Mulder v. State

• Court: Nevada Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Mulder v. State, 116 Nev. 1, 992 P.2d 845 (Nev. 2000)
• Decision Date: 18 January 2000
• Docket Number: No. 32506.,32506.
• Parties: Michael Joseph MULDER, Appellant, v. The STATE of Nevada, Respondent.

992 P.2d 845

116 Nev. 1

Michael Joseph MULDER, Appellant, v. The STATE of Nevada, Respondent.

No. 32506.

Supreme Court of Nevada.

January 18, 2000.

Rehearing Denied March 1, 2000.

Philip J. Kohn, Special Public Defender, and Lee Elizabeth McMahon, Deputy Special Public Defender, Clark County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and David Roger, Deputy District Attorney, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

In July 1996, an elderly man's severely beaten dead body was found in his home tied up with duct tape. Appellant Michael Joseph Mulder was arrested and convicted of first degree murder, robbery upon a victim over the age of 65, and burglary while in possession of a firearm. He was sentenced to death for the murder conviction.

In his appeal, Mulder challenges the grand jury indictment, claims the district court should have continued his penalty hearing, asserts that certain grand jury testimony should not have been admitted at trial, argues that the district court should have certified his fingerprint witness as an expert, alleges prosecutorial misconduct, and complains that the evidence was insufficient to support his conviction. We conclude that none of Mulder's contentions have merit. Further, we have reviewed Mulder's death sentence pursuant to NRS 177.055(2) and conclude that it was not improperly imposed. Accordingly, we affirm Mulder's conviction and sentence of death.

FACTS

In July 1996, Mulder and his girlfriend, Kimberly Van Heusen, were visiting Las Vegas, Nevada, and were staying at the 49er Motel, near the Showboat Casino. During this time, the couple consumed drugs, and Van Heusen often prostituted herself to obtain money for drugs while Mulder sometimes worked day jobs on construction sites.

On Sunday, July 7, 1996, Van Heusen was gambling at the Showboat Casino when she met seventy-seven-year-old John Ahart in the early afternoon. The two drank, gambled, and spent time together at the Showboat for about two hours. Ahart won $80.00, and they agreed to split the money. Van Heusen and Ahart left the Showboat and went to a restaurant, an ATM machine, and a liquor store before finally arriving at Ahart's home in a senior citizen mobile home park. There, they continued to drink and spend time together until Ahart drove Van Heusen back to her motel in his maroon 1990 Infiniti coupe. Because Ahart spent the money he won, he asked Van Heusen to return the next day to receive the $40.00 he owed her.

On Monday, July 8, 1996, Mulder and Van Heusen took the bus to Ahart's home, arriving about 8 a.m. Ahart let the couple in and gave Mulder a beer and Van Heusen her $40.00. While there, Mulder apparently looked through Ahart's belongings. At some point, Mulder indicated to Van Heusen that he wanted to return to Ahart's house "to look around," which Van Heusen interpreted as Mulder's intention to steal from Ahart. After approximately one-half hour, Ahart had to leave to do some errands. He gave Mulder and Van Heusen a ride in his Infiniti, dropping Mulder off a short distance from Ahart's home so he could look for a job and dropping Van Heusen off near her motel.

Approximately an hour and one-half later, Van Heusen was in the motel room when she heard loud honking outside. Mulder was sitting in a maroon 1990 Infiniti coupe with the motor running, honking, and yelling for Van Heusen to grab their stuff and hurry up. Mulder appeared upset and nervous and told Van Heusen that he had stolen the car. Mulder's right hand was injured, and when Van Heusen asked him how that happened, Mulder replied that he had been in a "struggle." Van Heusen noticed that Mulder was wearing a new watch and that a wooden jewelry box was in the back seat of the car. Mulder then drove with Van Heusen to Phoenix, Arizona, where his family lived. Mulder later told Van Heusen that he had stolen a gun from the person with whom he had struggled, but had disposed of the gun and had not used it.

On Thursday, July 11, 1996, Mulder and Van Heusen arrived in the Infiniti at the residence of Mulder's sister, Lisa, who turned them away. They then drove to the house of Mulder's brother, Craig, who helped Mulder and Van Heusen get a motel room. Craig asked Mulder where he got the Infiniti, and Mulder replied that it was "hot." When Craig noticed the injury to Mulder's hand, Mulder replied that he got hurt in a "fight" because "the other guy" owed Van Heusen money and that he had injured his hand on "the other guy's head."

