Jones v. State

• Decision Date: 30 September 1991
• Docket Number: No. 21796,21796
• Parties: Daniel Steven JONES, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1179

817 P.2d 1179

107 Nev. 632

Daniel Steven JONES, Appellant, v. The STATE of Nevada, Respondent.

No. 21796.

Supreme Court of Nevada.

Sept. 30, 1991.

Moran & Weinstock, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty., and David Roger, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

On October 13, 1989, appellant Daniel Steven Jones (Jones) was charged with murder with use of a deadly weapon and robbery with use of a deadly weapon. On September 24, 1990, the date set for trial, Jones waived jury trial and pled guilty to First Degree Murder with Use of a Deadly Weapon. Judge Gamble and Judge Breen were appointed to preside on the three- judge sentencing panel with Judge Thompson. Witnesses' testimony indicated that Jones shot and killed Donald Woody to obtain possession of Woody's motor home. Jones had previously been convicted of aggravated assault for attempting to kill his grandmother by hitting her over the head with a crowbar; and he was in violation of parole when he killed Woody. The State also presented evidence that Jones murdered two people in their home in Florida, although he was not charged with these murders.

After a penalty hearing, the three-judge panel found the following aggravating circumstances: (1) the murder was committed by a person previously convicted of a felony involving the use of violence to another person; (2) the murder was committed by a person under sentence of imprisonment; and (3) the murder was committed in the furtherance of a robbery. The panel found one mitigating circumstance, that Jones was remorseful. Jones was sentenced to death.

Jones argues that there was prejudicial prosecutorial misconduct during closing argument. We conclude that at least one of the prosecutor's comments was inappropriate. ¹ However, this court will not reverse a verdict on the basis of prosecutorial misconduct when the defendant failed to object, there was overwhelming evidence of guilt, and the offensive remarks did not contribute to the verdict. Pellegrini v. State, 104 Nev. 625, 628-629, 764 P.2d 484, 487 (1988). We find that all of these circumstances exist in this case.

Next, Jones contends that the sentencing court erred in allowing the State to present evidence of torture and mutilation. According to NRS 200.033(8), as construed by this court, depravity of mind is an aggravating circumstance where the murder involves torture or mutilation of the victim. The State presented evidence to support its assertion that this murder involved torture and mutilation. Moreover, because the sentencing court did not find torture and mutilation to exist, we conclude that this argument lacks merit.

Jones also maintains that the district court erred in allowing the State to present evidence (witness testimony) of two murders which occurred in Florida. The decision to admit particular evidence during the penalty phase of a capital case is within the sound discretion of the trial court. Milligan v. State, 101 Nev. 627, 636, 708 P.2d 289, 295 (1985); NRS 48.035. Evidence of unrelated crimes for which a defendant has not been convicted is inadmissible during the penalty phase if it is dubious or tenuous, or if its probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. NRS 48.035. Otherwise, the evidence is admissible as "other matter which the court deems relevant to sentence" under NRS 175.552. Crump v. State, 102 Nev. 158, 160-161, 716 P.2d 1387, 1388-1389 (1986), cert. denied, 479 U.S. 871, 107 S.Ct. 242, 93 L.Ed.2d 167 (1986). We conclude that the district court did not abuse its discretion in finding the evidence admissible. The State presented significant, corroborated testimony of several witnesses, indicating that Jones killed a husband and wife in Jacksonville, Florida, while their teenage daughter was in the house.

Next, Jones argues that the death penalty was imposed under the influence of passion, prejudice, or other arbitrary factors. Specifically, Jones objects to the presentation of evidence of the Florida murders and the prosecutor's misstatements during closing argument. We have already determined that the Florida murders were properly admitted during the sentencing phase. As to any prosecutorial misconduct, trial judges are presumed to know the law and to apply it in making their decisions. Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). Because any evidence not properly before the court would not have been considered by the judges in determining Jones' sentence, we conclude that Jones suffered no prejudice.

Jones also asserts that the sentencing panel erroneously found three aggravating circumstances and only one mitigating factor. We conclude that the sentencing panel acted within its authority in finding that Jones was under sentence of imprisonment when he committed the murder. See Nevius v. State, 101 Nev. 238, 243, 699 P.2d 1053, 1056 (1985) (although defendant had been granted parole, was placed in a transitional facility, and walked away from facility, the court found that he was still under sentence of imprisonment at time of murder); NRS 200.033(1). Also, the sentencing panel properly found that Jones was previously convicted of a felony involving the use of threats or violence against the person of another. NRS 200.033(2). Jones had been convicted of aggravated assault; to wit, hitting his grandmother...