Rodriguez v. State, 63423

Decision Date11 September 2015
Docket NumberNo. 63423,63423
PartiesPEDRO RODRIGUEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
CourtSupreme Court of Nevada


No. 63423


September 11, 2015

An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123


This is an appeal from a judgment of conviction in a death penalty case. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.

Appellant Pedro Rodriguez, Robert Paul Servin, and Brian Lee Allen, robbed and murdered Kimberly Fondy on April 5, 1998. Rodriguez and Servin were tried jointly and found guilty of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. The jury imposed a sentence of death on Rodriguez.1 We affirmed the convictions and sentences on appeal. Rodriguez v. State, 117 Nev. 800, 32 P.3d 773 (2001). Rodriguez successfully challenged his sentence in a post-conviction petition for a writ of habeas corpus and was granted a new penalty hearing. See Rodriguez v. State, Docket No. 48291 (Order Affirming in Part, Reversing in Part and Remanding, November 3, 2009). At a new penalty hearing, a jury again imposed a death sentence. In this appeal, Rodriguez raises issues related to the second penalty hearing.

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Motion to relieve counsel

Rodriguez argues that the district court erred in denying his motion to relieve counsel because counsel failed to negotiate for a better plea deal than had been offered by the State. He further argues that the district court's inquiry into his motion was inadequate and improperly conducted in front of opposing counsel. He also contends that the district court should not have forced him to waive his attorney-client privilege for the hearing and then continue to trial with the same counsel when the motion was denied.

We conclude that the district court did not abuse its discretion in denying the motion to withdraw or discharge counsel. See Young v. State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004) (reviewing the "denial of a motion for substitution of counsel for abuse of discretion"). Despite his allegation of a conflict of interest, Rodriguez did not demonstrate that counsel's loyalty was compromised. Rodriguez and counsel disagreed over how to best obtain a favorable plea offer from the State. This difference of opinion did not rise to the level of a "complete collapse of the attorney-client relationship." Id. at 969, 102 P.3d at 576. Further, as the State clearly indicated that there was no possibility of a more lenient plea offer, their disagreement was essentially moot. In addition, the district court's inquiry was sufficient to address the concerns raised by Rodriguez and counsel, as the district court addressed those concerns over several hearings and considered the statements of Rodriguez, counsel, and the district attorney. Rodriguez's waiver of his attorney-client privilege was necessary to determine the extent of the alleged conflict. The inquiry was

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not broader than necessary to address the concerns over the plea negotiations, so it did not hinder Rodriguez's ability to litigate the penalty hearing. Therefore, the district court adequately inquired into the grounds for the motion to withdraw, Rodriguez's reason for seeking withdrawal was not meritorious, and the conflict did not prevent counsel from presenting an adequate defense or result in an unjust verdict. See id. (noting that this court considers "'(1) the extent of the conflict; (2) the adequacy of the inquiry; and (3) the timeliness of the motion'" when reviewing a district court decision (quoting United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998))).

Juror challenge

Rodriguez argues that the district court erred in denying his challenge to potential juror McFarlin. We disagree. McFarlin's initial statements indicated that (1) he believed that the death penalty was appropriate for more than just murder cases and (2) death was the appropriate sentence for murder and it was the role of the defense to prove otherwise. Nevertheless, he acknowledged that he could listen to the evidence and follow the instructions of the district court and the district court instructed him to not presume that death is the appropriate penalty. While McFarlin expressed strong feelings about the use of the death penalty, the trial court's assessment of the juror's state of mind is entitled to great deference. Walker v. State, 113 Nev. 853, 865, 944 P.2d 762, 770 (1997) (recognizing that when a "'prospective juror's responses are equivocal, i.e., capable of multiple inferences, or conflicting, the trial court's determination of that juror's state of mind is binding." (quoting

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People v. Livaditis, 831 P.2d 297, 303 (Cal. 1992))). Therefore, Rodriguez did not demonstrate that the district court abused its discretion in denying his challenge for cause. Weber v. State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005). Moreover, although Rodriguez was compelled to use a peremptory challenge to exclude McFarlin, we held in Blake v. State that "the fact that a defendant had to use a peremptory challenge to achieve that result does not mean that the defendant was denied his right to an impartial jury," where the jury actually seated was impartial. 121 Nev. 779, 796, 121 P.3d 567, 578 (2005). Rodriguez does not allege that any juror actually empanelled was unfair or biased, and while he encourages this court to overrule Blake, he has not proffered a sufficient reason to depart from this precedent.

