Gallego v. State

• Decision Date: 17 May 2001
• Docket Number: No. 35291.,35291.
• Citation: 117 Nev. 348,23 P.3d 227
• Parties: Gerald Armond GALLEGO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

23 P.3d 227

117 Nev. 348

Gerald Armond GALLEGO, Appellant, v. The STATE of Nevada, Respondent.

No. 35291.

Supreme Court of Nevada.

May 17, 2001.

Steven G. McGuire, State Public Defender, and James P. Logan, Chief Deputy Public Defender, Carson City, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District Attorney, John J. Kadlic, Deputy District Attorney, and Brent T. Kolvet, Special Deputy District Attorney, Pershing County, for Respondent.

Before the Court En Banc.

OPINION

SHEARING, J.

Appellant Gerald Armond Gallego murdered two teenage girls in Pershing County in 1980. He was convicted and sentenced to death. In 1997, a federal court ordered that Gallego be resentenced. He received a new penalty hearing and was again sentenced to death.

Gallego contends that a number of errors occurred at his second penalty hearing, including that the district court erred in not permitting him to represent himself and in not appointing substitute counsel. We conclude that none of Gallego's assignments of error warrant relief.

FACTS

Two teenage girls, Stacey Redican and Karen Twiggs, disappeared from a shopping mall in Sacramento, California, in April 1980. Their bodies were found in July 1980 in shallow graves in remote Limerick Canyon, Nevada. The State's primary witness, Charlene Williams (aka Charlene Gallego), testified that she enticed the two victims into a van where they were forcibly confined, sexually molested by Gallego, driven to Limerick Canyon, and then murdered by Gallego with a hammer. Evidence also showed that Gallego and Williams acted similarly in the earlier kidnapping and killing of two teenage girls in California, Kippi Vaught and Rhonda Scheffler. The jury found Gallego guilty of two counts each of first-degree murder and first-degree kidnapping. During the penalty phase, the State introduced evidence that Gallego had been convicted of murdering two more people in California, Mary-Beth Sowers and Craig Miller. He was sentenced to death for the murders in this case and received two consecutive sentences of life without the possibility of parole for the kidnappings. This court affirmed Gallego's conviction and sentence.¹

In 1997, the Ninth Circuit Court of Appeals concluded that a jury instruction on the possibility of executive clemency had been misleading and ordered that Gallego be resentenced.²

The district court appointed the Nevada State Public Defender to represent Gallego. Gallego moved in proper person to be permitted to represent himself in October 1998. Steven McGuire, Gallego's lead counsel, filed a response to the motion asking the district court to determine as a threshold question whether Gallego was competent. In January 1999, the district court approved the employment by the defense of a psychiatrist and a psychologist to examine Gallego. An evidentiary hearing on Gallego's competency was held May 10-12, 1999. The district court found him competent.

Following this finding, McGuire filed a brief in support of Gallego's motion for self-representation. Gallego submitted a request in proper person for discharge of McGuire and substitution of counsel. At a hearing in August 1999, the district court denied Gallego's motions to represent himself and for substitute counsel. The second penalty hearing was held in September 1999. The State presented evidence that Gallego kidnapped and murdered Redican and Twiggs, that he had been convicted of kidnapping and murdering two other people in California (Sowers and Miller), and that he kidnapped and killed two more people in California (Vaught and Scheffler) but had not been charged with the latter offenses.

The defense introduced written declarations by a number of people familiar with extreme physical and emotional abuse that Gallego suffered growing up and by Dr. Myla K. Young, the psychologist who examined him. Psychiatrist Dr. David V. Foster testified for the defense. Gallego's medical history showed that he had suffered serious head injuries, and Foster stated that neuropsychiatric and neuropsychological testing and a CAT (computerized axial tomography) scan indicated significant damage to Gallego's brain. Foster summed up Gallego's family history as follows: "Mr. Gallego was severely tortured, beaten, humiliated and at times starved and deprived of food, affection, warmth, and suffers severe post-traumatic stress disorder as a consequence."

