Petrocelli v. State, 14468

Citation101 Nev. 46,692 P.2d 503
Decision Date04 January 1985
Docket NumberNo. 14468,14468
PartiesTracy PETROCELLI, Appellant, v. The STATE of Nevada, Respondent.
CourtSupreme Court of Nevada

David G. Parraguirre, Public Defender, Jane G. McKenna, Deputy Public Defender, Reno, for appellant.

D. Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty., Gary H. Hatlestad, Deputy Dist. Atty., Reno, for respondent.

OPINION

STEFFEN, Justice:

A jury convicted appellant Tracy Petrocelli of first degree murder and sentenced him to death. Our review of the record convinces us that Petrocelli was fairly tried, convicted and sentenced. We therefore affirm.

Tracy Petrocelli's journey to Reno began in Washington where he killed his fiancee. He fled Washington and apparently drove to Colorado in a Corvette, to Oklahoma in a van and to Reno in a Datsun which he stole while "test driving" the vehicle. Upon arriving in Reno, Petrocelli decided he needed a four-wheel drive truck to get around in the snow. The next day, his search for a vehicle ultimately led to a local used car dealer. The dealer, James Wilson, acceded to Petrocelli's request for a test drive of a Volkswagen (VW) pickup, and the two drove off with the dealer at the wheel. At about 1:30 p.m., a Dodge dealer saw them driving north on Kietzke Lane. Approximately forty-five minutes later, a Reno patrolman saw one person driving a truck matching the description of the VW speeding toward Pyramid Lake.

That evening, Petrocelli was picked up on the Pyramid Highway and given a ride to Sutcliffe. He told the driver that his motorcycle had broken down. In Sutcliffe, Petrocelli got a ride to Sparks with a local game warden. Petrocelli then took a cab to Reno and apparently paid his fare from a two-inch roll of bills.

The next day, the game warden and his partner looked for Petrocelli's motorcycle. Instead, they found the VW truck with bloodstains and bullet holes on the passenger side. The car dealer's body was found later that day in a crevice, covered with rocks, sagebrush and shrubbery. His back pockets were turned slightly inside out and empty; his wallet was missing. The victim, who usually carried large amounts of cash with him, had been shot three times with a .22 caliber weapon. One shot was to the neck; another shot was to the heart. The third shot was to the back of the head from a distance of two to three inches.

In the abandoned truck, .22 caliber bullet casings were found. When he was arrested, Petrocelli was carrying a .22 caliber semi- automatic pistol which he testified he always carried loaded and ready to fire. Ballistics tests on the casings found in the abandoned VW revealed that they had been fired from Petrocelli's pistol. Tests on the bullet found in Wilson's chest and a test bullet fired from Petrocelli's pistol also revealed similar markings.

At trial, Petrocelli provided his own account of the killing. After driving off the car lot, the car dealer stopped at a gas station and filled the truck. From the station, Petrocelli drove the truck. He and Wilson proceeded to argue about the price of the truck. Petrocelli laid $3,500.00 on the dashboard and offered a total of $5,000.00 cash. The car dealer was insulted and called him a "punk." Later, on the way back, Wilson twice grabbed for the steering wheel. Petrocelli then pulled out his pistol and said: "Now who is the punk." The victim laughed and said he had a gun also, although Petrocelli never saw one. The car dealer tried to take the pistol from Petrocelli as he continued to drive. As they struggled, the gun went off two or three times. Petrocelli testified, "I knew it was shooting, and I was just trying to pull it away from him.... It was an accident. It was an accident. I didn't do anything. I just tried to keep him from getting the gun." Petrocelli drove to a nearby doctor's office, went up to the door, but did not go in because he "didn't know how to tell him [doctor] there was someone hurt, shot in the car." Thereafter, Petrocelli went to a bowling alley and called the hospital, but "didn't know what to say." He then returned to the truck, drove to Pyramid Lake and hid the car dealer's body under some rocks. Petrocelli began walking after his truck bogged down, but then returned to the vehicle to retrieve his gloves and the gun. He also picked up the car dealer's wallet, took his money, threw the business and credit cards into the wind, and discarded the wallet. Petrocelli then walked to the highway where he obtained rides back to Reno.

