Harrison v. Gillespie

• Decision Date: 22 February 2010
• Docket Number: No. 08-16602.,08-16602.
• Citation: 596 F.3d 551
• Parties: James M. HARRISON, Petitioner-Appellant, v. RJJ Douglas GILLESPIE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

596 F.3d 551

James M. HARRISON, Petitioner-Appellant, v. RJJ Douglas GILLESPIE, Respondent-Appellee.

No. 08-16602.

United States Court of Appeals, Ninth Circuit.

Argued August 10, 2009.

Submitted August 14, 2009.

Filed February 22, 2010.

JoNell Thomas (argued), David M. Schieck, Scott L. Bindrup, Clark County Special Public Defender, Bret O. Whipple, Law Office of Bret Whipple, Las Vegas, NV, for the petitioner-appellant.

Steven S. Owens, Clark County District Attorney, Las Vegas, NV, for the respondent-appellee.

Appeal from the United States District Court for the District of Nevada,¹ Robert Clive Jones, District Judge, Presiding. D.C. No. 2:08-cv-00802-RCJ-RJJ.

Before: PROCTER HUG, JR., STEPHEN REINHARDT and BARRY G. SILVERMAN, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge SILVERMAN.

ORDER AND OPINION ORDER

At the time of Harrison's sentencing trial and all state court proceedings related to the denial of his motion to strike the death penalty, the Nevada Supreme Court had interpreted the relevant statutory provisions to require that "[t]o obtain a death sentence, the State must prove beyond a reasonable doubt that at least one aggravating circumstance exists and that the aggravating circumstance or circumstances outweigh any mitigating evidence." Gallego v. State, 117 Nev. 348, 23 P.3d 227, 239 (2001) (en banc) (emphasis added); see also Johnson v. State, 118 Nev. 787, 59 P.3d 450, 460 (2002) (per curiam) ("[The] finding regarding mitigating circumstances is necessary to authorize the death penalty in Nevada, and we conclude that it is in part a factual determination, not merely discretionary weighing. . . . [W]e conclude that Ring requires a jury to make this finding as well: `If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it — must be found by a jury beyond a reasonable doubt.'") (quoting Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (emphasis added)); Witter v. State, 112 Nev. 908, 921 P.2d 886, 896 (1996) (per curiam) ("[W]e read NRS 200.030(4) as stating that the death penalty is an available punishment only if the state can prove beyond a reasonable doubt at least one aggravating circumstance exists, and that the aggravating circumstance or circumstances outweigh the mitigating evidence offered by the defendant." (emphasis added)), abrogated on other grounds by Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000).

Accordingly, we were surprised to learn that the Nevada Supreme Court issued a decision on July 23, 2009 in which it stated that "[n]othing in the plain language of [the relevant statutory] provisions requires a jury to find, or the State to prove, beyond a reasonable doubt that no mitigating circumstances outweighed the aggravating circumstances in order to impose the death penalty" and that the court itself "has imposed no such requirement." McConnell v. State, 212 P.3d 307, 314-15 (Nev.2009) (per curiam) (emphasis added). Although we heard oral argument in this appeal approximately two weeks after McConnell was decided, the District Attorney of Clark County failed to advise us of the case, and in fact did not do so until January 19, 2010, approximately five months later, after we had issued our decision. In fact, it did not do so until it filed a petition for rehearing en banc.

Even after the Nevada Supreme Court's McConnell decision, it remains beyond dispute that a defendant cannot be sentenced to death under Nevada law if a jury finds that the mitigating circumstances outweigh the aggravating circumstances. Such a finding establishes an acquittal of the death penalty for purposes of the Double Jeopardy Clause, regardless of what burden of proof applies. Accordingly, this case does not require us to resolve the question whether the "beyond a reasonable doubt" standard applies to that finding, and we now issue a superseding opinion to make clear that our opinion does not do so. The superseding opinion is, of course, the operative and controlling opinion for all purposes.

The prior opinion in this case is hereby withdrawn, and is replaced with the superseding opinion filed concurrently with this order. The pending petition for rehearing en banc is dismissed as moot. The panel will entertain any petition for rehearing or rehearing en banc filed in accordance with the applicable rules.

