Jones v. State

• Decision Date: 17 October 1985
• Docket Number: No. 12844,12844
• Citation: 101 Nev. 573,707 P.2d 1128
• Parties: Robert Charles JONES, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1128

707 P.2d 1128

101 Nev. 573

Robert Charles JONES, Appellant, v. The STATE of Nevada, Respondent.

No. 12844.

Supreme Court of Nevada.

Oct. 17, 1985.

Jeffrey D. Sobel, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., James Tufteland, Douglas McCarthy and Scott S. Mitchell, Deputys, Las Vegas, for respondent.

OPINION

PER CURIAM:

A jury found Robert Jones guilty of first degree murder and sentenced him to death. Jones challenges both the conviction and the imposition of the death sentence in this appeal. For the reasons set forth below, we affirm the conviction but set aside the death sentence and remand for a new penalty hearing.

THE FACTS

In the early morning hours of September 29, 1978 an argument erupted in the Chy Inn Bar between Jones and Rayfield Brown. Another bar patron, Bobby Lee Robinson, testified that he tried to put an end to the argument by buying everybody a drink. Jones picked up the bottle of vodka Robinson had purchased for him, drank the contents, and then handed the bottle to Robinson. Robinson put the bottle back on the bar counter and moved away to play some records. Approximately three minutes later Jones walked out of the bar, returned with a handgun, pointed it to Brown's head and fired the gun. Brown died shortly thereafter of the gunshot wound to the head.

Jones left the bar before police arrived. He returned to his uncle's house, where he resided, and told a cousin that he had shot a man at a bar. Jones attempted to flee to Massachusetts by bus but was arrested enroute in Vail, Colorado.

The degree of Jones' intoxication was disputed during the trial. Defense counsel argued that Jones could not be guilty of first degree murder because he was severely intoxicated at the time of the shooting. Jones' uncle testified that Jones was intoxicated at 12:30 a.m., several hours before the confrontation at the bar. Another defense witness testified that Jones was stumbling over shrubbery and appeared to be drunk at about 6:00 a.m., approximately one to two hours after the shooting. Eyewitnesses to the murder testified that Jones' gait and speech were normal, and that he did not appear drunk. The evidence also indicated that Jones managed to bury the gun and walk home via an inconspicuous route, indicating that Jones was capable of premeditating the murder.

After the jury found Jones guilty of first degree murder, the prosecutor presented evidence of Jones' previous convictions at the penalty hearing as aggravating circumstances warranting the imposition of the death penalty.

Jones offered evidence in mitigation from his mother and Clark County jail officials. Jones' mother testified that he had had trouble in school, was illiterate, had a low I.Q., and that he offered to donate his kidney when hers failed. According to jail personnel, Jones had been a model prisoner during his incarceration before trial. After a brief deliberation the jury sentenced Jones to death.

THE GUILT PHASE

The Cautionary Instruction

Jones first contends that the district court prejudicially erred in not giving a cautionary instruction that no inference could be drawn from his failure to testify. State trial courts have a constitutional obligation to give a cautionary instruction, upon proper request, "to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify." Carter v. Kentucky, 450 U.S. 288, 305, 101 S.Ct. 1112, 1121, 67 L.Ed.2d 241 (1981). Jones did not request a cautionary instruction, nor did he request a related instruction authorized by NRS 175.181(1).

Jones argues that a Carter violation occurred at his trial despite his failure to request the cautionary instruction. He contends that he was prevented from requesting a cautionary instruction by NRS 175.181(1) which the trial judge read to him while advising him of his right not to testify. NRS 175.181(1) provides:

No instruction shall be given relative to the failure of the person charged with the commission of crime or offense to testify, except, upon the request of the person so charged, the court shall instruct the jury that, in accordance with a right guaranteed by the constitution, no person can be compelled, in a criminal action, to be a witness against himself.

We have previously recognized the futility of objecting to an instruction whose validity has been consistently upheld. See St. Pierre v. State, 96 Nev. 887, 620 P.2d 1240 (1980). In St. Pierre we cited with approval federal authority which excused the failure to request jury instructions "which, at the time of ... trial, would have been inconsistent with the law as it then existed." See United States v. Wanger, 426 F.2d 1360 (9th Cir.1970); St. Pierre, 96 Nev. at 892, 620 P.2d 1240. We therefore proceed to analyze this issue under St. Pierre's two prong analysis focusing on (1) whether Jones had good cause for failing to request the cautionary instruction and (2) whether Jones has suffered prejudice to his substantial rights.

