Haberstroh v. State
| Decision Date | 18 September 2015 |
| Docket Number | No. 63466,63466 |
| Parties | RICHARD HABERSTROH A/K/A RICKY HICKEY A/K/A PATRICK JAMES HICKEY A/K/A GERALD HABERSTROH A/K/A LEE DIVINCENT, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Nevada Supreme Court |
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
This is an appeal from a judgment of conviction in a death penalty case. Eighth Judicial District Court, Clark County; Elissa F. Cadish, Judge.
Early in the morning on July 21, 1986, appellant Richard Haberstroh abducted a young woman, Donna Kitowski, from a grocery store parking lot in Las Vegas. He took her into the desert outside the city, robbed her, sexually assaulted her, and strangled her with a ligature. The strangulation caused irreparable brain damage and ultimately Kitowski's death. A jury convicted Haberstroh of first-degree murder, first-degree kidnapping, sexual assault, and robbery, each with the use of a deadly weapon, and sentenced him to death. His judgment of conviction was affirmed on direct appeal. See State v. Haberstroh, 105 Nev. 739, 782 P.2d 1343 (1989). Haberstroh eventually obtained relief from the death sentence and a second penalty hearing as the result of post-conviction proceedings. State v. Haberstroh, 119 Nev. 173, 69 P.3d 676 (2003). At the second penalty hearing, the jury found two circumstances aggravated Kitowski's murder—(1) the murder was committed while Haberstroh was under a sentence of imprisonment and (2) he had been previouslyconvicted of a felony involving the use or threat of violence—and, concluding that the mitigating circumstances did not outweigh the aggravating circumstances, sentenced him to death. This appeal followed.
Issues relating to jurors
First, Haberstroh argues that the district court erred by granting the prosecution's challenges for cause against two jurors because their views on the death penalty did not disqualify them from serving on the jury. "The test for evaluating whether a juror should have been removed for cause is whether a prospective juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Weber v. State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005) (internal quotation marks omitted).
With respect to prospective juror Anwar, in her questionnaire she expressed her belief in the death penalty but also indicated her discomfort with it; she expressed that the appropriateness of the death penalty depended on the nature of the case and that life in prison was the better option. Her answers during voir dire reflect a stronger opposition to the death penalty, where she indicated that she would not consider the death penalty because she did not believe "in killing someone as an option for punishment," although she acknowledged that if the crime was significant enough—something akin to mass murder—she might consider the death penalty. When pressed by the district court as to whether she could consider the death penalty, she responded that she could not. As to prospective juror Gregan, he expressed in his questionnaire that he would consider the death penalty where the crime was severe but would not automatically vote for or against it. During voir dire, when asked whether he could consider all possible punishments, Gregan said that he wouldprefer not to sit on a death penalty jury and repeatedly expressed discomfort with the death penalty. When pressed by the prosecutor and the district court as to whether he could consider the death penalty, he responded that he could not. We conclude that the district court did not abuse its discretion by excusing these two prospective jurors for cause. See United States v. Gabrion, 719 F.3d 511, 528 (5th Cir. 2013) (); Walker v. State, 635 S.E.2d 740, 746-47 (Ga. 2006) (same); State v. Tinsley, 143 S.W.3d 722, 733 (Mo. Ct. App. 2004) (same).
Second, Haberstroh argues that the district court abused its discretion by dismissing juror Henshaw near the end of trial, over his objection, where there was no misconduct and juror Henshaw indicated that he could be fair and impartial after revealing to the district court that he had been contacted the previous day by an investigator working on behalf of Henshaw's nephew who was a defendant in an out-of-state capital prosecution. When asked if his ability to be fair and impartial in this case was affected by his nephew's circumstances, Henshaw initially responded that he did not believe that it would affect his ability to be fair and impartial but that it caused him to "search [his] soul a little bit more." Henshaw made several subsequent comments about how the information about his nephew affected him but maintained that he could remain fair and impartial. In excusing him, the district court concluded that no misconduct had occurred but acknowledged that Henshaw "did seem emotional in talking about these matters" and had "obviously" thought about his nephew's case and what could potentially happen to him. Noting Henshaw's representation that he could consider all the sentencingoptions, the district court nevertheless expressed concern that his performance as a juror would be affected or influenced by emotions and his connection to his nephew's case. Given the district court's broad discretion regarding for-cause challenges, see Leonard v. State, 117 Nev. 53, 67, 17 P.3d 397, 406 (2001) (), and its ability to observe Henshaw's demeanor during the inquiry, see id. (), we conclude that the district court ruling is supported by the record and there was no abuse of discretion in removing Henshaw.1 See NRS 16.080 (); NRS 175.071 ().
Third, Haberstroh argues that misconduct occurred when one or more jurors failed to acknowledge during jury selection that they did not believe that a life-without-parole sentence meant that a defendantwould not be eligible for parole. As evidence of this misconduct, he suggests that two notes sent out during deliberations that questioned the meaning of a life-without-parole sentence contradicted the jurors' representations in their questionnaires that they understood that they must assume that a life-without-parole sentence meant the defendant would not be released on parole. In response to the notes, the district court directed the jurors to consult relevant instructions explaining the sentencing options. Because Haberstroh concurred with the district court's response and made no assertion of misconduct below, we review his claim for plain error. See Saletta v. State, 127 Nev., Adv. Op. 34, 254 P.3d 111, 114 (2011); Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995). Merely requesting the district court to explain the meaning of a life-without-parole sentence is not convincing evidence of misconduct and absent some indication of an intentional misrepresentation during voir dire, Haberstroh's allegation is nothing more than supposition. See Maestas v. State, 128 Nev., Adv. Op. 12, 275 P.3d 74, 85 (2012) . Accordingly, he has not shown error that is unmistakable from a casual inspection of the record. Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995) (defining "plain" error).
Fourth, Haberstroh argues that the voir dire process was unfair because the district court rejected his request to alternate between the prosecution and the defense with respect to who first questioned each prospective juror on the ground that the prosecution questions the prospective jurors first "under the law." While nothing in the statute orthis court's jurisprudence requires that the prosecution be afforded the first opportunity to query prospective jurors, see NRS 175.031, Haberstroh articulates no specific prejudice from the district court's ruling and therefore, we conclude that a new penalty hearing is not warranted on this ground. See Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937-38 (1978) (). We also reject Haberstroh's contention that voir dire was unfair because the district court improperly limited his inquiry into the prospective jurors' willingness to impose a life sentence, as the record shows that he was able to query them about whether they could consider a sentence of life with the possibility of parole. See Johnson v. State, 122 Nev. 1344, 1354-55, 148 P.3d 767, 774 (2006) ().
Challenges to the fairness of the penalty hearing
Haberstroh contends that his penalty hearing was unfair because the jury was deprived of the opportunity to consider an appropriate sentence. In this, he makes several arguments that we have previously...
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