Rippo v. State
| Decision Date | 16 November 2006 |
| Docket Number | No. 44094.,44094. |
| Citation | 146 P.3d 279 |
| Parties | MICHAEL RIPPO, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Christopher R. Oram, Las Vegas, for Appellant.
George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
Before the Court En Banc.
This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus in a death penalty case. Appellant Michael Rippo invokes this court's holding in McConnell v. State that "it [is] impermissible under the United States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution on the felony upon which a felony murder is predicated."1 This court has concluded in Bejarano v. State2 that McConnell's holding is retroactive; we therefore apply it here. Three of the aggravating circumstances found by the jury in this case were invalid under McConnell, but three valid aggravators remain. We conclude that the jury's consideration of the invalid aggravating circumstances was harmless beyond a reasonable doubt and therefore affirm.
On February 18, 1992, Rippo and Diana Hunt robbed and killed Denise Lizzi and Lauri Jacobson. Rippo and Hunt went to Jacobson's apartment where Hunt knocked Jacobson to the floor with a beer bottle and Rippo used a stun gun to subdue both Jacobson and Lizzi. Rippo then bound and gagged the women, dragged them to a closet, and strangled them. He took Lizzi's car and credit cards and later used the credit cards to make several purchases. The medical examiner testified that both women died of asphyxiation and that their injuries were consistent with manual and ligature strangulation.3
Under a plea agreement with the State, Hunt pleaded guilty to robbery and testified against Rippo. The State presented two theories of first-degree murder: the murder was premeditated and deliberate, and the murder was committed during the commission of a felony. The jury found Rippo guilty of two counts of first-degree murder and one count each of robbery and unauthorized use of a credit card.
In the penalty phase, the State presented evidence that Rippo was convicted of committing a violent sexual assault in 1982 as well as juvenile burglaries. The State also presented testimony by five relatives of the two murder victims. The defense called three witnesses to testify on Rippo's behalf: a prison vocational instructor and minister, Rippo's stepfather, and Rippo's sister. Defense counsel also read a letter from Rippo's mother to the jury. The jury found that six circumstances aggravated the murder: it was committed by a person under a sentence of imprisonment, it was committed by a person previously convicted of a felony involving the use or threat of violence, it was committed during a burglary, it was committed during a kidnapping, it was committed during a robbery, and it involved torture. The jury further found that the aggravators outweighed any mitigating circumstances and returned verdicts of death for the two murders.
This court affirmed Rippo's judgment of conviction and sentence.4 Rippo filed a timely petition for a writ of habeas corpus in the district court. After conducting an evidentiary hearing, the district court denied Rippo's petition in December 2004.
Citing McConnell,5 Rippo contends that the State impermissibly based three aggravating circumstances in the penalty phase on felonies used to support the felony-murder charge in the guilt phase. Because the district court had already denied Rippo's habeas petition when this court issued its decision in McConnell, he first raised this issue in this appeal. However, after supplemental briefing on the matter, we conclude, and the State agrees, that the issue is appropriate for our resolution on appeal. First, Rippo has good cause for raising his McConnell claim now because its legal basis was not available at the time he pursued his habeas petition in the district court.6 Second, the McConnell issue presents questions of law that do not require factual determinations outside the record. The State concedes that no purpose would be served by requiring Rippo to file a successive petition invoking McConnell in order to decide his claim.
We held in McConnell that in any case where the State seeks a death sentence and "bases a first-degree murder conviction in whole or part on felony murder," an aggravating circumstance cannot be based on the felony murder's predicate felony.7 Absent a verdict form "showing that the jury did not rely on felony murder to find first-degree murder, the State cannot use aggravators based on felonies which could support the felony murder."8 This court has concluded that the new rule set forth in McConnell is substantive and retroactive.9 We will therefore apply it here.
We address first the State's argument that the theory of felony murder in this case can be disregarded under McConnell because there is "ample evidence" that Rippo committed premeditated murder. This approach has no basis in McConnell. The holding and rationale in McConnell do not involve determining the adequacy of the evidence of deliberation and premeditation; rather, they are concerned with whether any juror could have relied on a theory of felony murder in finding a defendant guilty of first-degree murder. We did conclude that McConnell's own conviction for first-degree murder was "soundly based on a theory of deliberate, premeditated murder," leaving the felony-murder theory without consequence.10 That conclusion, however, is effectively limited to the facts of McConnell. First, McConnell pleaded guilty, so a jury did not determine his guilt. Second, McConnell expressly testified that he had premeditated the murder. Third, "[h]is other testimony and the evidence as a whole overwhelmingly supported this admission."11 Thus, in McConnell there was no chance that a finding of guilt, particularly a jury verdict, depended even partly on a theory of felony murder.
McConnell applies here because the district court instructed the jury that Rippo was accused of two counts of murder for killing the victims "willfully, feloniously, without authority of law, with malice aforethought and premeditation and/or during the course of committing Robbery and/or Kidnapping and/or Burglary." (Emphasis added.) The verdict form did not indicate whether the jury found first-degree murder based on premeditated murder, felony murder, or both. In the penalty phase, the jury found three felony aggravators based on robbery, kidnapping, and burglary—the felonies that underlay the State's felony-murder theory. These three aggravators therefore must be struck.
This court can still uphold Rippo's death sentence by reweighing the aggravating and mitigating circumstances if we are convinced that the effect of the invalid aggravating circumstances was harmless beyond a reasonable doubt.12
The State cites Brown v. Sanders,13 a recent Supreme Court decision, in support of its argument that the jury's consideration of the invalidated felony aggravators was harmless error. In Brown, the Court concluded that an invalidated sentencing factor causes constitutional error "only where the jury could not have given aggravating weight to the same facts and circumstances under the rubric of some other, valid sentencing factor."14 The State argues that the error here was harmless because the jury was permitted to consider the evidence relevant to the invalid felony aggravators as "other matter" evidence under Nevada's capital sentencing scheme. This argument fails to take into account that a Nevada jury may consider "other matter" evidence only after it has decided whether a defendant is eligible for the death penalty.15 The consideration of invalid factors before that point skews the eligibility decision, even if those factors would be relevant in deciding subsequently whether a death-eligible defendant actually should receive a death sentence. The primary focus of our analysis, therefore, is on the effect of the invalid aggravators on the jury's eligibility decision, i.e., whether we can conclude beyond a reasonable doubt that the jurors would have found that the mitigating circumstances did not outweigh the aggravating circumstances even if they had considered only the three valid aggravating circumstances rather than six.
The three invalid felony aggravators all involved the circumstances of the murder itself, so striking them eliminates the weight of roughly one major aggravator.16 Three aggravators found by the jury remain valid: the murder was committed by a person under a sentence of imprisonment, it was committed by a person previously convicted of a felony involving the use or threat of violence, and it involved torture. The bulk of the case in aggravation therefore remains intact.
A review of the record reveals that the mitigating evidence presented on Rippo's behalf was not weighty. Rippo's counsel called three witnesses. James Cooper testified that he was employed by the Department of Prisons as a vocational education instructor and ran a prison ministry. He supervised Rippo's work and was his minister. Cooper was unaware of Rippo having ever caused a problem and believed that Rippo was an asset in the prison and would work and stay out of trouble. Next, Rippo's stepfather Robert Duncan testified that Rippo had not received the help he needed while previously incarcerated and was released without being placed in any transitional facility. Mr. Duncan testified that Rippo was likeable and the two had a good relationship. Rippo's sister Stacie Roterdan in turn testified that their stepfather (before Mr. Duncan) had been hard on Rippo and that Rippo did not get a fair chance when he was 15 years old.
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