Riley v. State

• Decision Date: 07 July 1994
• Docket Number: No. 23621,23621
• Citation: 878 P.2d 272,110 Nev. 638
• Parties: Billy Ray RILEY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 272

878 P.2d 272

110 Nev. 638

Billy Ray RILEY, Appellant, v. The STATE of Nevada, Respondent.

No. 23621.

Supreme Court of Nevada.

July 7, 1994.

Rehearing Denied Aug. 12, 1994.

Cal J. Potter, 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:

INTRODUCTION

Appellant Billy Ray Riley (Riley) was convicted after a jury trial of one count of first degree murder and one count of robbery, both with use of a deadly weapon. The jury found five aggravating circumstances at the penalty phase, with no mitigating circumstances sufficient to outweigh them, and sentenced Riley to death for the murder. The judge sentenced Riley, as an habitual criminal to life without possibility of parole for the robbery.

Riley appealed the judgment of conviction to this court, on several grounds. ¹ This court rejected all of Riley's arguments, and affirmed the sentences, including the sentence of death. See Riley v. State, 107 Nev. 205, 208, 808 P.2d 551, 552 (1991).

At the time Riley was pursuing his direct appeal to this court, he was also a member of a class action lawsuit, filed in federal district court, naming as defendants this court and each of the individual justices. See Riley v. Nevada Supreme Court, 763 F.Supp. 446 (D.Nev.1991). The suit alleged that the portion of SCR 250 requiring strict adherence to an expedited briefing schedule in capital cases was unconstitutional, and the plaintiffs in that suit sought to enjoin this court from enforcing those rules. The federal district court judge issued a preliminary injunction enjoining the enforcement of the briefing schedule. ²

After the resolution of his direct appeal, Riley filed this petition for post-conviction relief in district court, alleging ineffective assistance of counsel at both the trial level and on appeal. Riley also alleged that he was denied "actual assistance of counsel" because of this court's bias stemming from the federal suit, and he alleged that his right to a fair and impartial jury was denied when the district court judge, on his own motion, excused a potential juror. The district court judge denied Riley's petition after considering Riley's arguments and the evidence elicited at a post-conviction evidentiary hearing. We find Riley's claims to be without merit, and affirm the district court order denying his petition for post-conviction relief.

FACTS

Riley was convicted after a jury trial of the first degree murder and robbery of Albert "Ramrod" Bollin (Bollin). On the morning of October 1, 1989, Bollin and Darrell Lee Jackson (Jackson) went to the home of Leotis Gordon (Gordon). Riley was at Gordon's home, as were Gordon and Kim Johnson (Johnson), Riley's girlfriend. Bollin lived in a room at Gordon's house.

Riley met Bollin and Jackson at the door, and asked Bollin if Bollin had any drugs. Bollin, Jackson and Riley then went into a bedroom. Bollin and Jackson began to count their money. Jackson testified that Riley became emotional and angry about the treatment he had been receiving from drug dealers. Riley told the men he was going to start robbing drug dealers who mistreated him. At this point, Bollin and Jackson gave Riley some rock cocaine, and Riley smoked it.

Jackson further testified as follows: Bollin took a shower. While Bollin was in the shower Riley asked Jackson about Bollin's drugs and money. Bollin went to his bedroom after he finished his shower, and Riley followed him in. Bollin sat on a dresser facing Riley, who sat on the bed. Jackson entered the room and stood near Bollin toward the middle of the dresser. Riley was pointing his .410 caliber sawed-off shotgun at Bollin.

Riley asked Bollin who the drugs belonged to and Bollin said, "[I]t's none [sic] mine." Riley then said, "[I]t's mine now." After this exchange Bollin said, "[N]o, dude. You know you're going to have to kill me first." Riley then asked Bollin if Bollin was "ready to die." Bollin responded, "[A]ll right. Let me finish taking this hit." After Bollin smoked some cocaine, he put down the pipe, and Riley asked him again if he was ready to die. Bollin said, "Yeah" and Riley shot Bollin in the chest.

Johnson testified that she was in the kitchen when she heard Bollin say, "[I]f you're going to kill me, just kill me." She then heard the flick of a cigarette lighter, and shortly thereafter a gunshot. Johnson immediately walked to the room and saw Riley sitting on the bed, holding his shotgun. Bollin was upright on the dresser clutching his chest. Johnson then heard Bollin call out "Leo" (Gordon). Johnson walked to Gordon's room and Gordon asked her what happened. Riley and Jackson then came into Gordon's room.

