Nunnery v. State

• Citation: 263 P.3d 235,127 Nev. Adv. Op. 69
• Decision Date: 27 October 2011
• Docket Number: No. 51870.,51870.
• Parties: Eugene Hollis NUNNERY, Appellant,v.The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

263 P.3d 235

127 Nev. Adv. Op. 69

Eugene Hollis NUNNERY, Appellant,

v.The STATE of Nevada, Respondent.

No. 51870.

Supreme Court of Nevada.

Oct. 27, 2011.

David M. Schieck, Special Public Defender, and JoNell Thomas and Ivette A. Maningo, Deputy Special Public Defenders, Clark County, for Appellant.Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, and David L. Stanton and Nancy A. Becker, Deputy District Attorneys, Clark County, for Respondent.Catherine Cortez Masto, Attorney General, and Robert E. Wieland, Senior Deputy Attorney General, Carson City, for Amicus Curiae Office of the Attorney General.Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Amicus Curiae Washoe County District Attorney.Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Amicus Curiae Washoe County Public Defender.Franny A. Forsman, Federal Public Defender, and Michael Pescetta, Assistant Federal Public Defender, Las Vegas, for Amicus Curiae Office of the Federal Public Defender for the District of Nevada.Paola M. Armeni, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.Before the Court En Banc.

OPINION

By the Court, CHERRY, J.:

A jury found appellant Eugene Nunnery guilty of multiple charges and sentenced him to death for a first-degree murder conviction. Nunnery raises numerous claims of error at the guilt and penalty phases of his trial and challenges his death sentence. We conclude that none of his claims warrant relief and therefore affirm the judgment of conviction.

In this opinion, we focus primarily on three of Nunnery's claims related to the penalty phase of the trial. First, we consider the circumstances in which a district court may allow an untimely notice of evidence in aggravation under SCR 250(4)(f). We hold that the district court has discretion to allow an untimely notice of evidence in aggravation upon a showing of good cause and that the relevant factors include the danger of prejudice to the defense in its preparation as a result of the untimely notice. Second, we consider whether the confidentiality provision in NRS 176.156 precludes the admission of presentence investigation reports at penalty hearings. We conclude that it does not and that the admission of information in presentence investigation reports is within the discretion of the trial judge. Third, we consider whether Nunnery's Sixth Amendment trial rights were violated when the district court declined to instruct the jury that it must find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances before it could find him eligible for the death penalty. We conclude that the district court did not err because the weighing of the aggravating and mitigating circumstances is not a factual determination subject to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and because Nevada's statutory scheme focuses on whether there are mitigating circumstances sufficient to outweigh the aggravating circumstances, not whether the aggravating circumstances outweigh the mitigating circumstances.

FACTS AND PROCEDURAL HISTORY

On the night of September 22, 2006, a group of five men were in the parking lot of a Las Vegas apartment complex conversing and listening to music when Nunnery and three other men ¹ approached them and demanded money. All four assailants were armed with guns. Three of the victims took out their wallets and placed them on the ground, but 19–year–old Victor Ambriz–Nunez was unable to get his wallet out of his pocket and decided to run, prompting Nunnery and his companions to begin firing their weapons. Nunnery grabbed Ambriz–Nunez's uncle, Saul Nunez, and shot him in the head at close range, killing him. He also fired at the fleeing Cesar Leon, hitting him in the back of the head. At the same time, Nunnery's companions were shooting at the other fleeing victims. Leon survived, as did the remaining three victims: Ambriz–Nunez was able to escape without being hit and Leo Carlos and Leobardo Ledesma both survived by falling to the ground and pretending that they were dead. Before fleeing, Nunnery shot Nunez twice more to ensure that he was dead.

A cell phone dropped at the crime scene led the police to one of Nunnery's companions. During the subsequent search of an apartment where Nunnery resided, investigators recovered a gun that was forensically matched to shells recovered from the crime scene and the bullet recovered from Nunez's head. Nunnery confessed to the crime during an interview with police. In particular, he admitted to planning the robbery and choosing the victims, as well as to killing Saul Nunez and shooting Leon.

