Thomas v. State
| Decision Date | 28 December 2006 |
| Docket Number | No. 46509.,46509. |
| Citation | 148 P.3d 727 |
| Parties | Marlo THOMAS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
David M. Schieck, Special Public Defender, Clark County, for Appellant.
George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
Before the Court En Banc.
In this case, we review appellant Marlo Thomas's death sentence, returned by a jury after a second penalty hearing conducted pursuant to a remand by this court.
Appellant Marlo Thomas and his brother-in-law, 15-year-old Kenya Hall, were charged with two counts of first-degree murder with the use of a deadly weapon and other crimes. The charges resulted from their early-morning robbery of the Lone Star Steakhouse and the stabbing deaths of two employees who were present during the robbery, Matthew Gianakis and Carl Dixon. Thomas was a former employee of the restaurant. Vince Oddo, the kitchen manager, was also present during the robbery but escaped without injury. He called 911 after his escape, and when police responded to the scene, Oddo identified Thomas as one of the perpetrators. Thomas, Hall, and Thomas's wife Angela Love were arrested later that day.
After their arrest, Hall was interviewed by Nevada Highway Patrol Officer David Bailey. Hall confessed to his role in the crimes and implicated Thomas. He agreed to plead guilty to lesser charges in exchange for testifying against Thomas. He testified at Thomas's preliminary hearing but then refused to testify any further and sought to withdraw his guilty plea. His preliminary hearing testimony was read into the record at Thomas's trial. A jury convicted Thomas of two counts of first-degree murder with the use of a deadly weapon, conspiracy to commit murder and/or robbery, robbery with the use of a deadly weapon, burglary while in possession of a firearm, and first-degree kidnapping with the use of a deadly weapon. After a penalty hearing, the jury returned two verdicts of death for the murders. Thomas was also sentenced to consecutive terms totaling life in prison without the possibility of parole for the remaining convictions.
This court affirmed Thomas's conviction and sentence on direct appeal.1 Thomas then sought post-conviction relief in a petition for a writ of habeas corpus. On appeal from the denial of his petition, this court concluded that Thomas's trial counsel were ineffective for failing to object to an improper penalty phase jury instruction on the possibility of sentence commutation. Accordingly, this court remanded the case for a new penalty hearing.2
On remand, the district court ordered that the penalty hearing be bifurcated into an eligibility phase and a selection phase. The State alleged four aggravators: (a) Thomas had a prior conviction for a felony involving violence or the threat of violence;3 (b) he had a second such conviction;4 (c) the murder was committed to avoid or prevent a lawful arrest;5 and (d) Thomas was convicted in the instant proceeding of more than one murder.6
In the eligibility phase, the State read Hall's preliminary hearing testimony into the record. Other witnesses testified as to the facts of the crimes and the investigation. The State admitted the judgment of conviction for Thomas's 1990 conviction for attempted robbery, and the arresting officer from that incident testified that the victim told him Thomas and a cohort had robbed him at knifepoint but he did not know which assailant had the knife. The State also admitted a judgment of conviction for Thomas's 1996 conviction for battery with substantial bodily harm, and the victim testified that Thomas had beaten her with a gun and stomped on her chest. Officer Bailey testified about Hall's statements during questioning.
In mitigation, Thomas called family members who described his father's denial that Thomas was his son, his mother's beatings and harsh treatment of Thomas, his counseling of family members not to take his path, his scholastic and psychological problems as a child, Angela Love's bad influence on him, and his recent mellowing of temper and conversion to Christianity. Thomas called his mother to testify, and the State cross-examined her about statements she made about Thomas in 1990 which were contained in a juvenile court order certifying Thomas as an adult for that charge (exhibit 86). The State sought admission of exhibit 86 but was refused. After deliberating on death eligibility, the jury found all four aggravators. The jurors found seven mitigators, in that Thomas had: (1) accepted responsibility for the crimes; (2) "cooperated with the investigation but diverted the truth"; (3) demonstrated remorse; (4) counseled others against criminal acts; (5) suffered learning and emotional disabilities; (6) found religion; and (7) been denied by his father. The jurors determined that the aggravators outweighed the mitigators, and the hearing proceeded to the selection phase.
