Hernandez v. State

• Decision Date: 30 October 2008
• Docket Number: No. 44812.,44812.
• Citation: 194 P.3d 1235
• Parties: Fernando Navarro HERNANDEZ, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

194 P.3d 1235

Fernando Navarro HERNANDEZ, Appellant, v. The STATE of Nevada, Respondent.

No. 44812.

Supreme Court of Nevada.

October 30, 2008.

Patti, Sgro & Lewis and Anthony P. Sgro, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.

Before The Court En Banc.

OPINION

By the Court, MAUPIN, J.:

In this appeal, we consider whether we should extend the holding in our decision in McConnell v. State¹ to bar the dual use of torture as a theory of first-degree murder and as an aggravating circumstance to support a death sentence. We conclude that McConnell does not preclude the State from securing a murder conviction based upon a theory of torture and alleging torture as an aggravating circumstance in seeking a death sentence. Nevada's definition of torture murder sufficiently narrows the class of persons eligible for the death penalty to allow the dual use of torture as exercised in this case. However, McConnell requires us to strike the burglary aggravating circumstance, leaving two remaining aggravating circumstances—the murder involved torture or mutilation and the defendant subjected the victim to nonconsensual sexual penetration. After reweighing the remaining aggravating and mitigating evidence, we conclude beyond a reasonable doubt that the jury would have found appellant Fernando Navarro Hernandez death eligible and imposed death absent the erroneous aggravating circumstance. We therefore affirm the district court's order denying post-conviction relief.

FACTS

Hernandez was convicted of first-degree murder, burglary while in possession of a weapon, second-degree kidnapping, and unlawful sexual penetration of a dead body. The murder victim was Hernandez's ex-wife, Donna. Hernandez murdered Donna at her home and kidnapped their three-year-old daughter Ana, who witnessed the killing.

At approximately 7:00 a.m. on October 6, 1999, Hernandez was stopped for speeding by Las Vegas Metropolitan Police Officer David Swoboda. Rather than remaining inside his vehicle, Hernandez exited, crying. Officer Swoboda noticed Hernandez had cuts on his face and hand and asked him what happened. Hernandez said he had fought with his ex-wife. Through his police computer, Officer Swoboda learned that Donna had taken out a protective order against Hernandez. Suspecting domestic violence, Officer Swoboda requested officers be sent to Donna's home.

Officers responding to Donna's house found her body on the stairs. An autopsy revealed that she had been strangled to death, manually and by an object such as a foot or a knife placed against her throat. She also sustained multiple stab and slash wounds and blunt force head trauma. Apparently postmortem, a dinner knife had been thrust into her vagina with sufficient force to perforate the vaginal wall and penetrate her abdominal cavity. A seven-inch serrated knife, its blade broken from the handle, was found near her body; Hernandez's palm print was found on it. Hernandez's and Donna's DNA were found in the blood at the crime scene, on the pajamas Ana was wearing when Hernandez was arrested, and on the ring taken from Hernandez's hand when he was booked into custody.

This court affirmed the judgment of conviction and sentence on direct appeal.² Hernandez timely filed a post-conviction petition for a writ of habeas corpus, which the district court denied after conducting an evidentiary hearing. This appeal followed.

DISCUSSION

Application of McConnell v. State

Hernandez argues that the burglary aggravating circumstance is invalid under McConnell and that McConnell should also be applied to invalidate the torture aggravating circumstance. We agree that the burglary aggravator is invalid under McConnell, but we decline to extend that case to invalidate the torture aggravating circumstance. After striking the burglary aggravating circumstance, we conclude beyond a reasonable doubt that the jury would have found Hernandez death eligible and sentenced him to death.

Burglary aggravating circumstance

Two years after upholding Hernandez's conviction and death sentence on direct appeal, this court decided McConnell, holding that it is unconstitutional "to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated."³ This court subsequently held that McConnell applied retroactively to cases that were final when it was decided.⁴ Here, the State sought a murder conviction based upon three theories: premeditation and deliberation, felony murder during a kidnapping and/or burglary, and murder by torture. The jury found three circumstances aggravating the murder: Hernandez subjected the victim to nonconsensual sexual penetration, the murder was committed during a burglary, and the murder involved torture or mutilation.⁵ The jury's verdict is silent as to which theory or theories the jury relied on in finding Hernandez guilty of first-degree murder. Accordingly, the burglary aggravating circumstance is invalid under McConnell.

