State v. Haberstroh

• Decision Date: 30 May 2003
• Docket Number: No. 38600., No. 38404
• Citation: 119 Nev. 173,69 P.3d 676
• Parties: The STATE of Nevada, Appellant, v. Richard HABERSTROH, a/k/a Gerald Haberstroh, a/k/a Patrick James Hickey, a/k/a Ricky Hickey, a/k/a Lee Divincent, Respondent. Richard Haberstroh, a/k/a Ricky Hickey, a/k/a Patrick James Hickey, a/k/a Gerald Haberstroh, a/k/a Lee Divincent, Appellant, v. Warden, Nevada State Prison, E.K. McDaniel, Respondent.
• Court: Nevada Supreme Court

69 P.3d 676

119 Nev. 173

The STATE of Nevada, Appellant, v. Richard HABERSTROH, a/k/a Gerald Haberstroh, a/k/a Patrick James Hickey, a/k/a Ricky Hickey, a/k/a Lee Divincent, Respondent.

Richard Haberstroh, a/k/a Ricky Hickey, a/k/a Patrick James Hickey, a/k/a Gerald Haberstroh, a/k/a Lee Divincent, Appellant, v. Warden, Nevada State Prison, E.K. McDaniel, Respondent.

Nos. 38404, 38600.

Supreme Court of Nevada.

May 30, 2003.

As Modified May 30, 2003.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and Clark A. Peterson, James Tufteland, and Lynn M. Robinson, Chief Deputy District Attorneys, Clark County, for Appellant in Docket No. 38404 and Respondent in Docket No. 38600.

Franny A. Forsman, Federal Public Defender, and Elizabeth Brickfield and Michael L. Pescetta, Assistant Federal Public Defenders, Las Vegas, for Respondent/Appellant Richard Haberstroh.

Before the Court En Banc.

OPINION

ROSE, J.:

In 1986, Richard Haberstroh kidnapped a young woman in Clark County, then robbed, sexually assaulted, and murdered her. After his first trial ended in a mistrial, he was convicted at a second trial and sentenced to death. Haberstroh unsuccessfully sought relief on direct appeal and in a prior post-conviction proceeding. In this second post-conviction proceeding, the district court granted partial relief in favor of Haberstroh, vacating his sentence and granting him a new penalty hearing. The State appeals from that part of the district court's order, and Haberstroh appeals from the part denying the remainder of his petition.

The district court concluded that Haberstroh's death sentence should be vacated because the jury's finding of depravity of mind as an aggravating circumstance, without a proper limiting instruction, was unconstitutional. This error is undisputed, and we conclude that it was not harmless beyond a reasonable doubt. The district court otherwise upheld Haberstroh's conviction, and he raises numerous issues in that regard. We conclude that they do not warrant relief and therefore affirm the district court's order.

FACTS

Early in the morning on July 21, 1986, Haberstroh abducted a young woman, Donna Kitowski, from a grocery store parking lot in Las Vegas. He took Kitowski into the desert outside the city, robbed her, sexually assaulted her, and strangled her with a ligature. The strangulation caused irreparable brain damage and ultimately Kitowski's death.

After his arrest, Haberstroh was appointed counsel, Deputy Public Defender George Franzen. Haberstroh pleaded not guilty to various felony charges, including first-degree murder of Kitowski with the use of a deadly weapon. The charges also included kidnapping, sexual assault, attempted robbery, and attempted murder of another victim, Suzette Yake, in a different incident. The week before trial was set to begin, Haberstroh moved to dismiss Franzen and to proceed with his own defense. The district court canvassed Haberstroh extensively to determine if he understood the charges against him, the elements of each crime that the State had to prove, and the possible penalties. The court questioned Haberstroh about his education and prior legal experience. The court advised him that he would not receive any special indulgence by proceeding without counsel and informed him that his appointed counsel was an experienced criminal trial lawyer. Haberstroh nevertheless insisted that he be allowed to represent himself. The court granted the motion to dismiss counsel, but ordered Franzen to remain as standby counsel. The trial ended in a mistrial with the jurors voting eleven to one for conviction. A new trial date was set for September 1987. The charges involving Yake were severed from the second trial.

Early in June 1987, Haberstroh informed the district court that he wished to represent himself again at the second trial. On September 15, 1987, just six days before trial, Haberstroh moved to continue the trial and to have Franzen reappointed as defense counsel. The court was pleased to do so and willing to grant a one-week continuance. Franzen stated that he needed at least a month to prepare. When the court refused to continue the trial for longer than one week, Haberstroh, after an off-the-record conversation with Franzen, stated that he was prepared to proceed himself. Franzen again acted as standby counsel.