Petrocelli was convicted by a jury of first degree murder and robbery with the use of a deadly weapon. The sentence for the murder conviction was set at death. Petrocelli now appeals the judgment of conviction of first degree murder and imposition of the death penalty.

The first issue on appeal is whether the district court committed reversible error by attempting to clarify the concept of reasonable doubt for the jury during voir dire. NRS 175.211 defines reasonable doubt and provides that no other definition should be given to juries. 1 The trial judge twice read the statutory definition to the jury, once at voir dire and once during the formal reading of instructions. After the voir dire reading, however, the judge explained reasonable doubt further, including an example referring to ninety-seven yards of a one hundred-yard football field. 2 Petrocelli, relying on McCullough v. State, 99 Nev. 72, 657 P.2d 1157 (1983), maintains that the "ninety-seven yard line" example represented an attempt to quantify the concept of reasonable doubt, which impermissibly lowered the prosecutor's burden of proof. Contrary to McCullough, the district court here properly gave the jury the statutory definition, not one which had been disapproved in prior decisions. Moreover, in McCullough we explained: "While an attempt by the trial court to clarify the meaning of reasonable doubt is not by itself reversible error, ... the question on appeal is whether the court's statements correctly conveyed the concept of reasonable doubt to the jury...." Id. at 75, 657 P.2d at 1158 (citations omitted). Although the district court did give a numerical example, it was tempered by an effort to prevent the jury from reducing reasonable doubt to a quantitative proposition. Our review shows that the trial court attempted to impress upon the jury that reasonable doubt means reaching a "subjective state of near certitude," as required by the Supreme Court. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). We nevertheless again reiterate our admonition in McCullough that district courts refrain from elaborating on the statutory definition of reasonable doubt for purposes of clarification or otherwise. Since we perceive neither advantage to the state nor prejudice to the defendant in the trial court's comments we are constrained to hold that no reversible error occurred in conveying the concept of reasonable doubt to the jury.

Second, Petrocelli contends that the district court committed reversible error by admitting testimony relating to the prior killing of his girl friend, Melanie Barber. Procedurally, the state sought to interject the subject of the Barber offense during its cross-examination of Petrocelli. After the state had concluded its case in chief, Petrocelli took the stand and testified that the Wilson shooting was accidental. During a post-arrest statement, Petrocelli had similarly described the Barber shooting as accidental.

In Carlson v. State, 84 Nev. 534, 537, 445 P.2d 157, 159 (1968) we expressed our concern regarding evidence of collateral offenses by stating that:

[N]o reference shall be made to such collateral offenses unless, during the state's case in chief, such evidence is relevant to prove motive, intent, identity, the absence of mistake or accident, or a common scheme or plan; and then, only if such offense is established by plain, clear and convincing evidence. A necessary corollary is that such evidence may not be received to impeach the defendant, except evidence of a prior felony conviction.

The subject of collateral offenses or prior "bad acts" was later codified under our evidence code as NRS 48.045(2). 3 Although the state made no attempt to admit evidence of the Barber killing during its case in chief, it did seek to raise the subject during the cross-examination of the defendant. The state's purpose in doing so, however, was not to impeach the defendant. Petrocelli interjected the issue of accidental killing by his own testimony. The state sought to prove absence of accident through evidence pertaining to the Barber death which had occurred only five months prior to the instant offense.

We consider first the procedure followed by the district court prior to admitting evidence or allowing questions pertaining to the collateral offense. After Petrocelli's testimony on direct examination, the state appropriately requested the district court's permission to raise the collateral offense issue via a hearing outside the presence of the jury. During the hearing, the state presented its reasons why the collateral offense was admissible under certain exceptions specified by NRS 48.045(2). Thereafter, the state apprised the trial judge of the quantum and quality of its evidence proving that the defendant had committed the prior offense. Finally, the trial judge weighed the probative value of the proffered evidence against its prejudicial effect. The procedure thus described was correct.

Next, we consider whether the district court erred in ruling that evidence of the collateral offense was admissible. In the course of the Barber incident, Petrocelli tried to drag the young woman out of her place of employment; she resisted and they struggled. Petrocelli pulled out the same gun that later killed Wilson and killed her in a flurry of shots. He claimed that her death was also accidental. The evidence clearly was relevant...

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