Servin v. State

• Decision Date: 17 October 2001
• Docket Number: No. 35884.,35884.
• Citation: 32 P.3d 1277,117 Nev. 775
• Parties: Robert Paul SERVIN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

32 P.3d 1277

117 Nev. 775

Robert Paul SERVIN, Appellant, v.The STATE of Nevada, Respondent.

No. 35884.

Supreme Court of Nevada.

October 17, 2001.

Michael R. Specchio, Public Defender, Cheryl D. Bond, Deputy Public Defender, Washoe County, for appellant.

Frankie Sue Del Papa, Attorney General, Carson City, Richard A. Gammick, District Attorney, Terrence P. McCarthy, Deputy District Attorney, Washoe County, for respondent.

BEFORE THE COURT EN BANC.

OPINION

SHEARING, J.:

AppellantRobert Paul Servin and co-defendantsPedro Rodriguez and Brian Lee Allen murdered and robbed Kimberly Fondy on April 5, 1998.Servin and Rodriguez were tried together, convicted, and sentenced to death.Allen pleaded guilty to the murder and robbery charges, and a three-judge panel sentenced him to serve two consecutive prison terms of life without the possibility of parole.

Servin contends that a number of errors occurred in the district court, none of which, we conclude, warrant relief; therefore, we affirm the judgment of conviction.After a mandatory review of the death sentence pursuant to NRS 177.055(2), however, we conclude that the imposition of the death penalty is excessive, and vacate the sentence and impose two consecutive terms of life in prison without the possibility of parole.¹

FACTS

I.Guilt phase

The following evidence was adduced at trial: on April 5, 1998, Servin, Rodriguez, and Allen set out to rob Kimberly Fondy of $35,000 reportedly kept in a safe in her house.Due to an accident which occurred when she was sixteen years old, Fondy was paralyzed below the mid-back and ambulated with the use of a wheelchair.

Sixteen years old at the time of the crime, Servin was the youngest of the three—Allen was seventeen years old, and Rodriguez was nineteen years old.According to Allen and several witnesses, Rodriguez provided the information regarding the location of Fondy's house and the supposed existence of the money; he was the only one of the three who knew Fondy and had, at one time, lived with her at her Sparks residence.While living with Fondy, Rodriguez had a key to a safe that he believed contained a large amount of money.After ingesting the methamphetamine "crank" for a number of hours, and with Rodriguez behind the wheel, the three young men drove to Fondy's home armed with a shotgun provided by Servin and a .22 caliber revolver owned by Allen.

Allen testified to the following facts: during the drive to Fondy's home, Servin stated that he"was going to shoot her if he had to."Upon arrival, Rodriguez shut off the engine and waited in the car while Servin and Allen approached the front door, which Servin proceeded to kick open.The two men entered the home—Servin armed with the revolver owned by Allen, and Allen with the shotgun provided by Servin—and eventually found Fondy in her wheelchair in the master bedroom with a portable telephone in her hand.Servin told Joana Diaz later that night that "they didn't know who she was talking to."

Fondy was in the process of reporting the two intruders via a 9-1-1 emergency call when she was apparently confronted by Servin.Although her call was terminated before it was answered, the electronic taping system automatically started recording immediately after the initial dialing.Therefore, upon review of the tape of the 9-1-1 call and hang-up, the dispatcher was able to recognize a female voice whispering what sounded like, "There are two of them."

According to Allen, upon seeing Fondy with the phone in her hand, Servin pointed the revolver at her head, yelled at her to "shut up," grabbed the phone out of her hand, tossed it on the bed, and ordered her to get into the bathroom; Fondy repeatedly stated, "I'll give you the money."Servin also hit Fondy in the head so she would stop screaming.Meanwhile Rodriguez, wearing a black and white bandana covering his face except for his eyes, entered the home and found Fondy, Servin, and Allen in the master bedroom.Servin tried to block Fondy's view of Rodriguez so she would not be able to see and identify him—the only one of the three she knew.

Allen testified that Rodriguez immediately located Fondy's safe on a vanity shelf in the bedroom, even though it was hidden and disguised as furniture.Rodriguez tossed the safe into the hallway and ordered Allen to take it outside.According to Allen, he then returned to the car with the safe, leaving Servin and Rodriguez alone in the house with Fondy.Approximately two to three minutes later, Rodriguez returned to the car.Allen testified that soon after that he heard four gunshots—two shots followed by two more shots after a couple of minutes.A neighbor of Fondy's testified that she heard "a loud pop," and a few minutes later, the same loud sound again.Within minutes after the shooting, Servin returned to the car, and with Rodriguez again behind the wheel, the three young men drove away.

