Rodriguez v. State
| Decision Date | 03 November 2009 |
| Docket Number | No. 48291.,48291. |
| Citation | 281 P.3d 1214 |
| Parties | Pedro RODRIGUEZ, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Nathalie Huynh
Attorney General Catherine Cortez Masto/Carson City
Washoe County District Attorney Richard A. Gammick
Federal Public Defender/Las Vegas
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. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Appellant Pedro Rodriguez and two other individuals set out to rob the victim, who was paralyzed and confined to a wheelchair, of a large sum of money that Rodriguez believed to be kept in a safe in her home. The three young men ingested methamphetamine for a number of hours and then drove to the victim's home. During the robbery, the victim was shot four times and killed. The evidence presented at trial indicated that Rodriguez knew the victim and provided the information regarding the location of her home but that the youngest member of the group, Robert Paul Servin, shot the victim after Rodriguez had left the home with the victim's safe. A jury convicted Rodriguez of first-degree murder and robbery, both with the use of a deadly weapon, and sentenced him to death after finding that six aggravating circumstances had been proved beyond a reasonable doubt and that there were no mitigating circumstances sufficient to outweigh the aggravating circumstances. On appeal, after invalidating the home-invasion aggravating circumstance as duplicative of the burglary aggravating circumstance, this court upheld Rodriguez's convictions and death sentence. Rodriguez v. State, 117 Nev. 800, 32 P.3d 773 (2001).
Rodriguez filed a timely post-conviction petition for a writ of habeas corpus in the district court, which was supplemented by court-appointed post-conviction counsel. The district court conducted an evidentiary hearing that was focused on Rodriguez's claim that trial counsel provided ineffective assistance by failing to investigate and present to the jury mitigating evidence. The district court ultimately rejected all of Rodriguez's claims and denied the petition. This appeal followed. We deny Rodriguez's claims for relief as to the guilt phase, but we conclude that Rodriguez's trial counsel were ineffective at the penalty phase for failing to investigate and present to the jury mitigating evidence regarding Rodriguez's background. We therefore affirm in part, reverse in part, and remand for further proceedings.
Guilt-phase claims
Rodriguez challenges the district court's rejection of his claim that appellate counsel was ineffective for not challenging the constitutionality of the Kazalyn1 instruction defining premeditation. To succeed on this ineffective-assistance claim, Rodriguez was required to satisfy the two-prong Strickland test by showing that appellate counsel's performance was deficient and that the omitted issue had a reasonable probability of success on appeal. Strickland v. Washington, 466 U.S. 668, 694 (1984); see Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). We conclude that he failed to meet the second prong.
The Kazalyn instruction had been approved by this court and was an accepted instruction for defining premeditation until this court changed course with its decision in Byford v. State, 116 Nev. 215, 234–37, 994 P.2d 700, 713–15 (2000), providing an instruction for prospective use that defined willful, deliberate, and premeditated as individual components of the intent element of first-degree murder. As this court recently held in Nika v. State, 124 Nev. 1272, ––––, 198 P.3d 839, 850 (2008), cert. denied,2009 WL 2524052 (U.S. Oct. 13, 2009) (No. 09–5928), Byford represents a change in state law that applies, as a matter of due process, to cases that were not yet final when it was decided. Because Rodriguez's direct appeal from the judgment of conviction was pending when Byford was decided, his conviction was not yet final. See Colwell v. State, 118 Nev. 807, 820, 59 P.3d 463, 472 (2002) (). The decision in Byford therefore applies to Rodriguez and appellate counsel was deficient for failing to challenge the instruction.