Torture aggravating circumstance

Hernandez argues that, similar to McConnell's holding respecting felony murder, it is unconstitutional for the State to charge first-degree murder based on torture and also base an aggravating circumstance on the same act or acts of torture unless it is clear that the jury did not rely on torture murder in finding the defendant guilty. Therefore, according to Hernandez, because it is unclear whether the jurors relied on the torture-murder theory to find him guilty of first-degree murder, the torture aggravating circumstance must be stricken. We disagree.

In McConnell, we concluded that the United States and Nevada Constitutions require a capital sentencing scheme to "`genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.'"<sup>6</sup> Noting the United States Supreme Court decision in Lowenfield v. Phelps,<sup>7</sup> we recognized that this narrowing function may be achieved by one of two means—"`[t]he legislature may itself narrow the definition of capital offenses'" or "`the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.'"⁸ Thus, to assess whether Nevada's capital felony-murder scheme provided sufficient narrowing to pass constitutional scrutiny, we asked two questions in McConnell: "First, is Nevada's definition of capital felony murder narrow enough that no further narrowing of death eligibility is needed once the defendant is convicted? Second, if not, does the felony aggravator sufficiently narrow death eligibility to reasonably justify the imposition of a death sentence on the defendant?"⁹

Accordingly, here, we must first determine whether Nevada's definition of torture murder is sufficiently narrow such that no further narrowing of death eligibility is needed once the defendant is convicted. We conclude that it is and that no further narrowing is required. Consequently, we need not address the second question posed in McConnell.

Torture murder identifies a constitutionally narrow class of murders, which only includes those defendants who act with calculated intent to inflict pain for revenge, extortion, persuasion, or for any sadistic purpose and to inflict pain beyond the killing itself.¹⁰ We conclude that the definition of torture murder assuages the risk of unconstitutional arbitrariness that the narrowing function is designed to avoid.

Moreover, the concern engendering our ruling in McConnell is not present here. Nothing in McConnell prohibits per se using the same conduct to support a murder theory and an aggravating circumstance.¹¹ Our reasoning in McConnell centered on whether felony murder performed an adequate narrowing function. Specifically, we held that Nevada's felony-murder statute was too broad to provide sufficient narrowing because it did not require the defendant to have the intent to kill.¹² Rather, the intent simply to commit the underlying felony is "`transferred to supply the malice necessary to characterize the death a murder.'"¹³ Torture murder, on the other hand, includes an intent element because malice must still be proved.¹⁴

As the definition of torture murder performs a constitutionally satisfactory narrowing function and does not implicate the concerns we expressed in McConnell, we conclude that McConnell does not render the torture aggravating circumstance invalid.

Reweighing

After striking the burglary aggravating circumstance, we may reweigh the aggravating and mitigating evidence or conduct a harmless-error review.¹⁵ The question is whether it is "clear that absent the erroneous aggravator the jury would have imposed death."¹⁶

The jurors found seven mitigating circumstances: Hernandez lacked a significant criminal history; he committed the murder while under extreme mental or emotional disturbance; he accepted responsibility for the crime; he expressed remorse; he was intoxicated at the time of the crime; he had been gainfully employed throughout his adult life; and he spared the life of his three-year-old daughter, who was present during the crime, even though he had threatened to kill her. Two valid aggravating circumstances remain against Hernandez: the murder involved torture or mutilation of the victim, and he subjected the victim to nonconsensual sexual penetration immediately before, during, or after the murder.

In reweighing the aggravating and the mitigating evidence, we are convinced beyond a reasonable doubt that the jury would have found Hernandez death eligible. An autopsy revealed that Donna died from strangulation, evidenced by bruising on her neck caused by fingers and the placement of a foot or knife against her neck.¹⁷ The viciousness of...