Ybarra v. State

• Decision Date: 03 March 2011
• Docket Number: No. 52167.,52167.
• Citation: 127 Nev. Adv. Op. 4,247 P.3d 269
• Parties: Robert YBARRA, Jr., Appellant,v.The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

247 P.3d 269

127 Nev. Adv. Op. 4

Robert YBARRA, Jr., Appellant,

v.The STATE of Nevada, Respondent.

No. 52167.

Supreme Court of Nevada.

March 3, 2011.

Franny A. Forsman, Federal Public Defender, and Michael Pescetta, Assistant Federal Public Defender, Las Vegas, for Appellant.Catherine Cortez Masto, Attorney General, Carson City; Richard W. Sears, District Attorney, White Pine County, for Respondent.Before the Court En Banc.

OPINION

By the Court, PARRAGUIRRE, J.:

A jury sentenced appellant Robert Ybarra, Jr., to death in 1981 for the murder of 16–year–old Nancy Griffith. Two decades later, the United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that the Eighth Amendment's ban on cruel and unusual punishment precludes the execution of mentally retarded persons. In compliance with Atkins, the Nevada Legislature adopted a statutory provision to address claims of mental retardation involving defendants who, like Ybarra, were sentenced to death before the decision in Atkins. NRS 175.554(5). Ybarra sought relief under that statute, asking the district court to set aside his death sentence on the ground that he is mentally retarded. In this appeal from the district court's order denying relief, we address two issues.

First, we consider whether the denial of Ybarra's motion to disqualify the post-conviction district court judge based on implied bias violated state and federal guarantees of due process. We conclude that it did not because neither the judge's prior legal representation of the victim's family on matters unrelated to the murder nor the case's notoriety in the judge's community would cause an objective person reasonably to question the judge's impartiality.

Second, we consider whether the district court erred in concluding that Ybarra had not demonstrated by a preponderance of the evidence that he was mentally retarded. NRS 174.098(7) defines “mentally retarded” as “significant subaverage general intellectual functioning which exists concurrently with deficits in adaptive behavior and manifested during the developmental period.” As matters of first impression, we address the three components of the mental retardation definition and, in particular, hold that the “developmental period” referenced in the statute includes the period before a person reaches 18 years of age. Because Ybarra failed to produce sufficient evidence of subaverage intellectual functioning and adaptive behavior deficits before he reached 18 years of age, the district court did not err in concluding that Ybarra had not demonstrated that he was mentally retarded and denying the motion to strike the death penalty.

FACTS

On the evening of September 28, 1979, 16–year–old Nancy Griffith and a girlfriend met 26–year–old Robert Ybarra, Jr., in Ely, Nevada. Ybarra drove the girls around town but eventually dropped off Griffith's girlfriend at her sister's home. Although the two girls arranged to meet later that evening, the girlfriend never saw Griffith again after leaving her with Ybarra. When Griffith was found the next day, she was barely alive. Ybarra had beaten and raped her, set her ablaze with gasoline, and left her to die in the desert outside of Ely. Suffering from burns that seared her respiratory passages and charred 80 percent of her body, Griffith died shortly thereafter.

A jury found Ybarra guilty of first-degree murder, first-degree kidnapping, battery with intent to commit sexual assault, and sexual assault. And after finding four circumstances aggravated the murder and no mitigating circumstances sufficient to outweigh them, the jury imposed death for the first-degree murder and consecutive terms of life in prison without the possibility of parole for the remaining offenses. We affirmed the judgment of conviction and death sentence. Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984).

Over the years, Ybarra filed three state post-conviction petitions, which were denied in the district court. This court upheld the district court decisions in all three instances. Ybarra v. State, 103 Nev. 8, 731 P.2d 353 (1987); Ybarra v. Director, Docket No. 19705, 105 Nev. 1054, 810 P.2d 347 (Order Dismissing Appeal, June 29, 1989); Ybarra v. Warden, Docket No. 32762, 115 Nev. 606, 24 P.3d 304 (Order Dismissing Appeal, July 6, 1999).

