Nevill, In re

• Decision Date: 12 September 1985
• Citation: 39 Cal.3d 729,704 P.2d 1332,217 Cal.Rptr. 841
• Parties: , 704 P.2d 1332 In re Robert Lee NEVILL; on Suspension. L.A. 31993.
• Court: California Supreme Court

Page 841

217 Cal.Rptr. 841

39 Cal.3d 729, 704 P.2d 1332

In re Robert Lee NEVILL; on Suspension.

L.A. 31993.

Supreme Court of California.

Sept. 12, 1985.

Charles M. Sevilla and Cleary & Seville, San Diego, for petitioner.

Herbert M. Rosenthal, Truitt A. Richey, Jr., San Francisco, Ellen A. Pansky and JoAnne Earls Robbins, Los Angeles, for respondent.

BY THE COURT.

This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar that Robert Lee Nevill be suspended from the practice of law for five years on conditions of probation, including actual suspension for thirty months after his release from prison. ¹ Petitioner was convicted of voluntary manslaughter (Pen.Code, § 192, subd. (a)) in the shooting death of his wife of 13 years. Upon review, we conclude that disbarment is the more appropriate discipline.

In the disciplinary proceedings below, petitioner and respondent State Bar entered into a "Stipulation as to Facts and Discipline." (See Rules Proc. of State Bar, rules 401-408.) The stipulation contains the following recital of the relevant facts leading up to and including the killing: "[Petitioner] and his wife, Marcie Nevill, began having marital difficulties in approximately August 1981. Some of these difficulties involved Mrs. Nevill's relationship with a male co-worker in her office. On November 20, 1981, [petitioner] picked up the couple's sixteen-month-old daughter from her nursery school and took her to Mrs. Nevill's office. He advised Mrs. Nevill that he and the child were leaving, then took the child home. Shortly thereafter, Mrs. Nevill left her office and also went home. [p] When Mrs. Nevill arrived home, an argument ensued and [petitioner] shot his wife approximately ten times with a rifle in the bedroom of their house. Death was immediate. [Petitioner] telephoned the police, his mother, and his wife's office shortly after the shooting and advised them all that he had just killed his wife. [p] Police officers arriving on the scene found Mrs. Nevill's body in the couple's bedroom. [Petitioner] was outside of the house holding his daughter. He appeared very upset and made numerous unsolicited and emotional statements such as 'I killed her,' 'I did it,' 'I was supposed to kill myself.' [Petitioner] was taken into custody immediately."

This rather abbreviated factual summary may be supplemented by reference to the trial transcript. ² The transcript reveals the following facts: The Nevills' marital discord was compounded by each spouse's admitted infidelity, Mrs. Nevill's accelerated professional advancement, petitioner's lack of success as a lawyer ³ and his recent loss of a local election. Petitioner wanted his wife to quit work and stay home with their child. The couple argued, reconciled and argued again. After at least one such episode, petitioner became physically violent, throwing his wife down on a couch and striking her repeatedly.

On the morning of the killing, Mrs. Nevill declined petitioner's invitation to meet for lunch, telling him that her coworkers were taking her out to celebrate the start of her planned 30-day leave of absence. After she left for work, petitioner visited a friend who "knew a lot of people" to discuss locating someone to beat up Mrs. Nevill's lover and teach him to stay away from her. Petitioner and his friend smoked marijuana and used cocaine.

Petitioner next called his "paramour" to break a lunch date for that afternoon, falsely stating that he was waiting for a phone call "on a verdict." He then called Mrs. Nevill and renewed his invitation to meet for lunch. She declined.

Suspicious, petitioner drove to his wife's office, hid behind a bush and, using binoculars, observed her leaving with a man. Petitioner tried to follow the car but eventually lost track of it. He then had three drinks, returned to Mrs. Nevill's office and used more cocaine. After waiting some time, he drove to his daughter's nursery school, ostensibly to make sure that his wife had not taken her. Finding the child at the school he then took her with him and returned to Mrs. Nevill's office where he confronted her about her lunch date. Mrs. Nevill admitted that she had lied.

Petitioner then announced that he was leaving Mrs. Nevill and taking the child with him. Mrs. Nevill expressed concern that the child was becoming a pawn in their dispute ⁴ but agreed to move with him for a trial period.

Petitioner put the child in the car and sped home, hoping that Mrs. Nevill would follow. While waiting for her to arrive, he placed a rifle on top of the bed concealing it with a sheet. He began packing and used more cocaine.

