Paine v. State
| Decision Date | 07 July 1994 |
| Docket Number | No. 24304,24304 |
| Citation | 877 P.2d 1025,110 Nev. 609 |
| Parties | Frederick Lavelle PAINE, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
This is Frederick Lavelle Paine's second appeal to this court from a sentence of death. In the first appeal, we affirmed the district court's finding that Paine had acted randomly and without apparent motive when he committed murder, but nevertheless vacated the sentence because of the appearance that one of the sentencing judges may have been inattentive during the proceedings. Paine v. State, 107 Nev. 998, 823 P.2d 281 (1991) (Paine I ). A different three-judge panel thereafter resentenced Paine to death, thus presenting the occasion for the instant appeal.
Paine now raises six assignments of error as a basis for relief: (1) the district court erred in finding that the murder was committed at random and without apparent motive; (2) the district court erred when it denied Paine's motion to exclude prejudicial photographs; (3) the Nevada death sentencing statute is unconstitutional; (4) Paine was improperly denied the opportunity to withdraw his guilty plea; (5) Paine's second confession was elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (6) the sentence of death is excessive considering the instant offense and Paine's criminal history. We conclude that Paine's assignments of error are without merit.
On January 9, 1990, Paine and his partner, Marvin Doleman, went to a cab stand in downtown Las Vegas and randomly hired a cab for the purpose of robbing the driver. Upon arriving at the requested destination, Paine drew a gun and shot the driver three times in the head. After robbing the driver of $22.00, Paine and his accomplice fled. Fortunately, the driver survived. Nine days later, the two men decided to randomly rob another cab driver. In the early morning hours of January 19, 1990, the men flagged a cab and instructed the driver, Kenneth Marcum, to take them to a pre-arranged location in Las Vegas. Doleman carried the gun on this occasion in an effort to prevent a shooting incident similar to that which had occurred on January 9, 1990. When the cab arrived at the appointed location, Doleman became nervous and signaled to Paine not to proceed with the intended robbery. Because the robbery was aborted, Doleman dropped the gun and jumped out of the cab when it came to a stop. Marcum turned to see what was happening, and without saying anything, Paine picked up the gun and shot Marcum twice. The wounds were fatal. The two men then absconded with $45.00 and Marcum's wristwatch. Paine later testified that at no time prior to the incident had he intended to shoot Marcum; murder was simply not a part of the robbery plan.
Paine and Doleman were apprehended at the Continental Hotel later the same day, where Paine was immediately informed of his Miranda rights. Paine again received a Miranda caution at the police station and signed a card indicating his understanding of his enumerated rights. Later the same day, Paine provided the police with a ten-minute tape-recorded statement in which he confessed to his involvement in the murder. Paine was readvised of his Miranda rights at the outset of the tape-recorded statement, and he signed a second card indicating that he understood those rights.
Approximately thirty minutes after the first statement was given, Paine was interviewed by a second police detective. Prior to this interview, Paine again indicated that he was aware of his constitutional rights, although the Miranda warnings were not repeated at that time. During the second tape-recorded statement, Paine confessed to his involvement in the January 9, 1990, incident.
Paine was charged with one count of attempted murder, one count of murder with the use of a deadly weapon, and two counts of robbery with the use of a deadly weapon. Paine initially entered a plea of not guilty to all four counts. Sometime after a jury sentenced Doleman to death for his part in the murder, Paine attempted to escape from the Clark County Detention Center. After being charged with attempted escape, Paine agreed to plead guilty to the four original charges in exchange for the State's dismissal of the attempted escape charge. Paine was never informed that evidence of the attempted escape would be used against him during the penalty phase of the proceedings.
