Hover v. State

• Decision Date: 19 February 2016
• Docket Number: No. 63888,63888
• Parties: GREGORY LEE HOVER, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

GREGORY LEE HOVER, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 63888

SUPREME COURT OF THE STATE OF NEVADA

February 19, 2016

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction in a death penalty case. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.

Appellant Gregory Hover and Richard Freeman kidnapped, sexually assaulted, robbed, and murdered Prisma Contreras outside of Las Vegas, Nevada. Ten days later, Hover broke into the home of Julio and Roberta Romero in Las Vegas, Nevada. He bound and shot Julio, forced Roberta to retrieve certain property, shot her, and left the home with jewelry and bank cards. Julio died as a result of his injuries; Roberta survived. Hover and Freeman also robbed the slot areas of three Las Vegas grocery stores. Lastly, while in pretrial detention, Hover attacked his cellmate with scissors.

A jury found Hover guilty of conspiracy to commit kidnapping; five counts of conspiracy to commit robbery; conspiracy to commit sexual assault; conspiracy to commit murder; five counts of burglary while in possession of a deadly weapon; three counts of first-degree kidnapping with the use of a deadly weapon; four counts of robbery with the use of a deadly weapon; two counts of robbery with the use of a deadly weapon, victim 60 years of age or older; sexual assault with the use of a deadly weapon; two counts of murder with the use of a deadly weapon; first-degree arson; two counts of burglary; attempted murder with the use of a deadly weapon; and battery by a prisoner with the use of a deadly weapon. The jury sentenced Hover to death for each murder conviction and the district court imposed numerous consecutive and concurrent sentences for the remaining convictions. In this appeal, Hover alleges numerous errors during the guilt and penalty phases of trial.

Guilt phase issues

Juror challenges

Hover raises several challenges to district court decisions during voir dire.

First, Hover contends that the district court erred in denying his challenges of prospective jurors whom he contends were predisposed toward a death sentence. We discern no abuse of discretion. See Weber v. State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005) (reviewing a district court's decision whether to excuse potential jurors for abuse of discretion). Despite the jurors' preference for harsher punishments, they acknowledged that Hover was innocent until proven guilty and that they would listen to all the evidence presented, follow the court's instructions, and fairly consider all possible penalties. See id. (providing that reviewing court must inquire "'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 oath.'" (quoting Leonard v. State (Leonard II), 117 Nev. 53, 65, 17 P.3d 397, 405 (2001) (internal quotes omitted))). Moreover, the challenged prospective jurors were not ultimately empaneled and Hover does not allege that any juror actually empaneled was unfair or biased. See Blake v. State, 121 Nev. 779, 796, 121 P.3d 567,578 (2005) ("If the jury actually seated is impartial, the fact that a defendant had to use a peremptory challenge to achieve that result does not mean that the defendant was denied his right to an impartial jury.").

Second, Hover contends that the district court erred in granting the State's challenge to a potential juror. We discern no abuse of discretion. See Weber, 121 Nev. at 580, 119 P.3d at 125. The record established that the juror's views would "'prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and oath.'" Id. (quoting Leonard II, 117 Nev. at 65, 17 P.3d at 405). In particular, despite the beyond a reasonable doubt standard, the potential juror stated that she would require proof of a defendant's guilt beyond any doubt in order to impose the death penalty. See Browning v. State, 124 Nev. 517, 526, 188 P.3d 60, 67 (2008) ("The focus of a capital penalty hearing is not the defendant's guilt, but rather his character, record, and the circumstances of the offense.").

Third, Hover argues that the district court erred in denying his objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) to the State's use of a peremptory challenge. We conclude that Hover failed to demonstrate a prima facie case of discrimination as required under Batson. See Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006) (providing that "the opponent of the peremptory challenge must make out a prima facie case of discrimination"). Under the totality of the circumstances, the strike of one African-American juror while another African-American juror remained on the panel, did not establish an inference of discrimination in this case. See Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d 157, 166 (2014) (providing that to establish a prima facie case, "the opponent of the strike must show 'that the totality of therelevant facts gives rise to an inference of discriminatory purpose" (quoting Batson, 476 U.S. at 93-94)). Thus, the burden did not shift to the State to proffer a race-neutral reason for the strike. Ford, 122 Nev. at 403, 132 P.3d at 577 (providing that once a prima facie case of discrimination is established "the production burden then shifts to the proponent of the challenge to assert a neutral explanation for the challenge"). Nevertheless, the State proffered several race-neutral reasons for striking the juror that were not belied by the record. Therefore, the district court did not abuse its discretion in denying Hover's challenge.

