an invocation to the jury asking that it impose the death penalty, in the same manner that defense counsel was beseeching the jury to spare his client. 3
Although the prosecutor did announce in his aside to the defendant that he had an opinion about the defendant and the crime, he did not, as we see it, directly or indirectly, express to the jury that in his opinion, as a state official, Dawson deserved the death penalty.
The prosecutor did, however, approach one subject in his argument to the jury that resulted in unacceptable prejudice to Dawson in a death penalty hearing. Although the prosecutor's comment had evidentiary support from testimony admitted during the guilt phase of Dawson's trial, its reiteration during the penalty phase of the trial unduly implicated consideration of race. The prosecutor reminded the jury that Dawson had "a preference for white women" and, further, that Dawson had had a "physical relationship" with a white woman.
We find great difficulty in discerning any legitimate purpose for discussing such matters in a proceeding designed to determine only the extent of punishment to be imposed on Dawson. One must ask the ugly question: Does a black man's supposed sexual preference have anything at all to do with whether he deserves to die for his deeds? Counsel for the state was asked during oral argument of this appeal why Dawson's claimed penchant for white women made him any "more culpable and more deserving of death?" Counsel's answer was: Counsel argued still that the racial allusions were justified as being ...
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