On August 17, 1990, Paine entered guilty pleas to all four of the original counts. Our review of the district court's canvass reveals that Paine clearly understood he could be sentenced to death for the murder charge. On October 15, 1990, a penalty hearing commenced before a three-judge panel. The panel found two aggravating circumstances beyond a reasonable doubt: (1) the murder was committed while [Paine] was engaged in the commission of a robbery with a deadly weapon, to-wit, a .25 calibre semi-automatic pistol, and the defendant killed Kenneth Marcum in the course of said robbery; and (2) the murder was committed upon one person at random and without apparent motive. The panel also found, as a single mitigating circumstance, the youth of the defendant (age 19) at the time the crime was committed.
The panel concluded that the aggravating circumstances outweighed the mitigating circumstance and sentenced Paine to die by lethal injection. On appeal to this court, Paine contended that the second aggravating circumstance was unsupported by the record, and that one of the three sentencing judges was inattentive during the proceedings. For reasons related to the latter concern, we vacated the sentence and remanded the matter for resentencing. Paine v. State, 107 Nev. 998, 1001, 823 P.2d 281, 283 (1991).
Following our decision in Paine I, Paine filed a motion to withdraw his guilty plea, claiming that he did not fully understand its consequences because prior counsel had failed to inform him that three-judge panels return sentences of death more often than juries. The district court denied Paine's motion without an evidentiary hearing.
A new three-judge panel commenced Paine's second sentencing hearing on September 23, 1992. Prior to the hearing, Paine objected to three photographs that depicted the inside of the cab after the murder was committed. The first photograph was a close-up picture of a trip log and a clipboard that were lying on the seat. The second photograph was a "withdrawn view of the whole front seat area of the cab shot from the driver side doorway," and the third photograph was similar to the second, but shot from the passenger-side doorway. All three photographs revealed some blood, prompting Paine to argue that their effect was more prejudicial than probative. The State agreed to withdraw the passenger-side photograph, and the court admitted the first two photographs. Paine also submitted a motion in limine to exclude evidence of the attempted escape, which had been introduced at the first penalty hearing. Paine argued that he received ineffective assistance of counsel at the time he pleaded guilty because he was not informed that the escape evidence would be introduced at the penalty hearing. He thus contended that he received no benefit from his plea negotiations. The district court agreed that Paine may not have received the benefit of his bargain and granted the motion in limine. 1
Marvin Etcoff, a psychologist called by Paine, testified that Paine came from a chaotic, dysfunctional and unstable familial environment, and that Paine's mother was a manic-depressive with psychotic components. Etcoff also testified that Paine suffered from Attention Deficit Hyperactivity Disorder (hyperactivity), a generalized anxiety disorder with depressive features, and an avoidant personality disorder with schizoid and antisocial features. Finally, he concluded that Paine was an impulsive person with a great deal of inner anger.
The second sentencing panel found beyond a reasonable doubt that two aggravating circumstances under NRS 200.033 existed: (1) the murder was committed during the commission of a robbery; and (2) the murder was committed upon a person at random and without apparent motive. As mitigating circumstances, the panel found, in addition to the youth of the defendant, that Paine was raised in a dysfunctional family setting, and that Paine had openly and consistently confessed his crimes. In considering both the aggravating circumstances and the mitigating circumstances, the panel found that the former outweighed the latter, and again sentenced Paine to death. This appeal followed.
Paine raises several issues on appeal, most of which we will discuss, and all of which we reject as meritless. Paine first contests the district court's finding that the murder was aggravated because it was committed at random and without apparent motive. See NRS 200.033(9). In Paine I, we held:
We have previously concluded that a killing may properly be found to be random and without apparent motive if the robbery could have been completed without killing the victim.... William Robert Walker, a Las Vegas cab driver who miraculously survived a similar attack by Paine and Doleman on the evening of January 9, 1990, testified that he was shot three times in the head without any warning before Paine and Doleman demanded any money. Furthermore, Paine testified during the penalty hearing that "[t]here was no reason for me to even pull the trigger, you know, in either case." Therefore, we reject Paine's argument as to this issue and hold that there was sufficient evidence to conclude that the killing of Marcum was not necessary to complete the robbery.
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