The second jury found Haberstroh guilty of first-degree murder, first-degree kidnapping, sexual assault, and robbery, each with the use of a deadly weapon. At Haberstroh's request, Franzen was appointed as counsel for the penalty phase of the trial, but Haberstroh requested that no witnesses be called on his behalf because he did not want his friends and family embarrassed by the publicity. At the end of the penalty phase, the jurors returned a sentence of death. They found no mitigating circumstances and five aggravating circumstances: the murder was committed by a person previously convicted of a felony involving the use or threat of violence, it was committed during the commission of a robbery, it was committed during the commission of first-degree kidnapping, it was committed during the commission of sexual assault, and it involved depravity of mind. Haberstroh also received four consecutive terms of life in prison without possibility of parole for the kidnapping and sexual assault and two consecutive fifteen-year prison terms for the robbery.

This court affirmed Haberstroh's sentence on direct appeal.¹ Haberstroh then sought post-conviction relief, claiming that he had received ineffective assistance of counsel and that his waiver of the right to counsel had not been voluntary and intelligent. After an evidentiary hearing on the matter, the district court denied relief, and this court affirmed the denial.²

In November 1997, Haberstroh filed a petition for a writ of habeas corpus in the district court, raising 43 main issues. In September 1998, the district court adopted a stipulation by the parties that some claims would be considered on the merits after an evidentiary hearing, that some other claims would be considered on the merits without the taking of any evidence, and that still other claims had already been rejected by this court and in the State's view were subject to the doctrine of the law of the case. The parties stipulated that they had substantial evidence to present on any procedural default issues but had "choseen to allow adjudication on the merits for the sake of efficiency and fairness."

The district court held an evidentiary hearing over several days from July 1999 to June 2001 and granted the habeas petition in part. It concluded that the penalty-phase jury instruction on depravity of mind had been unconstitutional and that the error was not harmless. It therefore vacated the sentence of death and ordered a new penalty hearing. The court decided no other penalty-phase claims and rejected all of Haberstroh's guilt-phase claims. The State and Haberstroh appealed.

DISCUSSION

NRAP 30(b) and the requirement of brevity in appendices

As a preliminary matter, we admonish Haberstroh's attorneys, Assistant Federal Public Defender Michael Pescetta, for filing an appendix containing extensive irrelevant material. Pescetta filed an appendix of 52 volumes and 11,384 pages. In his briefs to this court, however, he did not cite to even a single page in 22 of the volumes, and for most of the other volumes, he cited to only a few pages out of an entire volume. Including thousands of pages of appendix that were not relevant to this appeal violated the Nevada Rules of Appellate Procedure and needlessly burdened this court and its staff. NRAP 30(b) expressly provides that "[b]revity is required" in appendices and that "all matters not essential to the decision of issues presented by the appeal shall be omitted."

In response to questions at oral argument in this case, attorney Pescetta asserted that he considered it necessary to impose such a massive record on this court to ensure that he preserves the record for future proceedings in federal court. This response is unacceptable. We do not see how including materials in the record before this court, without relying on them to support issues raised here, could operate to preserve those materials. Moreover, we question what purpose these materials could serve in the federal court if they were of no use to Haberstroh in the proceedings before this court.

We therefore admonish Pescetta for filing an appendix which grossly violates NRAP 30(b) and caution him that we will consider sanctions for similar conduct in the future.

Further, counsel for both Haberstroh and the State cited to the appendices without providing volume numbers. This is technically not a violation of NRAP 28(e), which expressly requires every assertion regarding the record only to be supported "by a reference to the page of the transcript or appendix." But citation to the specific volume is necessary when appendices or transcripts have multiple volumes, and we direct all appellate attorneys before this court to also cite the volume number in such cases.

Stipulation by the parties in regard to the procedural default rules

We must consider whether it was valid for the parties to stipulate to allow resolution of many of the issues on the merits. We conclude that a stipulation by the parties cannot empower a court to disregard the mandatory procedural default rules.

NRS 34.810(1)(b) provides that a court "shall dismiss" a habeas petition that challenges a conviction resulting from a trial if the grounds for the petition could have been presented in earlier proceedings, absent cause and prejudice. NRS 34.810(2) similarly provides that a successive petition "must be dismissed" if it fails to allege new grounds for relief after a prior determination on the merits, or if it alleges new grounds but the failure to assert them in a prior petition constitutes abuse of the writ, again...