Rodriguez, however, failed to demonstrate prejudice based on counsel's deficient performance. The jury was instructed on the alternative theories of felony murder and torture murder in addition to willful, deliberate, and premeditated murder. Overwhelming evidence supported the verdict of guilt under a theory of felony murder, including evidence establishing that Rodriguez and his codefendants entered the victim's home specifically to rob her. Because the jury also found Rodriguez guilty of robbery, the fact that the robbery resulted in the victim's death was all that was required for a conviction for first-degree murder under the felony-murder theory. See Payne v. State, 81 Nev. 503, 505–06, 406 P.2d 922, 924 (1965). Further, although the evidence supporting the torture-murder theory was less compelling, it sufficiently demonstrated that the murder was perpetrated by means of torture for purposes of NRS 200.030(1)(a). In particular, evidence was presented at trial demonstrating that the victim suffered an incised wound on the top of her head and two non-lethal gunshot wounds and that Rodriguez and his codefendants bragged that they had dipped the bullets in acid or mercury for the purpose of causing pain or suffering. Because overwhelming evidence supported the alternative theories for first-degree murder, we conclude that “the error complained of [with respect to the Kazalyn instruction] did not contribute to the verdict obtained” and therefore would not have had a reasonable probability of success on appeal. Cortinas v. State, 124 Nev. 1013, ––––, 195 P.3d 315, 324 (2008) (), cert. denied,2009 WL 2566986 (U.S. Oct. 13, 2009) (No. 09–6028). The district court thus did not err in denying this ineffective-assistance claim.2
Rodriguez also challenges the denial of his claim that the prosecutor committed misconduct by allowing codefendant Brian Lee Allen to perjure himself at trial. This claim was raised on direct appeal and was rejected by this court. Rodriguez, 117 Nev. at 810–11, 32 P.3d at 780. This claim therefore is barred by the law-of-the-case doctrine, Hall v. State, 91 Nev. 314, 315–16, 535 P.2d 797, 798–99 (1975). Because the claim was appropriate for review on direct appeal, it also is barred by NRS 34.810(1)(b)(2). Rodriguez has not demonstrated that this claim presents an instance in which this court should disregard the law of the case nor has he demonstrated good cause and prejudice to overcome the procedural bar set forth in NRS 34.810(1)(b)(2). We therefore conclude that the district court did not err in rejecting this claim.
Rodriguez's final guilt-phase claim challenges the torture-murder instruction. This claim was not raised in the petition or supplemental petition filed in the district court. Generally, this court declines to consider post-conviction claims that have not been raised in the district court, Hill v. State, 114 Nev. 169, 178–79, 953 P.2d 1077, 1084 (1998), and Rodriguez provides no persuasive reason for this court to consider this claim for the first time in this appeal. We therefore decline to do so.3
Penalty phase claims
Rodriguez raises three penalty phase claims: (1) all of the aggravating circumstances are invalid, (2) the death sentence is disproportionate to the crime and the sentences imposed against the codefendants, and (3) trial counsel provided ineffective assistance by failing to investigate and present to the jury mitigating evidence. Because we grant relief as to Rodriguez's ineffective-assistance claim, we do not reach his claims regarding the validity of the aggravating circumstances and the proportionality of the sentence.
Ineffective-assistance claims present a mixed question of law and fact, and therefore, our review is de novo. Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508 (2001); accord Strickland, 466 U .S. at 698 (). We will, however, give deference to the district court's purely factual findings so long as they are supported by substantial evidence and are not clearly wrong. Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994).
To succeed on his claim of ineffective assistance of counsel under the two-prong test in Strickland, Rodriguez must demonstrate that (1) counsel's performance was deficient in that it “fell below an objective standard of reasonableness” and (2) the deficiency prejudiced the defense. 466 U.S. at 687–88;Kirksey v. State, 112 Nev. 980, 987–88, 923 P.2d 1102, 1107 (1996). Rodriguez bears the burden to “prove the disputed factual allegations underlying his ineffective-assistance claim by a preponderance of the evidence,” Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004), and to establish prejudice, Riley, 110 Nev. at 646, 878 P.2d at 278.
When it comes to preparing for the penalty phase of a capital case, trial counsel has a duty to conduct “a thorough investigation of the defendant's background.” Williams v. Taylor, 529 U.S. 362, 396 (2000); see also Kirksey, 112 Nev. at 995, 923 P.2d at 1112 (); ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4 .1(C) (1989) (...
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