Also on July 11, 1996, Jay Ahart, Ahart's son, arrived at Ahart's home after receiving a call from Ahart's neighbor indicating that something was wrong. Jay entered the home through the back door and found his father lying dead in a pool of blood on the dining/living room floor. Ahart's ankles were bound together and his wrists were tied behind his back with duct tape. A chair had been placed over Ahart's body in an apparent attempt to conceal it from view. Jay discovered that his father's gun, watch, jewelry box, and car were missing.

The medical examiner later testified at trial that when discovered, Ahart had already been dead for a few days and the body was partially decomposed. Ahart suffered a crushed left cheekbone and several severe scalp lacerations, including a fifteen-inch hinge fracture from the front of the skull extending around back to the base of the skull. The medical examiner also pointed out several fragmentations and depressions around the skull and indicated there was hemorrhaging inside the scalp. The dura mater, a membrane encasing the brain, was torn. Overall, the medical examiner testified that Ahart died from massive head injuries due to severe impact trauma caused by multiple high-force blows from a blunt object.

The police found fingerprints in Ahart's home belonging to Van Heusen. Also, through a complicated method involving ultraviolet light, the crime scene analysts were able to lift fingerprints off the duct tape used to bind Ahart's ankles and wrists. The fingerprint expert in Las Vegas determined that those fingerprints did not belong to either Ahart or Van Heusen, but he could neither include nor exclude Mulder as the person who left those prints. After consulting his Las Vegas colleagues, who also could not accurately identify the fingerprints, the fingerprint examiner sent the prints to the FBI fingerprint laboratory.

Robert Witt, the head of the FBI lab, testified as an expert witness that the lab was equipped to identify the most difficult prints in the country and that much of his work was from local police departments whose own experts have little experience in identifying such difficult prints. Witt, who had thirty-five years of fingerprint comparison experience with the FBI, testified that without the use of sophisticated equipment he was able to positively identify the prints from the duct tape as belonging to Mulder. His identification was verified by other FBI fingerprint examiners.

Approximately two weeks after obtaining the Infiniti, Mulder somehow disposed of the car. A short time after that, on August 16, 1996, a man (not Mulder) attempted to register the car in Phoenix. The automobile title examiner verified that this was the same car that was stolen from Ahart, and when she attempted to delay the man from leaving the office, he became nervous and left.

On September 9, 1996, Van Heusen spoke to her mother for the first time since July 1996. After her mother gave her certain information,¹ Van Heusen became upset and asked Mulder if he killed Ahart on July 8, 1996. Mulder expressed surprise that Ahart was dead and explained to Van Heusen that he had had to struggle with Ahart because "[Ahart] should have done what he was told."

The Las Vegas police discovered that Mulder and Van Heusen were in Phoenix and arrested them on September 12, 1996. After proceedings before a grand jury in Las Vegas, on October 11, 1996, the state filed an indictment against Mulder for murder, robbery, and burglary. After a trial in February and March 1998, the jury found Mulder guilty of one count each of first degree murder, robbery upon a victim over the age of 65, and burglary while in possession of a firearm.

After the penalty phase, the jury determined that no mitigating factors outweighed the four aggravating circumstances: that the murder was committed (1) while the person was engaged in the commission of or an attempt to commit any burglary; (2) while the person was engaged in the commission of or an attempt to commit any robbery; (3) by a person who was previously convicted of a felony involving the use or threat of violence to the person of another, to wit: bank robbery in Arizona in 1987; and (4) by a person who was previously convicted of a felony involving the use or threat of violence to the person of another, to wit: armed robbery in Arizona in 1980. The special verdict form did not indicate what, if any, mitigating circumstances the jury found. The jury returned a verdict for the death sentence. The district court sentenced Mulder to serve two consecutive terms in prison of 48 to 180 months for robbery and a consecutive term of 40 to 180 months for burglary. This appeal follows.

DISCUSSION

I. The presence of two homicide detectives during Van Heusen's grand jury testimony

Because Van Heusen was reluctant to testify against Mulder, she was arrested as a material prosecution witness. Pursuant to the prosecutor's request, the grand jury granted permission for two homicide detectives to be present while Van Heusen testified in front of the grand jury. For the first time on appeal, Mulder challenges the indictment, contending that the officers' presence intimidated Van Heusen while she testified against Mulder. Specifically, Mulder claims that their presence violated NRS 172.235(1), limiting the people who may...