Howard v. State

• Decision Date: 07 November 1990
• Docket Number: No. 20368,20368
• Citation: 106 Nev. 713,800 P.2d 175
• Parties: Samuel HOWARD, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 175

800 P.2d 175

106 Nev. 713

Samuel HOWARD, Appellant, v. The STATE of Nevada, Respondent.

No. 20368.

Supreme Court of Nevada.

Nov. 7, 1990.

Rehearing Denied Feb. 7, 1991.

Schieck & Derke, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty. and Daniel M. Seaton, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

By the Court, ROSE, Justice:

Appellant Samuel Howard (Howard) was convicted of two counts of robbery with the use of a deadly weapon and one count of murder. The jury sentenced Howard to death. Howard filed a post-conviction petition in district court claiming ineffective assistance of counsel. The district court dismissed Howard's petition. We affirm the district court's dismissal.

Facts

On March 26, 1980, a security guard detained Howard for attempting to defraud Sears Roebuck. Howard pulled out a .357 magnum, took the guard's badge and portable radio, and escaped.

Howard then telephoned a Mrs. Monahan and told her he wanted to buy a van which she and her husband (Dr. Monahan) had advertised for sale. Later that day Howard met the couple at a casino parking lot. Howard claimed to be a security guard who was interested in buying the Monahans' van. He agreed to meet with Dr. Monahan at his office the next morning.

Dr. Monahan was found robbed and murdered in his van on March 27, 1980. The Clark County Grand Jury indicted Howard for the murder of Dr. Monahan in May of 1981. Howard pled not guilty, but did not plead not guilty by reason of insanity.

In April of 1983, a two-week jury trial was held to determine Howard's guilt or innocence. At its conclusion, the jury found Howard guilty of two counts of robbery with the use of a deadly weapon and one count of murder with the use of a deadly weapon.

Howard testified at the penalty hearing regarding his commitments to mental hospitals, his Vietnam War record, and the fact that he had completed two years of junior college. He also claimed that he had a good prison record. Howard, however, denied during cross-examination that he was mentally ill. He also stated "I know what I am doing at all times" in response to a question by the prosecutor. Howard was the only witness called by the defense during the penalty phase of the trial. Howard's attorneys attempted to present mitigating evidence to the jury during the penalty phase of the trial. This evidence included: (1) Howard's history of commitments to mental institutions; (2) Howard's Vietnam War record which included an honorable discharge and a Purple Heart; and (3) Howard's prison records. Howard's attorneys testified that they could not get these records because Howard refused to sign releases for them. Howard contends that he readily agreed to sign any release but his attorneys refused to get any records for him.

During his closing argument the prosecutor, Dan Seaton, told the jury that he believed that Howard should be put to death and that if Howard was not put to death he could escape from jail. He also asked the jury to side with the future victims of Howard rather than with Howard. The prosecutor further stated that he believed that, if released, Howard could kill again, mentioned Charles Manson, and asked the jury to help society by sentencing Howard to death. Howard's attorneys failed to object to the prosecutor's remarks.

At the conclusion of the penalty phase and deliberations, the jury sentenced Howard to death on May 2, 1983.

Attorney Lizzie Hatcher (Hatcher) was appointed by the court to proceed with Howard's appeal to this court. Hatcher argued that Howard's trial counsel was ineffective because the public defender, who was a friend of the victim, was his supervisor. Hatcher, however, did not raise any other specific instances of ineffective assistance of counsel. Hatcher also did not raise on appeal the issue of prosecutorial misconduct. She testified that "we've always been taught that if there has been no objection at the time of trial, that issue is waived."

This court affirmed Howard's conviction and his death sentence on December 18, 1986. See Howard v. State, 102 Nev. 572, 729 P.2d 1341 (1986).

Howard filed a petition for post-conviction relief in October of 1987. An evidentiary hearing was held on August 25, 1988. Howard argued that his trial attorneys were ineffective because they failed to present evidence that he was legally insane at the time he killed Dr. Monahan. He further asserted that his attorneys should have called jail personnel, fellow inmates, and psychiatrists to testify that if he was given life imprisonment he would not be a threat to fellow inmates. He insisted that his attorneys were ineffective because they failed to object to the prosecutor's improper remarks made during the penalty hearing. Finally, Howard contended that his appellate counsel had failed to argue on appeal that the prosecutor's remarks were improper.

