Pertgen v. State

• Decision Date: 31 May 1994
• Docket Number: No. 21141,21141
• Citation: 875 P.2d 361,110 Nev. 554
• Parties: Wes Joseph PERTGEN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 361

875 P.2d 361

110 Nev. 554

Wes Joseph PERTGEN, Appellant, v. The STATE of Nevada, Respondent.

No. 21141.

Supreme Court of Nevada.

May 31, 1994.

Rehearing Denied July 22, 1994.

Sgro & Perry, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland, Chief Deputy Dist. Atty., Clark County, for respondent.

OPINION

PER CURIAM:

Appellant Wes Joseph Pertgen brutally murdered his landlord, who was found shot, stabbed, beaten and bound in a refrigerator. He also kidnapped, beat and raped a woman, who was found in a drainage ditch, chained and covered with sagebrush. He was convicted of first-degree murder with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, sexual assault with use of a deadly weapon, attempted murder with use of a deadly weapon, and possession of a firearm by an ex-felon. For committing these crimes, Pertgen was sentenced to death, and in addition, to four consecutive life terms, two consecutive twenty year terms, and one six year term. This capital case has previously been before this court on direct appeal. See Pertgen v. State, 105 Nev. 282, 774 P.2d 429 (1989) (affirming Pertgen's convictions and sentences).

Subsequent to this court's affirmance, on September 6, 1989, appellant filed in the district court a petition for post-conviction relief. Following an evidentiary hearing, the district court denied the petition. This appeal followed. Appellant raises issues pertaining to both the guilt phase and the penalty phase of his trial. We conclude that appellant's allegations of error in the guilt phase are without merit. We therefore affirm that portion of the district court's order. With regard to the penalty phase, we conclude that serious constitutional error infected the penalty hearing. The error prejudiced appellant's defense such that the imposition of the death penalty was improper. We are therefore constrained to reverse and remand for a new penalty hearing.

DISCUSSION

GUILT PHASE

1. Validity of appellant's confession

Appellant contends that his confession was obtained in violation of his Fifth and Sixth Amendment rights, and that therefore any evidence regarding his confession should have been suppressed. He asserts that this error prejudiced him because without evidence of the confession, he alleges that he could not be linked to the murder.

This issue was raised in appellant's direct appeal and rejected by this court. See Pertgen, 105 Nev. at 287, 774 P.2d at 432. Our previous holding on this issue is now the law of the case. Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975). The doctrine of the law of the case cannot be avoided by a more detailed and precisely focused argument. Id. at 316, 535 P.2d at 799. Furthermore, the record is clear that appellant's confession was knowingly and voluntarily given. Appellant's contention therefore lacks merit.

2. Ineffective assistance of counsel

Next, appellant contends that he was denied effective assistance of counsel during the guilt phase of his trial. To state a claim of ineffective assistance of counsel that is sufficient to invalidate a judgment of conviction, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that counsel's errors were so severe that they rendered the jury's verdict unreliable. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985).

Appellant bases his ineffectiveness claim on four assignments of error. First, he contends that trial counsel was ineffective for allowing appellant to testify at trial. Our review of the record, however, reveals that appellant testified against the advice of counsel. Appellant had a constitutional right to testify on his own behalf. Phillips v. State, 105 Nev. 631, 782 P.2d 381 (1989). Appellant has failed to demonstrate how allowing him to exercise his constitutional right to testify fell below an objective standard of reasonableness under Strickland.

Second, appellant contends that trial counsel was ineffective because counsel inadequately prepared and presented the insanity defense at trial. Appellant further contends that trial counsel failed to present the theory of diminished capacity to negate intent. Counsel's failure to obtain or present adequate psychiatric testimony regarding appellant's sanity was raised and rejected in appellant's direct appeal. Pertgen, 105 Nev. at 284, 774 P.2d at 430. Our previous holding on this issue is therefore the law of the case. Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975). In addition, we conclude that counsel's failure to present a theory of diminished capacity was a tactical decision. Consequently, appellant has failed to demonstrate that counsel's performance fell below an objective standard of reasonableness under Strickland.