Nunnery was charged with open murder for the shooting of Saul Nunez based on three theories: (1) premeditation and deliberation, (2) felony murder, and (3) aiding and abetting. In addition, he was charged with attempted murder for the shooting of Cesar Leon, attempted murder for shooting at the fleeing Victor Ambriz–Nunez or Leobardo Ledesma, conspiracy to commit robbery, robbery, and two counts of attempted robbery. The State elected to seek the death penalty, and Nunnery was tried separately from his codefendants.

At the guilt phase of trial, the State presented the testimony of the surviving victims, other eyewitnesses to the crime, investigating officers, and the pathologist who performed the autopsy and concluded by presenting Nunnery's confession. The defense did not present any evidence. After deliberating for two hours, the jury returned a verdict of guilty on all counts.² The case then proceeded to a jury trial on the penalty for the murder conviction.

The district court bifurcated the penalty hearing into two phases. In the first phase, the jury heard evidence of the aggravating and mitigating circumstances and weighed those circumstances; in the second phase, the jury considered other evidence relevant to sentencing and determined the sentence for the murder conviction.

During the first phase of the penalty hearing, the State alleged six aggravating circumstances based on the guilt-phase evidence: Nunnery had been convicted of four violent felonies based on (1) the attempted murder of Cesar Leon, (2) the attempted murder of Victor Ambriz–Nunez or Leobardo Ledesma, (3) the armed robbery of Cesar Leon, and (4) the attempted robbery of Leobardo Ledesma, NRS 200.033(2)(b); (5) he “knowingly created a great risk of death to more than one person,” NRS 200.033(3); and (6) the murder was committed while he was engaged in a robbery, NRS 200.033(4). In support of these aggravating circumstances, the State moved to introduce all of the evidence that had been presented at the guilt phase and did not present any additional evidence.

As mitigating evidence, Nunnery presented testimony concerning his childhood and mental health history. The defense called 14 witnesses, including members of Nunnery's extended family, former teachers, ex-girlfriends, investigators for the defense, and two expert witnesses. Nunnery's family members testified that his father had been a drug addict and his mother had been an alcoholic, his mother died of an overdose when he was young, and he and his siblings were taken from his father and placed in foster care. In foster care, the children were separated; Nunnery was moved frequently due to his behavior and therefore lacked a stable living situation. Turning to his mental health, Nunnery presented testimony regarding his intellectual functioning and the possibility that he suffered from fetal alcohol syndrome, which refers to the mental, physical, and growth problems that a child may experience when a mother consumes alcohol during pregnancy.³ His former teachers testified that Nunnery had some minor learning disabilities, while two expert witnesses suggested that Nunnery exhibited effects that were consistent with a mild form of fetal alcohol syndrome. According to Dr. William Orrison, a neuroradiologist, an MRI showed that Nunnery had a below-average number of connections in his corpus callosum, which was consistent with fetal alcohol effect.⁴ Dr. Thomas Kinsora, a clinical neuropsychologist, concurred with that opinion and further opined that Nunnery has problems with impulse control and has a cognitive disorder, but he admitted that the evidence did not show “full blown” fetal alcohol syndrome.

The jury unanimously found that the State had proven all six aggravating circumstances beyond a reasonable doubt. One or more jurors found eleven mitigating circumstances: (1) Nunnery's parents were drug addicts, (2) he was born and raised in poverty, (3) his mother died at an early age, (4) he was exposed to drug abuse and crime at an early age, (5) his father abandoned the children, (6) he was raised without adequate parental figures, (7) he had no extended family support, (8) he was separated from his siblings by the system, (9) he suffered from Low Impulse Control, (10) he suffered from Attention Deficit Disorder, and (11) he was a special education student. The jury concluded that the mitigating circumstances were not sufficient to outweigh the aggravating circumstances.

During the second phase of the penalty hearing, the State presented evidence related to Nunnery's criminal history and a victim-impact statement from Nunez's brother. The criminal-history evidence included a prior conviction for trafficking in a controlled substance and pending charges that included two other murders. One of the pending cases involved a murder and robbery that occurred approximately 10 days before the incident in this case under similar circumstances; the other pending case involved the murder of a drug dealer and shooting of a 15–year–old girl that had occurred the preceding month. Nunnery...