Evidence of codefendants' sentences

Rodriguez argues that the district court erred in denying his motion to admit evidence of the more lenient sentences imposed for his two codefendants. We discern no abuse of discretion. See Ramet v. State, 125 Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing the admission of evidence for abuse of discretion). We recognize, as Rodriguez points out, that some jurisdictions consider a codefendant's sentence relevant to a jury's sentencing decision. See, e.g., Ex parte Burgess, 811 So. 2d 617, 628 (Ala. 2000); State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989); Beardslee v. Woodford, 358 F.3d 560, 579-80 (9th Cir. 2004). However, there is no mandatory authority requiring the admission of such evidence, and we have reiterated the importance of individualized sentencing that takes into account a defendant's character, record, and the circumstances of the offense. Browning v. State, 124 Nev. 517, 526, 188 P.3d 60, 67 (2008); Harte v. State, 116 Nev. 1054, 1069, 13 P.3d 420, 430 (2000). Moreover,

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Rodriguez and his codefendants were not similarly situated. Allen pleaded guilty to avoid the death penalty. Servin v. State, 117 Nev. 775, 793, 32 P.3d 1277, 1290 (2001). Servin was sentenced to death, but his sentence was vacated as excessive based on his youth at the time of the crime, his expression of remorse, the influence of drugs at the time of the crime, and his lack of a significant criminal background. Id. at 793-94, 32 P.3d at 1290. Conversely, Rodriguez did not plead guilty; he was the oldest of the three participants in the crime and, as he had known the victim prior to the crime, the apparent orchestrator of the crime; and his criminal history included a violent sexual assault on a 14-year-old victim. Therefore, the district court did not abuse its discretion in denying the motion to admit this evidence.

Motion to set aside sentence

Rodriguez contends that the district court erred in denying his motion to set aside his death sentence because it is excessive considering that he did not shoot the victim and his codefendants received life sentences. We disagree. Rodriguez did not assert that there is insufficient evident to support the jury's decision, NRS 175.381(2) (permitting a district court to set aside verdict where insufficient evidence supports it), or that he has an intellectual disability, NRS 175.554(5) (permitting the district court to entertain a motion to set aside a death sentence based on intellectual disability). The district court did not otherwise have discretion to set aside his sentence. See Hardison v. State, 104 Nev. 530, 534-35, 763 P.2d 52, 55 (1988) ("[A]fter a jury has assessed a penalty of death, the judge has no discretion and must enter judgment according to the verdict of the jury.").

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Constitutionality of his death sentence

Rodriguez asserts that because the evidence shows that Servin fired the shots that killed the victim and there have been so few executions involving defendants who did not perform the actual killing for which they were convicted, his sentence appears arbitrary and capricious and therefore unconstitutional. We disagree. The record indicates that Rodriguez intended that lethal force be employed or participated in the robbery while exhibiting a reckless indifference to the Fondy's life. See Guy v. State, 108 Nev. 770, 783-84, 839 P.2d 578, 587 (1992) ("'To receive the death sentence, [a defendant] must have, himself, killed, attempted to kill, intended that a killing take place, intended that lethal force be employed or participated in a felony while exhibiting a reckless indifference to human life.'" (quoting Doleman v. State, 107 Nev. 409, 418, 812 P.2d 1287, 1292-93 (1991))); accord Tison v. Arizona, 481 U.S. 137, 158 (1987) (holding that ...

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