Positron emission tomography (PET) scan

Hover argues that the district court abused its discretion in denying his motion to obtain a PET scan because funding was available and the district attorney did not object to the testing. See State v. Second Jud. District Court, 85 Nev. 241, 245, 453 P.2d 421, 423-24 (1969) (reviewing denial of motion seeking payment of defense expenses for an abuse of discretion). We disagree for two reasons. First, Hover did not request a PET scan below but instead requested a Magnetic Resonance Imaging (MRI) scan.¹ The district court cannot be faulted for failing to order a scan that was not requested. Second, Hover did not meet his burden of demonstrating that either scan was necessary. See Gallego v. State, 117 Nev. 348, 370, 23 P.3d 227, 242 (2001), abrogated on other grounds by Nunnery v. State, 127 Nev., Adv. Op. 69, 263 P.3d 235 (2011). Counsel conceded in the district court that the defense expert witness didnot request the scan or conclude that it was necessary to diagnose Hover but sought testing merely because Hover was "facing a death sentence."² See Jaeger v. State, 113 Nev. 1275, 1285, 948 P.2d 1185, 1191 (1997) (Shearing, C.J., concurring) ("[T]he guarantees of due process do not include a right to conduct a fishing expedition."). The district court cannot be faulted for denying a request that was not made nor supported by some basis for the request.

Cross-examination of DNA analyst

Hover also contends that the district court abused its discretion in preventing him from cross-examining the DNA analyst about errors in other cases.³ The record indicates that the analyst had worked at the lab at the time when significant errors were revealed. Therefore, Hover claims that the district court abused its discretion in concluding that the events of which Hover complained were irrelevant without conducting an evidentiary hearing. See Patterson v. State, 129 Nev., Adv. Op. 17, 298 P.3d 433, 439 (2013) ("[A]n abuse of discretion occurs whenever a court fails to give due consideration to the issues at hand."); see Collman v. State, 116 Nev. 687, 702, 7 P.3d 426, 436 (2000) ("The decision to admit or exclude evidence rests within the trial court's discretion, and this court will not overturn that decision absent manifesterror."). We agree that the district court should have allowed the consideration of this matter but conclude that the error was harmless. See Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d 465, 476 (2008) ("If the error is of constitutional dimension, then . . . [this court] will reverse unless the State demonstrates, beyond a reasonable doubt, that the error did not contribute to the verdict."). There is no indication that the witness was involved in any of the prior cases where errors were shown to have occurred. Therefore, her conclusions would not have been significantly undermined by the prohibited cross-examination. Moreover, while her conclusions were arguably powerful, there was substantial evidence of Hover's guilt notwithstanding that evidence. Hover repeatedly implicated himself in the sexual assault and murder of Contreras in statements that were consistent with physical evidence. In addition, cell phone records placed Hover in the area where Contreras' body was found, surveillance video showed a car like Hover's following Contreras' Jeep, Freeman's fingerprint was found on a matchbook at the scene, and surveillance video showed Hover and Freeman purchasing bleach and disposing of clothing shortly after the murder.

Cross-examination of Marcos Ramirez

Hover contends that the district court improperly limited his cross-examination of Marcos Ramirez, who he was accused of attacking in pretrial detention, to preclude questioning about prior arrests and convictions for violent crimes. We discern no abuse of discretion. See Collman, 116 Nev. at 702, 7 P.3d at 436. The district court permitted Hover to ask whether Ramirez told Hover about his prior record during their detention and Ramirez acknowledged that he told Hover about histhree convictions for domestic violence.⁴ That prior conduct therefore was relevant to establishing Hover's defense. See Daniel v. State, 119 Nev. 498, 515, 78 P.3d 890, 902 (2003) ("[E]vidence of specific acts showing that the victim was a violent person is admissible if a defendant seeks to...