Jones has demonstrated good cause for his failure to request the instruction. Until Carter compelled state courts to give a cautionary instruction, if requested, we consistently held that an instruction elaborating on the language of NRS 175.181 was properly rejected. See Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976); McNeeley v. State, 81 Nev. 663, 409 P.2d 135 (1965). Jones' failure to request the instruction was therefore "caused" by firmly established caselaw which suggested the futility of such a request. As we stated in St. Pierre, "[t]here is no requirement that a defendant or his trial counsel be clairvoyant." 96 Nev. at 892, 620 P.2d 1240.

Although Jones had good cause for failing to request a Carter instruction, we conclude that the absence of the instruction has not prejudiced his substantial rights. A Carter error is evaluated under the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Franklin v. State, 98 Nev. 266, 270, 646 P.2d 543 (1982). In Chapman the High Court determined that a violation of a defendant's Fifth Amendment privilege would not mandate automatic reversal: "[T]here may be some constitutional errors which ... are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." 386 U.S. at 22, 87 S.Ct. at 827.

After reviewing the evidence of Jones' guilt under this standard, we conclude that any prejudice to Jones resulting from the failure to give the cautionary instruction was harmless beyond a reasonable doubt. Evidence of Jones' guilt is overwhelming. Several eyewitnesses identified Jones as the killer. His counsel admitted in closing argument that Jones was the man who killed Brown. The only real dispute centered on the degree of Jones' intoxication. The jury was adequately instructed on this issue, and there was substantial evidence to support a finding that Jones was capable of premeditation. Given the overwhelming evidence of Jones' guilt, we conclude that the absence of a Carter instruction did not have any measurable impact on the jury's deliberations.

Prosecutorial Misconduct

At the conclusion of the guilt phase of the trial the prosecutor, Bradley Richardson, pleaded with the jury to be fair to the victim in this case. ¹ Defense counsel objected to the remark, and the trial judge ordered it stricken from the record. Respondent now concedes that the remark was improper. See Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967) (prosecutor's emotional appeal to consider victim's family improper). Our task, therefore, is to determine whether the prosecutor's misconduct was prejudicial to Jones, denying him a fair trial. See Moser v. State, 91 Nev. 809, 814, 544 P.2d 424 (1975); Pacheco v. State, 82 Nev. 172, 179, 414 P.2d 100 (1966).

Prosecutorial misconduct can and will result in the reversal of convictions when it denies defendants their right to a fair trial. See McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984). In McGuire we reversed the convictions of two defendants because of the extreme and outrageous nature of the misconduct involved. Because we conclude that the misconduct in this case was much less egregious than the misconduct in the McGuire cases, we affirm Jones' conviction. Richardson's appeal to the jury to be fair to the victim in this case was immediately objected to and ordered stricken from the record:

When you took your oath, you were voirdired or questioned and asked whether you could be fair and impartial to both sides. And I recall you all qualifying with a yes, that you would be fair to both sides.

That includes the State of Nevada.

That would also include the victim in this case; who, of course, is not

MR. AMUNDSON: Objection, Your Honor.

THE COURT: The objection is sustained.

Stricken.

(Emphasis added.) Given the overwhelming evidence of Jones' guilt we conclude that this comment was not prejudicial. Nothing in McGuire requires us to abandon the harmless error rule, and we decline to do so now. Cf. Moser v. State, 91 Nev. 809, 815, 544 P.2d 424 (1975) (GUNDERSON, C.J., concurring).

THE PENALTY PHASE

Evidence of Prior Convictions

Jones contends that the district court erred in admitting evidence concerning his three prior felony convictions. He argues that testimony from the victims of his three prior felonious assaults was unduly prejudicial in light of defense counsel's offer to stipulate to the convictions. We reject this contention.

It is well established in Nevada that evidence of prior convictions is admissible at penalty hearings when relevant and credible and not dubious or tenous. See Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985); Allen v. State, 99 Nev. 485, 488, 665 P.2d 238 (1983). See also NRS 175.552. Although details of prior crimes undoubtably have a greater impact on a jury than a bare record...