State v. Bennett

• Decision Date: 30 December 2003
• Docket Number: No. 38934.,38934.
• Parties: The STATE of Nevada, Appellant/Cross-Respondent, v. Edward Gordon BENNETT, Respondent/Cross-Appellant.
• Court: Nevada Supreme Court

81 P.3d 1

119 Nev. 589

The STATE of Nevada, Appellant/Cross-Respondent, v. Edward Gordon BENNETT, Respondent/Cross-Appellant.

No. 38934.

Supreme Court of Nevada.

December 30, 2003.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and Clark A. Peterson, Lynn M. Robinson, and James Tufteland, Chief Deputy District Attorneys, Clark County, for Appellant/Cross-Respondent.

Franny A. Forsman, Federal Public Defender, and Michael L. Pescetta, Assistant Federal Public Defender, Las Vegas, for Respondent/Cross-Appellant.

Before the Court En Banc.

OPINION

AGOSTI, C.J.

In 1988, Edward Gordon Bennett and his accomplice Joseph Beeson attempted to rob a clerk at a Stop N' Go Market in Las Vegas. Bennett shot and killed the clerk, and Beeson shot but did not kill a customer. Bennett was convicted of murder and sentenced to death. Bennett unsuccessfully sought relief on direct appeal and in a prior post-conviction proceeding. In this second post-conviction proceeding, the district court granted Bennett's petition in part by vacating his death sentence and granting him a new penalty hearing. The State appeals from that part of the district court's order, and Bennett cross-appeals from that part of the district court's order denying his remaining claims.

The district court concluded that Bennett did overcome the procedural bars to his untimely, successive petition by demonstrating that the State violated the requirements of Brady v. Maryland¹ and by further demonstrating that the district court in the first post-conviction proceeding prevented Bennett's counsel from adequately investigating the case. We conclude that the district court properly determined that the State violated Brady. In addition, we conclude that the "at random and without apparent motive" aggravator is invalid in this case. In our view, these combined errors seriously undermine the reliability of the jury's sentencing determination. Therefore, we affirm that portion of the district court's order directing a new penalty hearing. We also conclude that the district court properly declined to grant relief on any of the remaining claims in Bennett's petition.

FACTS

On February 8, 1988, Edward Bennett purchased a handgun from a pawn shop in Provo, Utah, and traveled to Las Vegas with Joseph Beeson. The next day, Bennett and Beeson entered a Stop N' Go Market in Las Vegas. A customer, Derrick Franklin, entered soon thereafter and went to the back of the store. Beeson placed a piece of candy on the counter, as if he were making a purchase. As Michelle Moore, the store clerk, rang up the candy, Bennett pulled out his gun and shot her in the face. She was killed instantly. Bennett then gave the gun to Beeson. While Bennett jumped over the counter and unsuccessfully attempted to open the cash register, Beeson approached Franklin. Franklin pleaded for his life and then ran from the store as Beeson shot at him. Franklin was struck in the leg. Bennett and Beeson chased him out on to Maryland Parkway and then finally retreated. Franklin survived his wound.

On March 5, 1988, Bennett, who had returned to Utah, told his friend, Jeffrey Chidester, about the murder. According to Chidester, Bennett bragged about his and Beeson's "killing spree." Chidester reported this to the Utah police, who contacted the Las Vegas Metropolitan Police Department (LVMPD). Chidester was then told that he was entitled to a reward for providing the information. He received a total of $32,000.

The Utah police obtained a warrant to search Bennett's house in Utah, where they seized clothing and various writings. In Las Vegas, Bennett's fingerprints were found on the Stop N' Go Market door and cash register counter. Police also determined that the gun used to kill Michelle Moore was purchased by Bennett at a pawn shop in Utah.

Bennett was subsequently arrested and charged with attempted robbery with the use of a deadly weapon, murder with the use of a deadly weapon, and attempted murder with the use of a deadly weapon. Bennett was tried by a jury and was convicted of all counts.

