McConnell v. State, 42101.

• Decision Date: 24 March 2005
• Docket Number: No. 42101.,42101.
• Parties: Robert Lee McCONNELL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

107 P.3d 1287

121 Nev. 25

Robert Lee McCONNELL, Appellant, v. The STATE of Nevada, Respondent.

No. 42101.

Supreme Court of Nevada.

March 24, 2005.

Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant.

Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent. David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Amicus Curiae State of Nevada.

Philip J. Kohn, Public Defender, Clark County; Franny A. Forsman, Federal Public Defender, and Michael L. Pescetta, Assistant Federal Public Defender, Las Vegas; and JoNell Thomas, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.

Before the Court En Banc.¹

OPINION

PER CURIAM.

Late last year in McConnell v. State,² this court affirmed appellant Robert Lee McConnell's judgment of conviction of first-degree murder and sentence of death. The State, however, seeks rehearing, challenging our holding that "a felony may not be used both to establish first-degree murder and to aggravate the murder to capital status."³ The Clark County District Attorney ("amicus") has filed an amicus brief in support of the State's position. At our direction, McConnell filed an answer to the rehearing petition, and the Nevada Attorneys for Criminal Justice also filed an amicus brief, opposing rehearing. We conclude that the State fails to demonstrate that this court overlooked or misapprehended any material points of law or fact, so we deny the petition.

NRAP 40(a)(1) requires a petition for rehearing to "state briefly and with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended." NRAP 40(c)(1) provides: "Matters presented in the briefs and oral arguments may not be reargued in the petition for rehearing, and no point may be raised for the first time on rehearing." Under NRAP 40(c)(2), this court may consider rehearing "[w]hen the court has overlooked or misapprehended a material fact in the record or a material question of law" or "has overlooked, misapplied or failed to consider a statute, procedural rule, regulation or decision directly controlling a dispositive issue in the case."

Counsel for the State in this matter asserts that McConnell never raised the issue of the propriety of using an underlying felony as an aggravating circumstance in a felony murder and that this court acted unfairly in deciding the issue without notice to the State. He also complains that this court's opinion "falsely besmirched" his reputation, particularly by indicating that his "failure to respond to the non-existent argument somehow contributed" to the court's disposal of this appeal without oral argument.⁴ Counsel, however, is wrong.

First, as page 3 of the State's own petition for rehearing reflects, the table of contents to McConnell's opening brief expressly lists as argument VIII(A): "Burglary aggravator was improper because it alleged entry with intent to murder, based upon the underlying murder and the single act should not be allowed to count as the underlying offense and as an enhancing offense." Second, McConnell's opening brief at pages 48 and 49 specifically urges that the penalty was improperly enhanced to death based upon improper use of the felony murder aggravator and relies in large part upon the concurring opinion in our 2002 decision in Leslie v. Warden,⁵ quoting it as follows:

To meet constitutional muster, a capital sentencing scheme "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." In upholding the use of underlying felonies to aggravate felony murders, this court has never addressed Lowenfield v. Phelps, [484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988),] a United States Supreme Court case that has important implications for this issue. Under Lowenfield, an aggravating circumstance can be identical to an element of the capital murder itself as long as the state statute defines capital murder narrowly enough to begin with. However, when a state broadly defines capital offenses, the narrowing must occur through the jury's finding of aggravating circumstances at the penalty phase. Nevada broadly defines capital offenses, particularly felony murder. Thus, the required narrowing must occur through the jury's finding of aggravating circumstances.

The question is, does the felony aggravator set forth in NRS 200.033(4) genuinely narrow the death eligibility of felony murderers? First, compared to the felony basis for felony murder, NRS 200.033(4) limits somewhat the felonies that serve to aggravate a murder. But the felonies it includes are those most likely to underlie felony murder in the first place. Second, the aggravator applies only if the defendant "[k]illed or attempted to kill" the victim or "[k]new or had reason to know that life would be taken or lethal force used." This is narrower than felony murder, which in Nevada requires only the intent to commit the underlying felony. This notwithstanding, it is quite arguable that Nevada's felony murder aggravator, standing alone as a basis for seeking the death penalty, fails to genuinely narrow the death eligibility of felony murderers in Nevada.⁶

Counsel for the State also claims that he was wrongly criticized for not responding to the Supreme Court decision in Lowenfield when McConnell "never made a single mention" of that case. Counsel is again mistaken. The above quotation from Leslie in McConnell's brief clearly mentions and argues Lowenfield. In point of fact, the concurrence in Leslie, relied upon at length by McConnell, encouraged the parties to litigate the issue of narrowing on remand of that case and, by implication, invited the bench and bar generally to reconsider the issue. That McConnell chose to do so and the State did not does not mean that the issue was not framed in this appeal. It was, and we properly undertook to reach it.⁷

Furthermore, we observe that this court's examination of this state's death penalty scheme does not stand alone. The United States Supreme Court itself has in recent years reexamined its own precedent and redirected the national debate over the death penalty, placing this field of jurisprudence in transition in many respects.⁸

Counsel further incorrectly asserts that our opinion made "no mention of the State Constitution" and is based only on federal law. McConnell explicitly relied on the Nevada Constitution in addition to federal law: "We therefore deem it impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated."⁹ And we specifically identified the provisions of the Nevada Constitution that independently require aggravating circumstances to narrow death eligibility: "Nevada's own constitutional bans against the infliction of `cruel or unusual punishments' and the deprivation of life `without due process of law.'"¹⁰

The rehearing petition and the brief by amicus also fail to show that we overlooked or misapprehended any material points of law or fact in regard to the substance of our decision in McConnell.

Amicus first points out accurately that McConnell did not address whether the ruling regarding felony aggravators is retroactive, but we did not overlook this issue. Before deciding retroactivity, we prefer to await the appropriate post-conviction case that presents and briefs the issue. Amicus also informs us that it is currently prosecuting several cases that were remanded for new penalty hearings and claims that "it is impossible to know at this point whether the application of the felony aggravator at the new penalty hearing is permissible under the Court's ruling." This question, which is distinct from retroactivity in post-conviction collateral proceedings, is hardly impossible to answer. Our caselaw makes clear that new rules of criminal law or procedure apply to convictions which are not final.¹¹

The State and amicus claim that McConnell conflicts with Schad v. Arizona,¹² where a majority of the Supreme Court agreed that Arizona's defining first-degree murder as either premeditated or felony murder without requiring a jury to agree unanimously on either theory in order to convict did not violate due process. But our opinion does not require jurors to agree on one theory to convict a defendant of first-degree murder. We simply advised the State that if it charges alternative theories of first-degree murder and seeks a death sentence, jurors should receive a special verdict form that allows them to indicate what theory they base any murder conviction on. "Without the return of such a form showing that the jury did not rely on felony murder to find first-degree murder, the State cannot use aggravators based on felonies which could support the felony murder."¹³ Amicus further argues: "If premeditation and felony murder have been held to constitute the same mens rea element, then it is contrary to reason that the felony aggravator narrows one theory of first-degree murder and not the other." Amicus implies, inaccurately, that premeditation and felony murder are identical. As this court has explained, "the commission of a felony and premeditation are merely alternative means of establishing the single mens rea element of first degree murder."¹⁴ Thus, they are different ways of satisfying a single element. It is therefore not "contrary to reason" to recognize that when felony murder is used both to satisfy that element and to establish an aggravating circumstance, the required narrowing process may not be accomplished.

Citing Schad, the State also inquires what should be done "if all of the charged...