Ybarra raised the issue of mental retardation in his fourth petition, which he filed on March 6, 2003. In that petition, Ybarra contended that he was incompetent to be executed due to his mental retardation. The district court dismissed the petition, concluding that it was procedurally barred. This court disagreed as to the mental-retardation claim and remanded that issue to the district court for appropriate proceedings under NRS 175.554(5). Ybarra v. Warden, Docket No. 43981, 121 Nev. 1186, 152 P.3d 820 (Order Affirming in Part, Reversing in Part, and Remanding, November 28, 2005). On remand, Ybarra filed a motion under that statute. The district court conducted a two-day hearing on the motion at which Ybarra presented the testimony of two expert witnesses, the State presented the testimony of an expert witness, and the court considered exhibits totaling more than 3,000 pages. The district court determined that Ybarra had failed to meet his burden of proving mental retardation that began during the developmental period. Based on that failure, the district court denied the motion in a detailed 46–page written order. This appeal followed.

DISCUSSION

Judicial bias

The Honorable Steve Dobrescu presided over the post-conviction proceedings at issue in this appeal. Judge Dobrescu disclosed below that when he was an attorney in private practice, he represented Griffith's sister in an adoption proceeding in 1996 and prepared wills for Griffith's parents in 1998. Based primarily on that prior professional relationship, Ybarra filed a motion to disqualify Judge Dobrescu for bias. Another district court judge heard and denied the motion. See NRS 1.235(5). Ybarra challenges that decision, arguing that disqualification was warranted under state and federal constitutional due-process guarantees and Nevada Code of Judicial Conduct (NCJC) Canon 3E. We disagree.

The NCJC “provides substantive grounds for judicial disqualification.” PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 435, 894 P.2d 337, 340 (1995), overruled on other grounds by Towbin Dodge, LLC v. Dist. Ct., 121 Nev. 251, 112 P.3d 1063 (2005). Two provisions are relevant here.¹ First, NCJC Canon 2A provides that “[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Commentary accompanying that provision explains that “[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” Second, NCJC Canon 3E provides that “[a] judge shall disqualify himself ... in a proceeding in which the judge's impartiality might reasonably be questioned,” although none of the specific grounds for disqualification enumerated in that Canon apply here. Both provisions address the importance of impartiality.

“[T]he test for whether a judge's impartiality might reasonably be questioned is objective,” PETA, 111 Nev. at 436, 894 P.2d at 340, and presents “a question of law [such that] this court will exercise its independent judgment of the undisputed facts,” id. at 437, 894 P.2d at 341. Because a judge is presumed to be impartial, “the burden is on the party asserting the challenge to establish sufficient factual grounds warranting disqualification.” Goldman v. Bryan, 104 Nev. 644, 649, 764 P.2d 1296, 1299 (1988), abrogated on other grounds by Halverson v. Hardcastle, 123 Nev. 245, 266, 163 P.3d 428, 443 (2007); see PETA, 111 Nev. at 437, 894 P.2d at 341. Ultimately, we must decide “whether a reasonable person, knowing all the facts, would harbor reasonable doubts about [the judge's] impartiality.” PETA, 111 Nev. at 438, 894 P.2d at 341; see Suh v. Pierce, 630 F.3d 685, 691–92 (7th Cir.2011) (observing that due process requires fair trial in fair tribunal but that most judicial disqualification matters do not rise to constitutional level and that United States Supreme Court has never held that due process requires recusal based solely on appearance of bias).

The circumstances presented here, with a prior professional relationship between the trial judge and the victim's family, have not been addressed in many published decisions. An Illinois appellate court, however, has dealt with a similar situation. In People v. Booker, the defendant, who was charged with sexually assaulting his stepdaughter, argued on appeal that the trial judge should have been disqualified because the judge had represented the victim's natural father in divorce proceedings against the victim's mother around the time the assault occurred. 224 Ill.App.3d 542, 166 Ill.Dec. 252, 585 N.E.2d 1274, 1284 (1992). Recognizing that recusal is required “whenever the judge's impartiality could reasonably be questioned,” the appellate court could find no evidence in the record suggesting that the trial judge was biased against the defendant, id. at 1285, thus indicating that the prior relationship alone was not sufficient to question the judge's impartiality. See also Suh, 630 F.3d at 691–92, 2011 WL 135713, at *5–6 (rejecting claim of appearance of bias where trial judge had casual acquaintanceship with members of murder victim's family). See generally Jacobson v. Manfredi, 100 Nev. 226, 230, 679 P.2d 251, 254 (1984) (stating that “a judge, especially a judge in a small town, need not disqualify himself merely because he knows one of the parties”).

The same is true here. Although Ybarra asserts that a reasonable person would have doubts about. Judge Dobrescu's impartiality based...