Geary v. State

• Decision Date: 20 December 1996
• Docket Number: No. 24277,24277
• Citation: 930 P.2d 719,112 Nev. 1434
• Parties: Melvin Joseph GEARY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 719

930 P.2d 719

112 Nev. 1434

Melvin Joseph GEARY, Appellant, v. The STATE of Nevada, Respondent.

No. 24277.

Supreme Court of Nevada.

Dec. 20, 1996.

Steven G. McGuire, State Public Defender and Timothy P. O'Toole, Appellate Deputy Public Defender, Carson City; Michael Pescetta, Nevada Appellate Post-Conviction Project, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, David Wayment, Deputy District Attorney and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

OPINION ON REHEARING

PER CURIAM:

Appellant Melvin Joseph Geary was first convicted of first-degree murder twenty years ago. Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975). Geary was on parole from the sentence imposed in that case when he committed another murder. For this second murder, Geary was convicted of one count of first-degree murder and was sentenced to death. On direct appeal, this court affirmed Geary's conviction and sentence. Geary v. State, 110 Nev. 261, 871 P.2d 927 (1994). Geary petitioned this court for rehearing, arguing that error occurred at both the guilt and penalty phases of his trial. In an order entered on September 29, 1994, we granted Geary's petition for rehearing, and directed the parties to submit supplemental briefs. Having considered the briefs on rehearing, we agree that error occurred at the penalty phase of Geary's trial. Accordingly, we vacate the sentence and remand this case for a new penalty hearing. ¹

FACTS

In July 1992, shortly after committing the crime, Geary confessed to murdering his Geary had previously confessed to murdering another person in a similar manner in 1973. For that earlier murder, a jury found Geary guilty of one count of first-degree murder and sentenced him to life in prison without the possibility of parole. This court affirmed his conviction. Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975) (Geary I ). In 1980, the Pardons Board commuted Geary's sentence to a sentence of life with the possibility of parole. After several appearances before the Parole Board, Geary was released on parole in 1986, in large part because he was an exemplary prisoner who received commendations for his service to the prison and the community. One of the conditions of Geary's parole was that he abstain from alcohol. Geary violated this condition of his parole several times, and on one occasion was found to have a blood alcohol level of 0.427.

roommate Edward Colvin with a boning knife. Geary had been drinking at the time. Following a trial, a jury found Geary guilty of one count of first-degree murder with use of a deadly weapon.

Geary was on parole from the previous murder when he killed Colvin. At the penalty hearing for Colvin's murder, the jury was fully informed of the facts and circumstances surrounding Geary's previous conviction, commutation and parole. After the penalty hearing, the jury found the following three aggravating circumstances: (1) that Geary committed the murder while under sentence of imprisonment (i.e., parole) for the 1973 murder; (2) that Geary was previously convicted of another murder (the 1973 murder) in Nevada; and (3) that the murder was committed at random and without apparent motive. The jury found that "any mitigating circumstances do not outweigh the aggravating circumstance(s)" and imposed the death penalty.

Geary appealed, arguing that: (1) the district court should have excluded his confessions because they were involuntary; (2) the district court gave an improper state-of-mind instruction; (3) the penalty-phase verdict was impermissibly tainted by juror misconduct; and (4) the district court allowed the jury to consider duplicative aggravating circumstances at the penalty phase. This court affirmed the conviction and sentence in a per curiam opinion. Geary v. State, 110 Nev. 261, 871 P.2d 927 (1994) (Geary II ). In that opinion, this court rejected each of these contentions, and conducted a sua sponte review of the penalty phase instructions and of the sentence, finding both to be proper.

Following our affirmance, Geary petitioned for rehearing. We granted rehearing and ordered additional briefing on the issues raised in Geary's petition, as well as on two jury instructions.

