McNelton v. State

• Decision Date: 27 July 1995
• Docket Number: No. 25127,25127
• Citation: 111 Nev. 900,900 P.2d 934
• Parties: Charles D. McNELTON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 934

900 P.2d 934

111 Nev. 900

Charles D. McNELTON, Appellant, v. The STATE of Nevada, Respondent.

No. 25127.

Supreme Court of Nevada.

July 27, 1995.

Morgan D. Harris, Public Defender and Robert D. Caruso and Delbert Eugene Martin, Deputy Public Defenders, Clark County, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City; Stewart L. Bell, Dist. Atty. and James Tufteland, Chief Deputy Dist. Atty. and David J. Roger, Deputy Dist. Atty., Clark County, for respondent.

OPINION

PER CURIAM:

Charles McNelton was convicted of first degree murder with the use of a deadly weapon and was sentenced to death pursuant to a jury verdict. At trial, three eyewitnesses who were acquainted with McNelton testified that they saw him approach the victim, Monica Glass, grab the back of her head, point a gun at her forehead, pull the trigger, and walk away as she fell.

McNelton's only allegations of error at the guilt phase of the trial are: (1) the prosecutor's failure to provide gender-neutral grounds for the exercise of peremptory challenges when six men and three women had been challenged, and (2) the district court's failure to prevent McNelton from presenting an alibi defense which he now claims was an unwise tactical decision as it destroyed his credibility. After careful review, we conclude that neither of these contentions have merit.

The majority of McNelton's arguments on appeal relate to the penalty phase of the trial. McNelton argues that his conviction should be reversed due to: (1) prosecutorial misconduct in commenting on McNelton's failure to testify, (2) the district judge's failure to fully advise him of his rights regarding his statement to the jury, (3) the admission of evidence that the victim was pregnant, and (4) an improper finding of aggravating circumstances.

PROSECUTORIAL MISCONDUCT

At the penalty phase of the trial, McNelton exercised his right of allocution, which is his right to make an unsworn statement to the jury in mitigation of sentencing, and includes " 'statements of remorse, apology, chagrin or plans and hopes for the future.' " Homick v. State, 108 Nev. 127, 133, 825 P.2d 600, 604 (1992) (quoting DeAngelo v. Schiedler, 306 Or. 91, 757 P.2d 1355, 1358 (1988)). After McNelton made his statement, the prosecutor, in his rebuttal closing argument, stated:

And then we heard from the Defendant in his unsworn statement not subject to cross-examination, and we learned quite a bit about this person that we will be punishing here, Mr. McNelton. This was his opportunity to express remorse, to say how sorry he was about Monica Glass, how he felt about taking a human life and his remorse.

This was the opportunity for Mr. McNelton to tell you that, "I'm going to make this a positive. If you give me life without parole, I'm going to work hard in prison. I'm going to abide by the duties and the regulations that are imposed upon me. I'm going to make myself a better person."

[OBJECTION AND OBJECTION OVERRULED]

And he stood before you. He was here facing the people that were going to determine his future, and not once did you ever hear his remorse about killing Monica Glass; not once did you ever hear about apologies for his criminal behavior; not once did you hear him say that he was sorry [for his past crimes].

(Emphasis added.)

McNelton claims that these statements constituted an improper comment on the exercise of his Fifth Amendment right against self-incrimination, violating the rule enunciated in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). We disagree.

In Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991), this court stated:

The United States Constitution states that a defendant shall not "be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V; see also Nev. Const. Art. 1, Sec. 8. A direct reference to a defendant's decision not to testify is always a violation of the fifth amendment. See Griffin v. California, 380 U.S. 609, [85 S.Ct. 1229, 14 L.Ed.2d 106] (1965); Barron v. State, 105 Nev. 767, 783 P.2d 444 (1989). When a reference is indirect, the test for determining whether prosecutorial comment constitutes a constitutionally impermissible reference to a defendant's failure to testify is whether "the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant's failure to testify." United States v. Lyon, 397 F.2d 505, 509 (7th Cir.), cert. denied sub nom., Lysczyk v. United States, 393 U.S. 846 [89 S.Ct. 131, 21 L.Ed.2d 117] (1968). See also Barron, 105 Nev. at 779, 783 P.2d at 451-52. The standard for determining whether such remarks are prejudicial is whether the error is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 21-24 [87 S.Ct. 824, 826-28, 17 L.Ed.2d 705] (1967).