At the selection phase, the State called Patricia Smith, a Division of Parole and Probation records supervisor, who authenticated a set of 25 juvenile court petitions charging 11- to 17-year-old Thomas with crimes including vandalism, car theft, battery, and robbery (exhibit 85). Smith also authenticated exhibit 86, the juvenile court order listing Thomas's entire juvenile history and certifying 17-year-old Thomas as an adult in the 1990 robbery case, in which Thomas eventually pleaded guilty to attempted robbery.
Another division employee, John Springgate, authenticated two presentence investigation reports prepared for Thomas's convictions in 1990 of attempted robbery and in 1996 of battery with substantial bodily harm. Two victims of Thomas's prior crimes testified about those incidents. The State called ten corrections officers to testify about Thomas's behavior while in prison. Some of the officers authenticated prison discipline documents which included statements of other people, and some of the officers authenticated documentary exhibits they had not authored or which pertained to incidents they were not involved in.
Finally, the fathers of Carl Dixon and Matthew Gianakis gave victim-impact testimony. Mr. Dixon referred to Thomas as "the lowest form of social sewage" and was immediately interrupted by an objection from Thomas's counsel. Without formally sustaining the objection, the district court advised Mr. Dixon to limit his testimony to the impact of his son's death on his family.
Thomas called five fellow inmates. They collectively testified that Thomas avoided problems in prison, counseled others to avoid problems, and gave them good advice. One testified that verbal abuse is mutual between inmates and prison staff and that some staff provoke disciplinary infractions. Thomas also called the warden of his present institution, who testified that Thomas was always respectful and polite to him and that inmates can mellow with time and maturity. Thomas's final witness was his mother. Thomas gave a statement in allocution, in which he expressed remorse and asked for forgiveness for "[stealing] two precious lives." After deliberations, the jury returned two verdicts of death. Thomas now appeals.
Application of Crawford v. Washington and the Confrontation Clause to the eligibility phase of a bifurcated capital penalty hearing
Thomas argues that the district court violated his right to confrontation7 as interpreted in Crawford v. Washington8 during the eligibility phase by allowing Officer Bailey to testify about Hall's statements during questioning and by admitting the transcript of the questioning. This claim lacks merit. We held in Summers v. State9 that Crawford and the Confrontation Clause do not apply during a capital penalty hearing.
Admission of "other matter" evidence at the eligibility phase
Thomas also argues that the district court erred by allowing the State to present "other matter" evidence during the eligibility phase.
As we stated in Hollaway v. State, there are three proper purposes for which the State may introduce evidence at a capital penalty hearing: "to prove an enumerated aggravator, to rebut specific mitigating evidence, or to aid the jury in determining the appropriate sentence after any enumerated aggravating circumstances have been weighed against any mitigating circumstances."10 Evidence submitted for the third purpose is what we mean by "other matter" evidence, and it is "not admissible for use by the jury in determining the existence of aggravating circumstances or in weighing them against mitigating circumstances."11 As we indicated in Hollaway, evidence presented to "rebut specific mitigating evidence" is not "other matter" evidence, and it is permissible during the eligibility phase. If the defendant presents evidence relating to his character, childhood, mental impairments, etc., the State is entitled to rebut that evidence. However, Hollaway requires that the rebuttal evidence be targeted toward specific mitigation evidence; if it is not, it is not true rebuttal and is instead "other matter" evidence which the State can only present during the selection phase. Thomas's case is illustrative.
In mitigation during the eligibility phase, Thomas called his mother to testify. She testified that Thomas's childhood was "good" until she had a baby, at which point she stopped paying much attention to Thomas. In grade school, Thomas was angry and began to act out and get in fights, but when the school told her that Thomas needed help she denied it and argued with the school because she did not want to believe that Thomas was troubled. When Thomas was in high school, his behavior escalated into trouble with the law, and she would beat him for his misbehavior. After serving six years for attempted robbery, Thomas was released; he behaved well until he ...
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