Todd v. State
| Decision Date | 03 January 1997 |
| Docket Number | No. 26742,26742 |
| Citation | 113 Nev. 18,931 P.2d 721 |
| Parties | Ronald Robert TODD, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Appellant Ronald Todd was found guilty of robbery with use of a deadly weapon and kidnapping in the second degree. On appeal, Todd argued that reversible errors occurred at trial and that he should receive a new trial. We conclude that Todd's failure to object to those alleged errors at trial precludes appellate review of his claims. We further conclude that the district judge's consideration of improper evidence during the sentencing phase constituted reversible error, and therefore, Todd's sentence must be vacated and Todd must receive a new sentencing hearing before a different district judge.
At about 11:30 p.m. on April 29, 1994, Todd forced his way into a guest's room at the Eldorado Hotel and Casino in Reno, Nevada, and robbed and severely beat the guest. Earlier in the day, Todd had been swindled out of $400 by an individual known only as "Matt," who had approached Todd in the casino and offered to purchase marijuana for him. After learning that he had been swindled in the drug deal, Todd broke into his ex-son-in-law's house and took his ex-son-in-law's revolver. Todd returned to the hotel and forced his way into the guest's room, mistakenly believing that Matt was staying there. In fact, the guest had nothing to do with the drug deal scam; nevertheless, Todd beat the guest about the face with his fists and the pistol and took $80 from the guest's wallet.
Eldorado Hotel security arrived while Todd was still in the guest's room. Todd exited the room, waved the pistol at the security guards, and ordered them not to move. Despite Todd's threats, the security officers ran to a nearby elevator. Todd forced his way into the elevator and ordered all of the security officers out, except for one. After the elevator descended three floors, Todd ordered the security guard, at gunpoint, to exit the elevator and walk with him down a nearby flight of stairs. Another security guard was waiting in the stairwell, a struggle ensued, and Todd eventually was subdued and taken into custody.
Following a jury trial, Todd was convicted of robbery with the use of a firearm and kidnapping in the second degree with the use of a firearm. On January 20, 1995, the district court sentenced Todd to (1) twelve years in the Nevada State Prison for the robbery conviction plus a consecutive twelve year enhancement for using a firearm and (2) a fifteen year term for the kidnapping conviction plus a consecutive fifteen year sentence enhancement for using a firearm, to be served concurrently with the sentence imposed for the robbery.
Todd's failure to object to alleged errors at trial precludes appellate review of his claims
On appeal, Todd contends (1) that the State's expert witness made improper comments regarding Todd's guilt and whether voluntary intoxication is a legally permissible defense, (2) that the district court erred in admitting evidence of uncharged crimes, and (3) that the prosecutor made improper remarks to the jury during closing argument.
Part of Todd's theory of the case at trial was that he was too intoxicated at the time of the incident to form the intent necessary to commit the crimes with which he was charged. In anticipation of this defense, the State presented, during its case-in-chief, the expert testimony of a psychiatrist. In this appeal, Todd has raised several potentially meritorious challenges to the admissibility of the expert's testimony.
Todd concedes that his counsel failed to make any objections to the expert's testimony at trial. Nevertheless, Todd contends that the errors complained of are patently prejudicial and should be considered by this court in spite of his failure to make a proper objection at trial. See, e.g., Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 234-35 (1986) (). In response, the State argues that this is not a case in which we should exercise our discretion to review improperly preserved assignments of error. We agree.
In deciding whether to review improperly preserved objections to the trial court's proceedings, this court must balance several competing interests. On the one hand, this court must defend both the defendant's interest in due process and the public's faith in the ability of the judicial system to protect the innocent. On the other hand, this court must also defend the process itself by encouraging litigation of all relevant issues at trial and discouraging defense counsel from remaining silent in the face of trial court errors or misconduct, for tactical reasons, in order to get a "second bite at the apple" if a verdict is returned against their clients.
In the present case, where the evidence of guilt is substantial, the alleged errors are unlikely to have affected the verdict, and the failure to object is unexcused, we conclude that these competing interests are best served by adhering to the general rule that errors not properly objected to at trial are waived. We have thoroughly reviewed Todd's additional contentions and conclude that they are either without merit or they charge errors that are harmless in light of the overwhelming evidence of guilt in this case. See NRS 178.598 (); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Finding no reversible error, we affirm the judgment of the district court.
The district judge's consideration of improper evidence at the sentencing phase mandates that Todd receive a new sentencing hearing
We conclude that Todd's sentence must be vacated and that Todd is entitled to a new sentencing hearing based on the fact that the district judge considered highly improper evidence during the sentencing phase of the trial.
While reviewing the record during the evaluation of this appeal, this court discovered in the confidential envelope containing Todd's parole and probation report, which had originally been sealed and sent to the district judge by the Department of Parole and Probation, a cover letter authored by Samuel T. Bull, Esq. (Bull), a private attorney not associated with these proceedings, and attached to the cover letter were five pages of handwritten notes authored by Todd. 1 The letter and attached notes were sent to and received by the district judge who heard this case. In the letter, Bull explained that while he was in the county jail visiting a client, Todd, who was incarcerated in the same facility, asked to speak to him regarding a possible civil lawsuit against the Eldorado Casino for police brutality. Bull wrote that he spoke with Todd because he "never turned anybody down." It is obvious that Todd wanted to speak to Bull because he was a lawyer. Because it was 10:30 p.m. when he and Todd met, Bull asked Todd to write down what had happened at the Eldorado Hotel, leaving nothing out, and to give this written account to him later, presumably the next day. At some point, Todd delivered to Bull his handwritten account of the events that occurred at the Eldorado Hotel.
Subsequent to reading Todd's account of the events, Bull drafted a cover letter, attached Todd's handwritten notes, and sent the package to the district judge who was hearing Todd's case. The cover letter stated in pertinent part:
After reading [Todd's handwritten notes], I would feel that I had abdicated from moral obligation unless I gave [them] to you, for whatever use you may make of [them]. I know this guy is coming up in your court for sentencing and maybe these notes may make a difference.
To my mind, the guy is obviously guilty of an assault with a deadly weapon, even though he was obviously high as hell on something.
Furthermore, Steve, I've known these conmen [sic] all my life and the reference to a room on the 20th floor where the stash is, takes me back 50 years. I think that's the oldest gag there is, and this crazy young guy bit on it.
If I were the judge, I'd give this ass 10 years for stupidity, and 10 years for assault. But of course, maybe he's lying....
Nothing in the file indicates that the district judge did not read the letter and the notes, and the fact that the letter was located in the confidential envelope which was to be opened only by the district judge is a strong indication that the district judge read the letter and the notes prior to sentencing Todd. Furthermore, the district judge never informed the parties that he had received and read Bull's letter and Todd's attached notes.
Todd did not...
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