The district court found that Howard's attorneys acted effectively and that Howard's penalty hearing was more than fair. Therefore, the court denied Howard's petition for post-conviction relief. Howard now appeals that decision.

Legal Discussion

I. Prosecutorial Misconduct.

Howard contends that he was denied effective assistance of counsel because his trial attorneys failed to object to improper comments made by the prosecutor in closing argument during the penalty phase of the trial. Howard further asserts that his appellate attorney was ineffective because she failed to argue on appeal that the prosecutor made improper comments.

The first issue presented is whether certain of the prosecutor's comments made during closing argument constituted prosecutorial misconduct. We conclude that, pursuant to Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985), the prosecutor made three improper arguments to the jury. First, Mr. Seaton stated to the jury that he believed Howard should be put to death:

Mr. Harmon and I--well, before that even other prosecutors in our office had to okay this case for prosecution. Mr. Harmon and I then come in and we have to do what we have done over the past several weeks. We have to tell you that we believe in what we're telling you, that Sam Howard should be put to death, and we do believe that. We have a responsibility.

In Collier, this court stated:

Such an injection of personal beliefs into the argument detracts from the "unprejudiced, impartial, and nonpartisan" role that a prosecuting attorney assumes in the courtroom. By stepping out of the prosecutor's role, which is to seek justice, and by invoking the authority of his or her own supposedly greater experience and knowledge, a prosecutor invites undue jury reliance on the conclusions personally endorsed by the prosecuting attorney.

Id. at 480, 705 P.2d at 1130 (citations omitted). In the instant case the prosecutor used his position of authority to tell the jury that he personally believed that Howard should be put to death. Thus, his statement was improper and constituted prosecutorial misconduct.

Second, Mr. Seaton told the jury that "in this case as I see it you're either for the defendant or you're for these unnamed, uncertain victims that I am referring to." The prosecutor then closed his final argument by saying: "And then I ask you, on behalf of those same citizens of the State of Nevada, to come back into this courtroom and tell us beyond a reasonable doubt that you won't stand for the possibility of any future victim at the hands of Sam Howard. Thank you." We have held that arguments asking the jury to place themselves in the shoes of a party or the victim (the Golden Rule argument) are improper. See McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984). Equally improper are pleas to return a death penalty verdict on behalf of the victims. See Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985). If it is improper to argue that a jury should align itself with the victim, it is equally improper to ask the jury to vote in favor of future victims and against the defendant. See McGuire, supra.

Third, Mr. Seaton warned the jury that Howard might escape from prison. In Collier this court held that the "prospect of escape is not part of the calculus that the jury should consider in determining a defendant's sentence." Collier, 101 Nev. at 479, 705 P.2d 1126. Since then we have decided Haberstroh v. State, 105 Nev. 739, 782 P.2d 1343 (1989), where we determined that a prosecutor may argue in closing argument that the defendant might kill again if such argument is supported by evidence in the record. This was done on the rationale that a prosecutor should be permitted to argue those facts in evidence and the reasonable inferences that can be drawn from them. Following this rationale, we see no reason why a prosecutor should not be permitted to argue that a defendant may attempt to escape if it is supported by the evidence. To this extent, we modify Collier. However, there was no evidence presented of any prior escape attempts, and we therefore conclude that the prosecutor's remarks concerning the possibility that Howard might escape were improper.

We further conclude that pursuant to Strickland v. Washington, 466 U.S. 668, 674, 104 S.Ct. 2052, 2057-58, 80 L.Ed.2d 674 (1984), Howard's trial and appellate attorneys were remiss in failing to object to or raise on appeal the prosecutor's three questionable remarks to the jury. Defense attorneys should object to all apparent instances of prosecutorial misconduct.

Howard, however, must also prove pursuant to Strickland "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Strickland also held that overwhelming evidence of guilt is a consideration of whether a client had ineffective counsel. Strickland, 466 U.S. at 696, 104 S.Ct. at 2069; see also, Ybarra v. State, 103 Nev. 8, 731 P.2d 353 (1987...