Gordon testified that he was in his room sleeping when he heard the gunshot. Gordon heard someone say, "Leo, run." Gordon asked, "What's going on here?" He then tried to exit through his window, but stopped when Riley entered the room and told Gordon to "just hold it." Riley then told Johnson to get shotgun shells, and told Jackson to take Bollin's money and drugs. Riley was holding the gun, but asked Jackson to hold the gun shortly thereafter.

Gordon asked Riley why he would kill Bollin, because Bollin didn't have money. Gordon then asked why Riley didn't "get 'L.L.' He's the guy that has [some money]." Riley, Jackson, Gordon and Johnson then went together to L.L.'s home. L.L. was not there and Riley and the others took a car belonging to Carolyn Henry (Henry). They also took Henry with them.

Riley drove the car to several stores to buy gas, food and shotgun cartridges, and then drove toward Tonopah, Nevada. During most of this trip Riley held the gun, but he also handed it to Johnson and Jackson. The group returned to Las Vegas, and Riley and Johnson hid the gun under some boards in the desert. Riley and Johnson were later arrested and Johnson led police to the gun.

Riley was convicted of the first degree murder and robbery of Bollin, both with use of a deadly weapon. The jury found five aggravating circumstances: that the murder was committed in an attempt to commit robbery or while committing robbery, and that Riley had three prior robbery convictions and one prior armed robbery conviction. The jury fixed the penalty at death for the murder and the judge sentenced Riley, as an habitual criminal, to life without possibility of parole for the robbery.

After his direct appeal, Riley filed a petition for post-conviction relief. In his petition, Riley alleged ineffective assistance of counsel, and that he was denied "actual assistance of counsel" and a fair and impartial jury. Specifically, Riley alleged six bases for ineffective assistance of counsel: (1) that trial counsel failed to adequately investigate by (a) failing to hire, consult or call a ballistics expert to testify about the trajectory of the shotgun blast that killed the victim, and (b) failing to investigate a hearsay statement allegedly exculpating Riley; (2) that trial counsel failed to offer adequate and available documentary and testimonial evidence tending to show mitigating factors at the penalty phase; (3) that trial counsel failed to object to improper statements of the prosecutor and that appellate counsel failed to raise these instances of misconduct on direct appeal; (4) that trial counsel failed to request an accomplice instruction or other instruction addressing the credibility of the state's witnesses; (5) that trial counsel failed to request a theory of the case instruction; and (6) that trial counsel failed to object to the improper striking of a juror by the trial court during voir dire of the jury venire.

Riley's claim that he was denied actual assistance of counsel on appeal was premised on the argument that the Justices of this court denied his direct appeal because of bias against Riley and his counsel for filing the class action lawsuit in federal court challenging SCR 250. Finally, Riley alleged he was denied a fair and impartial jury when the trial judge "improperly and prematurely" excused a potential juror who allegedly expressed misgivings about the death penalty.

A post-conviction evidentiary hearing was held March 23, 1992. Susie Butler (Butler), Riley's mother, testified at the hearing. Butler testified that she overheard Jackson and two people talking. She allegedly heard one man say, "[M]an, I heard they railroaded Billy Ray [Riley]." Jackson allegedly responded "[Y]es, they did. But I was the one that got his last breath." Butler claimed that Riley's trial counsel, deputy public defender Steven J. Dahl (Dahl), never let her discuss this conversation. Butler admitted at the hearing, however, that she only spoke to Dahl "one time," during which time she gave background information on Riley. She claimed that she "told [Dahl] I had some things that I [wanted] him to know, but I never did get around to telling him because he didn't call me back." ³

Dahl testified that Butler never tried to tell him about this incident before or during the trial. Dahl claimed that Riley, after the penalty phase, suggested that Dahl contact Butler because Butler told Riley about the conversation. Dahl testified that he contacted Butler twice, but Butler expressed doubt about the people she heard, and she failed to call Dahl back.

Riley also called Jack Jurasky, M.D. (Jurasky), a psychologist who had analyzed Riley's competency to stand trial. Jurasky had conducted only this pre-trial evaluation on Riley's competence to stand trial; he did not conduct a separate evaluation to discover evidence that could be used in mitigation of the sentence. Jurasky testified at the hearing that Riley grew up in a violent environment, and that an individual exposed to such an environment will often react by becoming violent. He also testified that a person on drugs is often not in full control of his actions. Dahl testified that he had hired...