When Mrs. Nevill arrived, alone, the couple argued. Petitioner accused her of being seen going into a hotel with the other man. She allegedly responded that she had not slept with the man "this week." Petitioner then told her to call the other man, which she attempted to do without success. Finally, petitioner grabbed the rifle and fired three shots into the bedroom floor. Mrs. Nevill, seated on the bed, called out, "you really are crazy aren't you?" Petitioner immediately turned the gun on her, shooting her 10 or 11 times. He then called the police and Mrs. Nevill's parents, and was subsequently taken into custody.

Petitioner was charged with murder (Pen.Code, § 187). At trial, Dr. Randolph Reed, a forensic psychiatrist who had examined petitioner and conducted a sodium amytal interview with him, testified for the defense that petitioner had a "mixed personality disorder," which meant he was a "psychologically weak, immature, and fragile individual" who dealt with problems in a childlike fashion. Reed opined that this disorder did not cause the shooting, but it contributed to petitioner's inability to handle significant stress. Reed concluded that petitioner was coming apart psychologically before the killing and, therefore, did not have the capacity to intend to kill.

After the jury returned a verdict of voluntary manslaughter, the trial court sentenced petitioner to the upper term of six years plus an additional two years for using a firearm. Upon notice of conviction this court referred the matter to the State Bar for a report and recommendation as to whether the facts and circumstances surrounding the commission of the crime involved moral turpitude or other misconduct warranting discipline. (Bus. & Prof.Code, § 6102, subds. (a) and (c); In re Rothrock (1940) 16 Cal.2d 449, 455, 106 P.2d 907.)

Petitioner and the principal referee for the State Bar entered into the "Stipulation as to Facts and Discipline" referenced above. In addition to the factual statement, the stipulation contains a "Statement of Mitigating Circumstances," which recites what petitioner would have testified to had he been called as a witness in the disciplinary proceedings. In summary, petitioner would have testified that: a confluence of factors contributed to the marital disharmony; Mrs. Nevill had asked for a separation and then changed her mind, promising to stay home and forget the other man; petitioner feared losing his child and had made efforts to obtain marriage counseling; petitioner only took his daughter from the nursery school because she cried to go with him; he secreted the rifle under the sheet to scare Mrs. Nevill's boyfriend in case the couple tried to take the child from him; immediately after killing Mrs. Nevill he was "an emotional basket case" and planned to kill himself; and, Dr. Reed diagnosed petitioner as having a "mixed personality disorder" which prevented him from being "able to deal with relationships or stress in a realistic fashion."

The stipulation does not include an explicit finding regarding moral turpitude; rather, it contains a simple statement that the killing "does involve misconduct warranting discipline." The stipulation includes the following recommended discipline: five-year suspension stayed; probation for five years including thirty months actual suspension following petitioner's release from prison; quarterly reports to the State Bar as to his familiarity and compliance with the provisions of the State Bar Act and the Rules of Professional Conduct; abstenance from the "excessive use of intoxicants and mind- or mood-altering drugs" unless medically prescribed; and psychiatric counseling.

Upon the hearing panel's recommendation, the review department voted to approve the stipulation. Three of the review department referees voted against the stipulation on the ground that the recommended discipline appeared insufficient in view of the stipulated facts.

I

In reviewing cases of attorney misconduct, this court attributes substantial weight to the State Bar's recommendations as to discipline. (Olguin v. State Bar (1980) 28 Cal.3d 195, 199, 167 Cal.Rptr. 876, 616 P.2d 858; Inniss, supra, 20 Cal.3d at 558, 143 Cal.Rptr. 408, 573 P.2d 852.) The court is duty bound, however, to exercise its independent judgment in determining the appropriate discipline in any given case. (Garlow v. State Bar (1982) 30 Cal.3d 912, 916, 180 Cal.Rptr. 831, 640 P.2d 1106; Weir v. State Bar (1979) 23 Cal.3d 564, 576, 152 Cal.Rptr. 921, 591 P.2d 19; Jackson v. State Bar (1979) 23 Cal.3d 509, 513-514, 153 Cal.Rptr. 24, 591 P.2d 47.) Because petitioner stipulated that his behavior constituted misconduct warranting discipline, our task is limited to adjudging what degree of discipline is warranted. ⁵

The discipline ultimately imposed must be consistent with its purpose, that of protecting the public, the courts, and the legal profession from unfit practitioners. (In re Possino (1984) 37 Cal.3d 163, 168, 207 Cal.Rptr. 543, 689 P.2d 115.) In determining the extent of discipline to be imposed we must consider each case on its own facts (Toll v. State Bar (1974) 12 Cal.3d 824, 831, 117 Cal.Rptr. 427, 528 P.2d 35), taking into account not only the offense itself, but also any aggravating or mitigating factors. (Tarver v. State Bar (1984) 37...