The jury found all three alleged aggravating circumstances, which were that the murder was committed: by a person previously convicted of another murder; by a person previously convicted of a felony involving the use or threat of violence; and while the defendant was engaged in the commission of kidnapping in the first degree. It found that the mitigating circumstances did not outweigh the aggravating circumstances and returned a death sentence for each murder.

The defense filed a motion for a new trial, alleging that the jury neglected its duty to consider the mitigating evidence. After a hearing on the motion, the district court denied it. A sentencing hearing was then held, and the court entered judgment and sentenced Gallego to death.

DISCUSSION

I. The denial of appellant's motion to represent himself

Gallego contends that the district court violated his constitutional right to represent himself.

A criminal defendant has the right to self-representation under the Sixth Amendment of the United States Constitution and article 1, section 8 of the Nevada Constitution.³ However, an accused who chooses self-representation must satisfy the court that his waiver of the right to counsel is knowing and voluntary.⁴ Such a choice can be competent and intelligent even though the accused lacks the skill and experience of a lawyer, but the record should establish that the accused was made aware of the dangers and disadvantages of self-representation.⁵ Deprivation of the right to self-representation is reversible, never harmless, error.⁶ A court may deny a defendant's request for self-representation when the defendant is incompetent to waive the right to counsel, the request is untimely, the request is equivocal, the request is made solely for the purpose of delay, or the defendant abuses the right to self-representation by disrupting the judicial process.⁷

The district court expressed a number of grounds for denying Gallego's motion to represent himself. It found the request to be untimely and equivocal and that Gallego had waived the right to represent himself. It also cited Gallego's uncooperative, obstructive behavior as grounds to deny the motion.

Whether the request for self-representation was untimely or waived

In Lyons v. State, this court held that if a request for self-representation "comes early enough to allow the defendant to prepare for trial without need for a continuance, the request should be deemed timely."⁸ We conclude that the district court erred in deeming Gallego's request untimely. None of the cases cited by the court on this issue were apposite since all involved requests for self-representation coming on the first day of trial or later.⁹

Here, the district court treated Gallego's request to represent himself as if it came just before the penalty phase in the midst of an ordinary, uninterrupted capital trial. This treatment was not appropriate because the penalty phase followed the original trial by fifteen years and required a new jury to be empaneled. Gallego first made his request in October 1998, almost a year before that empaneling. There is no indication that Gallego was trying to delay the proceedings. Deeming the request untimely under these circumstances improperly placed form over substance and was erroneous. Under Lyons, Gallego's request was timely because it was made well before the penalty phase of the trial and did not necessitate a continuance.

The district court also found that Gallego waived the right to represent himself by accepting court-appointed counsel at his original trial. It cited our opinion in Tucker v. State, which holds: "Where a defendant requests a court-appointed attorney and thereafter voluntarily acquiesces in representation by that court-appointed attorney, he waives his constitutional right to conduct a pro se defense."¹⁰ In Tucker, a burglary defendant told the district court at a pretrial hearing he would not accept representation by the public defender, but then voluntarily accepted such representation and made no objection once it commenced.¹¹

Tucker is not on point here, and again the district court placed form over substance and treated Gallego's request as if it came in the midst of an ongoing trial. It concluded that his acceptance of appointed counsel for the trial in 1984 acted to waive his right to proceed without counsel at the second penalty hearing fifteen years later. However, during the proceedings related to the new penalty hearing Gallego never acquiesced to the appointment of his counsel, and the court erred in finding waiver under these circumstances.

Whether appellant's request for self-representation was equivocal

The district court found Gallego's request to be equivocal because Gallego also asked the court for substitution of counsel. The pertinent facts are the following.

In September 1998, the district court appointed the Nevada State Public Defender to represent Gallego. Gallego filed a motion for permission to represent himself on October 8, 1998. This motion unequivocally asked the court to allow Gallego to represent himself. When Gallego first appeared before the district court on October 16, 1998, he informed the court, "I am my attorney."

Gallego's counsel, McGuire, then asked for a determination of Gallego's competency, and for most of a year the proceedings in district court largely related to this issue. During a competency hearing in November 1998, Gallego told the court that his appointed attorneys were trying to kill him and he wanted another...