Jimenez v. State

• Citation: 801 P.2d 1366,106 Nev. 769
• Decision Date: 28 November 1990
• Docket Number: No. 20723,20723
• Parties: Victor Maximillian JIMENEZ, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1366

801 P.2d 1366

106 Nev. 769

Victor Maximillian JIMENEZ, Appellant, v. The STATE of Nevada, Respondent.

No. 20723.

Supreme Court of Nevada.

Nov. 28, 1990.

Moran & Weinstock, Las Vegas, for appellant.

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

OPINION

PER CURIAM:

We first reviewed this matter on direct appeal from a judgment upon a jury verdict convicting appellant Victor Maximillian Jimenez of burglary, robbery with use of a deadly weapon, and two counts of first degree murder. Jimenez was sentenced to death, and this court affirmed all of his convictions but vacated the death sentence and remanded to the district court for a second penalty hearing before a newly empaneled jury. See Jimenez v. State, 105 Nev. 337, 775 P.2d 694 (1989). After the new penalty hearing, Jimenez was again sentenced to death. In appealing from his second death sentence, Jimenez contends that the sentence may not stand because of prejudicial error resulting primarily from prosecutorial misconduct and an erroneous construction of an aggravating circumstance. We are convinced that Jimenez was fairly sentenced, and therefore affirm.

Facts

The facts surrounding the crimes committed by Jimenez are set forth in Jimenez v. State and need not be recounted here. Suffice it to say that although we perceived no prejudicial error in the guilt phase of the first trial, and therefore affirmed each of the convictions, it was clear that the jury found certain aggravating circumstances in the initial penalty hearing that could not be sustained on the facts. We therefore found it necessary to vacate the first death sentence and to remand the case for a new penalty hearing. In the earlier opinion, we concluded that the only "arguably sustainable aggravating circumstances presented to the jury were that Jimenez acted with 'depravity of mind' (NRS 200.033(8)) and that he committed the murders during a robbery (NRS 200.033(4))." Id. at 343, 775 P.2d at 698. The second penalty phase hearing lasted three days, and after the jury again found Jimenez deserving of death on both counts, Jimenez appealed.

Discussion

A jury verdict will not be disturbed on appeal if supported by substantial evidence. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981). Our review of the record reveals both substantial evidence to support the jury's verdict and fundamental fairness in the proceedings.

A. Prosecutorial Misconduct

Jimenez alleges that the prosecutor injected his personal opinion into the penalty hearing, and improperly referred to evidence not before the jury. He contends that as a result of this misconduct, the jury was influenced by prejudice, passion and other arbitrary factors. We disagree.

On a number of occasions, this court has declared the impropriety of prosecutors buttressing argument by force of their personal opinions. As we stated in Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985):

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.... [B]y 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.... Prosecutors therefore must not express their personal beliefs, as was done here.

Id. at 480, 705 P.2d at 1130 (citations omitted). We nevertheless recognize that prosecutors must be free to express their perceptions of the record evidence and inferences properly drawn therefrom. We have simply directed them to do so without using such expressions as "I personally believe," or "In my opinion," so as to in effect place their own certification on their arguments. Thus, a prosecutor may properly argue in a manner such as, "Based upon the testimony just recounted to you, I suggest that Mr. Witness is unworthy of belief," or "For the reasons just mentioned, I submit that the penalty of death is suitable punishment for Mr. Defendant." The foregoing examples of proper and improper argument merely attest to the obvious--that much of the problem rests with semantics since the prosecutor is in truth expressing his personal opinion or conclusion in each of the four examples. We nevertheless expect our prosecutors to be sensitive to the need to avoid expressions that clearly reflect or state a condition of personal belief or opinion.

In the instant case, Jimenez complains that the prosecutor injected his own opinion concerning gradations of first degree murder and the differing degrees of punishment that each may justify. The prosecutor's argument was not improper. We have previously recognized the right of a prosecutor in a penalty phase hearing to discuss "general theories of penology, such as the merits of punishment, deterrence and the death penalty." Ybarra v. State, 103 Nev. 8, 15, 731 P.2d 353, 358 (1987). Here, the prosecutor presented hypotheticals apparently or approximately based upon actual cases to the jury as examples of criminal conduct not warranting the death penalty. The prosecutor was thus contrasting the circumstances of the hypothetical cases with those of the instant case in order to illustrate the qualitative differences between the crimes and to suggest a basis for imposing the harsher penalty against Jimenez. The prosecutor's argument represented proper persuasion rather than improper inflammation. The argument was not designed to inflame the jury by comparing Jimenez to other specifically named criminals, as was the case in Collier. The prosecutor's general discussion of the death penalty did not constitute misconduct.

Jimenez also contends that the prosecutor improperly referred to evidence outside the record. Usually, counsel's references in argument to evidence not properly before the jury is improper. Ybarra, 103 Nev. at 15, 731 P.2d at 358. Here, however, defense counsel noted that two $100 bills were found in the pocket of one of the victims. The clear purpose of the statement was to cast doubt on whether the murders occurred during the commission of a robbery. That issue, however, had been decided in the guilt phase by the original jury and affirmed on appeal by this court. Jimenez, 105 Nev. at 342, 775 P.2d at 697. Therefore, defense counsel was not entitled to argue that Jimenez did not murder the victims in connection with the robbery. Rather, defense counsel should have concentrated on mitigating factors that would arguably outweigh aggravating factors and justify the imposition of a penalty less than death. In any event, because defense counsel elected to argue matters pertaining to innocence or guilt before a new jury in a penalty hearing, the prosecutor understandably and properly...