After stopping by the home of Servin and Allen to pick up some friends, all three resumed ingesting crank and proceeded to the residence of friends, Carlos and Joana Diaz.After some initial difficulty, Rodriguez managed to open the locked safe, and inside were miscellaneous papers, documents, and a baseball, but not the expected money.According to Joana Diaz, Rodriguez became angry and stated, "This bitch lied.There is no money in here."Allen testified that he later took the safe from the Diaz home and tossed it in a nearby dumpster where it was eventually found.

According to Allen, Servin brought the revolver into the Diaz home; however, Emma Hernandez, Servin's girlfriend and the mother of his child, testified that when she first saw the revolver Allen was taking it out of his pants pocket, and that no one else handled it that night.Joana Diaz also testified that she first saw Allen with the revolver and that he was wearing a holster for it, but that both Servin and Rodriguez handled it during the night.Carlos Diaz testified that at the request of Allen, he flushed the two remaining bullets in the revolver down the toilet.Allen stated that later that evening, after leaving the Diaz home, he cleaned the revolver and buried it in his backyard; the revolver was eventually recovered by the police after Allen told them exactly where it was located.The shotgun was never recovered; in fact, aside from Allen's testimony, no evidence was presented that a shotgun was brought into Fondy's home.

At the Diaz home that night and the following morning, numerous inculpatory statements were made by the three men.Both Carlos and Joana Diaz testified that Servin, Rodriguez, and Allen were present when one of the three said that the bullets used in the shooting were dipped in either acid or mercury.Servin told Carlos Diaz that this was done in order to "kill her a little slow or something," and Allen told Joana Diaz that it was done "[s]o a person could die and make them suffer."Neither Servin, Rodriguez, nor Allen contradicted or corrected any of the statements made concerning the bullets or the commission of the crime.

Servin and Rodriguez were bragging about the crime during the night, and according to Allen, Servin admitted to shooting Fondy.Rodriguez told Emma Hernandez that they had shot her three or four times, and that "[w]e did it, fool."According to several witnesses, Servin was seen in possession of Fondy's cellular phone, Gameboy device, and $80 taken from her purse, and Rodriguez was seen in possession of Fondy's electronic organizer.Both Servin and Rodriguez at different times were in possession of a knife that Joana Diaz believed came from the Fondy residence; the knife was never recovered by the police.Rodriguez told Servin and Allen "not to say anything, because if they did, something was going to happen to them."Joana Diaz also testified that both Rodriguez and Servin threatened to kill anyone present at the Diaz home who spoke about the crime; Servin, referring to Allen, Rodriguez, Hernandez, and Carlos and Joana Diaz, reportedly stated that if anybody said anything that he would "smoke `em."Rodriguez called Fondy's home at some point during the night to see if any police were there.

According to Joana Diaz, the following morning Rodriguez stated that he had difficulty sleeping because "he saw [Fondy's] eyes everywhere."Servin's brother, Fernando Machado, testified that after arriving at the Diaz home and hearing about the robbery and shooting, he asked Servin, Rodriguez, and Allen, "[w]hy didn't they just tie her up and then rob her.Why did they have to shoot her," to which there was no response.Machado also heard Rodriguez state that "if the first bullet didn't do it, the other one did," because it was mercury-tipped.

An autopsy performed the morning after the murder revealed that Fondy was shot once in the right shoulder, once in the right leg, and twice in the head; the two shots to the head were contact wounds indicating that the muzzle of the gun was in direct contact with the skin when the gun was fired.Additionally, the autopsy revealed that Fondy suffered various abrasions on her neck and chest and an incised wound on the top of her head, which indicated that a sharp, slicing cut was made across the skin.Dr. Roger S. Ritzlin testified that Fondy was alive when the wounds were inflicted; thus, in his opinion the evidence was consistent with the theory that the first two shots were non-lethal shots to Fondy's shoulder and leg and the second two shots were the lethal shots to her head.Other testimony established that Fondy did not appear to have any noticeable injuries to her neck, chest, or head earlier on the day she was murdered.

Servin and Rodriguez chose not to testify at their trial, and on October 18, 1999, the jury found them guilty of first degree murder and robbery, both with the use of a deadly weapon.

II.Penalty phase

The penalty hearing began the following day, and both Servin and Rodriguez objected to the verdict forms,...