At his penalty hearing, Bennett presented many witnesses, including a social worker from an outpatient substance abuse center that Bennett had attended. She testified that Bennett had problems with alcohol and drugs, including marijuana, LSD, and cocaine. She further testified that he was influenced by his peers, suffered from depression, had suicidal tendencies, and suffered from dyslexia. Bennett's former employer testified that Bennett was hardworking, smart, nonproblematic, and dependable and that Bennett looked up to and bragged about Beeson. The principal of Bennett's school testified that Bennett entered an alternative program after ninth grade due to his dyslexia, that heavy metal music seemed to lead Bennett in the wrong direction due to its hypnotic effect, that this music may have led him to drugs, and that Bennett now wanted to be an example to other kids so they would not make his same mistakes. Bennett's seminary school principal testified that Bennett was a good student, had turned his life to God after his arrest, and wanted the principal to tell Bennett's story to others to save them from the evils of hell. Bennett's brother testified that Bennett had always been a very caring person but changed about a year before his arrest and became distant, unkempt, and withdrawn. An expert in satanism and heavy metal music analyzed songs that Bennett listened to before committing the crimes and testified that the writings found in Bennett's room were not satanic in nature but similar to heavy metal lyrics.

Bennett stated in allocution that he had many problems in school which led him to drugs. He said he was very influenced by Beeson and changed during their friendship. He listened to heavy metal songs and wrote similar lyrics. He was not a devil worshiper but did toy with it on occasion, and he dealt drugs and robbed to support his drug habit. He described the day of the crimes and stated that his plan was to rob but not to kill, that he went to one store but moved on because it had bulletproof glass and that he then decided on the Stop N' Go. He also claimed that he blacked out once they reached the store. He apologized for what happened and stated that if he lived he could help others.

Finally, Bennett's father testified that Bennett was an active, happy, and helpful youth. Bennett had problems in school because of his dyslexia and dropped out after the tenth grade. He always treated his family nicely and was never in any trouble until a year before his arrest when he became friends with Beeson and his appearance and attitude changed. Bennett's father also stated that his family was religious and that Bennett wanted to help others.

The State also presented many witnesses at the penalty hearing. Utah police detective Gary Caldwell testified about his previous arrest of Bennett for possession of drugs and paraphernalia. Two Utah police officers and two boys testified about an incident when Bennett and Beeson were driving and Bennett shot a pellet gun at the two boys as they walked on the street. The State also presented testimony of the officers who had executed the search warrants in the instant case and recovered witchcraft books, handwritten poetry or song lyrics discussing death and killing, and heavy metal music cassettes. A handwriting expert testified that the poetry or lyrics were in Bennett's handwriting. He read some of the writings, such as "As I kill and kill again." Last, Jeffrey Chidester testified to what Bennett told him about the crimes. Chidester admitted that he had ingested drugs after Bennett confessed to him.

At the conclusion of the penalty hearing, the jury found four aggravating circumstances: (1) in committing the murder, Bennett knowingly created a great risk of death to more than one person; (2) the murder was committed while Bennett was engaged in the commission of a burglary; (3) the murder was committed while Bennett was engaged in attempted robbery; and (4) the murder was committed at random and without apparent motive. The jury found three mitigating circumstances: (1) Bennett's lack of a criminal history, (2) Bennett's youth, and (3) Bennett's alcohol and drug usage. The jury determined that the aggravating circumstances outweighed the mitigating circumstances and rendered a verdict of death.

On direct appeal, this court affirmed Bennett's judgment of conviction and death sentence.² In November 1990, Bennett, in proper person, filed a timely petition for post-conviction relief. The district court appointed counsel to represent Bennett, but no further proceedings were calendared. More than three years passed before Bennett's counsel filed a second document raising additional claims. The district court dismissed Bennett's petition, he appealed, and this court affirmed the district court's dismissal.³

On July 7, 1998, Bennett filed a second post-conviction petition for a writ of habeas corpus in the district court. The district court appointed the Federal Public Defender to represent Bennett. The State opposed the petition on the grounds that it was successive and untimely. The district court conducted several evidentiary hearings to determine if Bennett could demonstrate good cause and prejudice to overcome the procedural bars. Bennett claimed that the State had violated Brady, that his first post-conviction counsel was ineffective in failing to assert an absence of mitigating evidence at his penalty hearing, and that the district court erred in preventing first post-conviction counsel from investigating the case.

The district court determined that Bennett had demonstrated good cause and prejudice to overcome the procedural bars due to violations of Brady and due as well to the district court's denial of his request for an investigator to assist prior post-conviction counsel. The district court vacated Bennett's death sentence,...