OPINION

REINHARDT, Circuit Judge:

A jury may have acquitted James Harrison of the death penalty. We will never know, because the trial court denied his request to ask the jury two simple questions that could have conclusively established that fact, and instead dismissed the jurors. Now, the State of Nevada seeks once again to have him executed. Harrison asserts that a retrial on the death penalty would violate the Double Jeopardy Clause.

The State prosecuted Harrison for murder, and the jury returned a guilty verdict. The State then sought the death penalty, which required proof of two additional facts beyond guilt: that at least one aggravating circumstance existed, and that there were no mitigating circumstances sufficient to outweigh the aggravating circumstances. Nev.Rev.Stat. § 175.554(3). The jury was permitted to impose a sentence of death only if it made both findings unanimously. Hollaway v. State, 116 Nev. 732, 6 P.3d 987, 996 (2000) (en banc). If it made both findings, it also had the option to sentence the defendant to a non-capital sentence: life without parole, life with parole, or a fixed term with parole. Nev. Rev.Stat. § 200.030(4). If the jury determined that the there were no aggravating circumstances or that there were mitigating circumstances sufficient to outweigh any aggravating circumstances, it was free to choose only one form or another of the three non-capital sentences. Id.

The jury reported its inability to agree on a sentence, and two juror notes indicated that the jury was deadlocked between life with the possibility of parole and life without the possibility of parole. Harrison requested that the members of the jury be polled to determine (1) whether they had unanimously found that there were no aggravating circumstances and (2) whether they had unanimously found that the mitigating circumstances outweighed the aggravating circumstances. If the answer to either of the questions had been yes, the poll would have established that Harrison had been acquitted of the death penalty, and the Double Jeopardy Clause of the Fifth Amendment would have prohibited the State from seeking that penalty during Harrison's sentencing retrial. However, the prosecution objected to Harrison's request, and trial judge denied it. She then dismissed the jury and declared a mistrial.

We conclude that there was no manifest necessity to declare a mistrial without first polling the jury in order to determine whether Harrison had been acquitted of the death penalty. Accordingly, we hold that the trial court abused its discretion by denying Harrison's polling request. Because no other alternative would adequately protect Harrison's rights under the Double Jeopardy Clause, we further hold that the State may not seek the death penalty at a sentencing retrial, and no such penalty may be imposed by the court.²

I. Factual and Procedural Background

In 2002, Harrison and Anthony Prentice were charged by the State of Nevada with conspiracy to commit murder, burglary, and murder with the use of a deadly weapon in connection with the death of Daniel Miller, Prentice's roommate. The State sought the death penalty against both defendants. The trials were severed, and Prentice was convicted of conspiracy to commit murder and murder with use of a deadly weapon and sentenced to life without parole. Subsequently, a different jury found Harrison guilty of the same charges.

Nevada law provides that Harrison's crime may be punished by death, life without parole, life with parole eligibility, or a definite term with parole eligibility. Nev. Rev.Stat. § 200.030(4). For the jury to impose death, two conditions must be met: first, the jury must unanimously find at least one aggravating circumstance; and second, the jury must unanimously find that the mitigating circumstance(s) do not outweigh the aggravating circumstance(s). Id.; see also Hollaway v. State, 116 Nev. 732, 6 P.3d 987, 996 (2000) (en banc). If both conditions are met, the jury may choose to impose the death penalty, or may select a lesser sentence. If either condition is not met, the jury may not impose a death sentence. Nev.Rev.Stat. § 175.554(3).

During the penalty stage of Harrison's trial, the jury informed the court that, after deliberating at length, it could not reach a unanimous verdict. The court received "two notes from two different jurors indicating that the jury was deadlocked between life with [the possibility of parole] and life without [the possibility of parole]."³ The judge expressed her inclination to bring the jury back and determine whether further deliberation would be fruitful, and to dismiss the jury in the event that it would not. One of Harrison's attorneys intervened:

I'd request that we inquire from the jurors how far along in the process that they were in this penalty phase, and by that I mean . . . they needed to make a determination if the aggravators were proved beyond a reasonable doubt. I would ask that this Court inquire of that.

And then the second issue was if the weighing process between the aggravators and mitigators if they had in fact done a weighing process, and I'd ask that this Court poll the 12 individual jurors and ask them individually if any of them made the determination that the mitigation outweighed the aggravations in this matter.

The prosecution opposed polling the jury on the ground that several Nevada statutes allegedly precluded the court from doing so,⁴ and argued that "[t]he only way to make any determination as to which verdicts they reached or...