DISCUSSION

On rehearing, Geary contends that error occurred at both the guilt and penalty phases of his trial. Concerning guilt phase error, Geary contends that his rights to due process and to a reliable verdict were violated. Concerning penalty phase error, Geary contends that: (1) the jury instruction regarding the possibility of commutation of his sentence was misleading and violated his constitutional rights to due process and a reliable sentence; (2) the "random and without apparent motive" aggravating circumstance violated his rights to due process, to a reliable sentence, and to not incriminate himself; (3) the two aggravating circumstances based on his prior conviction and on his being under sentence of imprisonment for the same conviction violated the prohibition against double jeopardy and deprived him of due process and a reliable sentence; and (4) constitutional defects in other penalty phase instructions require reversal of his sentence.

Guilt Phase Instructions

Geary does not concede that this court's disposition of the issues raised on appeal was proper, nor does he concede that there are no other issues which require reversal. Geary argues that his rights to due process and to a reliable verdict were violated by: (1) the jury instruction which defined a reasonable doubt as one which would "control" a person's behavior; (2) the jury instruction on premeditation and deliberation which conflated first and second degree murder because it defined premeditation as an intent to kill which can be formed at or instantaneously before the killing; and (3) the finding that he used a deadly weapon based on the use of a boning knife.

Although these issues exceed the scope of this court's order granting rehearing, we have elected to consider them nonetheless. We disagree with Geary's contentions. The jury instruction on reasonable doubt is a stock instruction, identical to that given in Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991), where we upheld the instruction. Since Lord, we have consistently held that the instruction is constitutionally sound. See Wesley v. State, 112 Nev. 503, 916 P.2d 793 (1996); Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993), cert. denied, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994). We also previously upheld the jury instruction pertaining to premeditation in Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992). Further, with regard to Geary's use of a deadly weapon, a boning knife qualifies as a deadly weapon even under the "inherently dangerous" weapon test of Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990). See Hutchins v. State, 110 Nev. 103, 867 P.2d 1136 (1994) (distinguishing scissors from knives, which fall within the definition of a deadly weapon). Thus, we conclude that these contentions are without merit.

Penalty Phase Instructions

1. Commutation Instruction

Concerning the possibility that Geary's sentence could later be modified, the jury was instructed as follows:

Life imprisonment with the possibility of parole is a sentence to life imprisonment which provides that the Defendant would be eligible for parole after a period of twenty years. This does not mean that he would be paroled after twenty years, but only that he would be eligible after that period of time.

Life imprisonment without the possibility of parole means exactly what it says, that the Defendant shall not be eligible for parole.

If you sentence the Defendant to death you must assume that the sentence will be carried out.

Although under certain circumstances and conditions the State Board of Pardons Commissioners has the power to modify sentences, you are instructed that you may not speculate as to whether the sentence you impose may be changed at a later date.

(Emphasis added.) Geary argues that, under the circumstances of this case, the instruction was misleading and violated his constitutional rights.

Before addressing the merits of this issue, we address the state's argument that this issue is waived because Geary did not object at the sentencing hearing. Normally, failure to object at trial bars review on appeal. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991) (citing McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983)). However, on direct appeal from a death sentence, this court's greatest concern is whether the sentence is constitutional. Under compelling circumstances, we have at times allowed this concern to override procedural problems in capital cases. See, e.g., Lord, 107 Nev. at 38, 806 P.2d at 554 (constitutional error addressed despite failure to object to jury instruction in trial court); Jones v. State, 101 Nev. 573, 580, 707 P.2d 1128, 1133 (1985) (fundamental instructional error not raised below addressed sua sponte by this court on appeal). Thus, we address the merits of appellant's contention.

Appellant contends that, under the unique circumstances of this case, the jury instruction regarding the possibility of commuting a sentence from life without, to life with the possibility of parole was misleading, prejudicial, and violated his constitutional rights to due process and a reliable sentence. Specifically, Geary contends that the jury was misled into believing that if it sentenced him to life without the possibility of parole, his sentence could be modified, when in fact, his sentence could not be modified to allow for parole.

First, we note that this instruction complies with our dictate in Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). In Petrocelli, we expressed concern that juries were instructed differently regarding the possibility of commutation or parole, and stated that some of...