Third, appellant contends that trial counsel was ineffective because counsel failed to listen to the tape of appellant's confession, failed to introduce the tape into evidence at trial, and failed to provide a copy of the tape to appellate counsel. This argument is premised on the assumption that the tape conflicted with the trial testimony regarding appellant's confession. Our review of the record, however, reveals that the testimony adduced at trial was not inconsistent with the taped confession. As previously determined, appellant's confession was not obtained unconstitutionally. Therefore, appellant has failed to demonstrate that counsel's performance fell below an objective standard of reasonableness under Strickland.

Fourth, appellant contends that trial counsel was ineffective because counsel failed to object to numerous instances of prosecutorial misconduct. Although we conclude that counsel's failure to object fell below an objective standard of reasonableness, we have determined that the errors were not so severe that they rendered appellant's convictions unreliable under Strickland. Accordingly, appellant's claim of ineffective assistance of counsel during the guilt phase of his trial must fail.

PENALTY PHASE

1. Preliminary comment

Appellant challenges, on multiple grounds, the aggravating circumstances used to justify imposition of the death penalty in this case. To begin, we note that, although he could have, appellant did not raise these issues at trial or on direct appeal. As a general rule, issues raised in a post-conviction petition which could have been raised on direct appeal are considered waived absent a showing of good cause and actual prejudice. See former NRS 177.375(2); Johnson v. Warden, 89 Nev. 476, 477-78, 515 P.2d 63, 64 (1973).

Nevertheless, appellant argues that defense counsel should have raised these issues previously. He asserts that defense counsel should have challenged the constitutionality of the aggravating circumstances and should have noticed discrepancies between the notice of intent to seek the death penalty, the special verdict form, and the jury instructions. Appellant asserts that counsel's derelictions deprived him of his Sixth Amendment right to the effective assistance of trial and appellate counsel. See generally, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). He argues that these issues are not waived because counsel's ineffectiveness establishes both good cause and actual prejudice.

Under certain circumstances, a valid claim of ineffective assistance of appellate counsel may establish good cause such that we may review apparently meritorious issues that should have been raised on direct appeal. Under the unique circumstances of this case, we consider appellant's allegations to be sufficient to overcome this significant procedural hurdle. Moreover, the power of this court to address plain error or issues of constitutional dimension sua sponte is well established. Emmons v. State, 107 Nev. 53, 60-61, 807 P.2d 718, 723 (1991); see also Edwards v. State, 107 Nev. 150, 153 n. 4, 808 P.2d 528, 530 n. 4 (1991) (where appellant presents an adequate record for reviewing serious constitutional issues, this court will address such claims on the merits). Because this case involves the ultimate punishment and because appellant's claims of ineffective assistance of counsel are directly related to the merits of his claims, we will consider appellant's claims on the merits in order to determine whether appellant received ineffective assistance of counsel.

2. Constitutionality of aggravating circumstances

Appellant first challenges the two aggravating circumstances found by the jury to support his death sentence: "depravity of mind" and "torture." He contends that these aggravating circumstances were not supported by the evidence and that, because the terms "depravity of mind" and "torture" were not defined for the jury, they were unconstitutionally vague in violation of his Eighth Amendment rights. We agree that the terms "depravity of mind" and "torture" were unconstitutionally vague because they were not defined for the jury. Moreover, under the unique circumstances of this case, we conclude that the omission was highly prejudicial.

At the penalty hearing, the jury was given numerous instructions regarding its role in deciding the penalty, but no instructions regarding the definition of the aggravating circumstances upon which the state sought imposition of the death penalty. Instruction No. 7 listed the possible aggravating circumstances, which included the following:

4. The murder involved torture.

5. The murder involved depravity of mind.

Significantly, the jury was not instructed regarding the definition of "torture" or "depravity of mind," nor were any instructions given regarding the significance or meaning...