The prosecutor's comments in this case refer indirectly to McNelton's failure to testify. Pursuant to Harkness, the first question is whether the jury would naturally and necessarily view the prosecutor's comments as comments on McNelton's failure to testify. We conclude that the jury would not naturally and necessarily view them that way. The prosecutor accused the defendant of failing to express remorse. The natural inference the jury would draw from this statement would be that the defendant was an unfeeling man, not that he failed to testify. ¹

McNelton exercised his right of allocution, and the prosecutor was entitled to comment in rebuttal on McNelton's statement, including commentary on what McNelton did not say which he could properly have said within the bounds of an allocution statement. There is a difference between a comment on the defendant's failure to testify and a comment on omissions in the defendant's statement which reflect on his character. See United States v. Lopez-Alvarez, 970 F.2d 583, 595-96 (9th Cir.), cert. denied, 506 U.S. 989, 113 S.Ct. 504, 121 L.Ed.2d 440 (1992) (prosecutor may comment on defense's failure to present exculpatory evidence, as long as that comment is not phrased to call attention to defendant's failure to testify). Viewed in context, the prosecutor's comments in the instant case did not call attention to McNelton's failure to testify, but instead addressed McNelton's failure to show any compassion for the victim while seeking compassion for himself. Admission of these statements did not constitute error. Even if the inference were drawn from the prosecutor's statements that he was commenting on McNelton's failure to testify, we conclude that the error was harmless beyond a reasonable doubt.

FAILURE TO ADVISE OF RIGHTS

McNelton alleges that the district court committed reversible error by not advising him thoroughly regarding his right to testify. McNelton argues that the district court had a duty to advise him that if he testified at the penalty phase, cross-examination would be limited to the scope of the mitigation testimony. We disagree that the judge had that duty. In Hardison v. State, 104 Nev. 530, 534, 763 P.2d 52, 55 (1988), this court held that the trial court has no affirmative duty to advise the defendant that he may make an unsworn statement to the jury in a death penalty case. ² In Hardison, under the applicable statute, NRS 175.552, the defendant was given every opportunity to present evidence in mitigation of his punishment. Id. In the instant case the district court advised McNelton of his right to testify under oath and his right to make an unsworn statement regarding remorse, apology, chagrin or plans for the future; McNelton took advantage of that opportunity. The trial judge has no duty to advise the defendant of every ramification of his decision to make an unsworn statement. Rather, defendant's trial counsel has this obligation.

ADMISSION OF EVIDENCE

McNelton contends that the sentencing phase of the trial was rendered fundamentally unfair by the introduction of evidence that the victim was pregnant at the time she was murdered. We disagree. This court has held that in the penalty phase of a first degree murder case, NRS 175.552 permits the trial court to govern the admissibility of victim impact evidence. ³ Smith v. State, 110 Nev. 1094, 1106, 881 P.2d 649, 657 (1994). The United States Supreme Court has recognized that admission of victim impact information is not unconstitutional. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). ⁴ Since "[v]ictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question," it is not categorically barred by the Eighth Amendment. Id. at 825, 111 S.Ct. at 2608. States have broad discretion in enacting legislation and rendering decisions regarding the use of victim impact evidence in the sentencing determination. Id. "In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Id. at 825, 111 S.Ct. at 2608. The question is whether the victim impact evidence " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)).

In Homick v. State, 108 Nev. 127, 137, 825 P.2d 600, 606 (1992), we set out the standard for relevancy in sentencing hearings as follows:

The key to criminal sentencing in capital cases is the ability of the sentencer to focus upon and consider both the individual characteristics of the defendant and the nature and impact of the crime he committed. Only then can the sentencer truly weigh the evidence before it and determine a defendant's just deserts.

There is no doubt that the fact that the victim was pregnant...