130 Nev., Advance Opinion We
IN THE SUPREME COURT OF THE STATE OF NEVADA
JOHN MATTHIAS WATSON, III, No. 56721
Appellant,
vs.
THE STATE OF NEVADA,
FP PD
Respondent. OCT 02 2014
Appeal from a judgment of conviction in a death penalty case.
Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
Affirmed.
Philip J. Kohn, Public Defender, and Howard S. Brooks, Deputy Public
Defender, Clark County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Ryan J. MacDonald, Deputy District
Attorney, Clark County,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, GIBBONS, C.J.:
A jury found appellant John Watson, III, guilty of first-degree
kidnapping and first-degree murder of his wife and sentenced him to
death for the murder. In this appeal from the judgment of conviction, we
focus primarily on two of Watson's claims.
SUPREME COURT
OF
NEVADA
(0) 19474 er9 32,13
First, we consider whether the district court erred in
concluding that Watson failed to demonstrate a prima facie case of
discrimination for the purpose of a Batson' challenge to the State's use of
peremptory challenges to remove female veniremembers. We hold that
the district court did not clearly err in concluding that the State's use of
six of its nine peremptory challenges to remove female veniremembers did
not give rise to an inference of discrimination where the percentage of the
State's peremptory strikes used against female veniremembers was not so
disproportionate to the percentage of females in the venire as to give rise
to an inference of purposeful discrimination and the defense offered no
other circumstances supporting such an inference.
Second, we consider whether the district court plainly erred in
instructing the jury that mitigating circumstances are those
circumstances which "reduc[e] the degree of the Defendant's moral
culpability." Although mitigating circumstances are not limited to those
that reduce a defendant's moral culpability and jury instructions should
not convey otherwise, we are not convinced that there is a reasonable
likelihood that the jury understood the instruction in this case to limit the
scope of mitigating circumstances. Because we conclude that these and
Watson's other claims of error do not warrant relief, we affirm the
judgment of conviction.
FACTS AND PROCEDURAL HISTORY
Watson told family members that his wife, Evirelda "Evey"
Watson, went missing while they were on a trip to Las Vegas following her
1 Batson v. Kentucky, 476 U.S. 79 (1986).
SUPREME COURT
OF
NEVADA
2
01 1947A
birthday in July 2006. The ensuing investigation of Evey's reported
disappearance led to evidence that Watson planned the trip to Las Vegas
for the purpose of killing Evey and that he killed her in a Las Vegas hotel
room and disposed of her body. Evey's body was never found. Watson was
charged with first-degree kidnapping, first-degree murder with the use of
a deadly weapon, and robbery. The State filed a notice of intent to seek
the death penalty.
Guilt phase
In June 2006, Watson told a friend that he believed that Evey
was going to leave him and take half of his life savings. He said that he
was mad enough to kill her and claimed to know of places he could hide
her body where it would never be found.
On July 9, 2006, Watson threw a surprise birthday party for
Evey's 50th birthday. He had also planned a trip to Las Vegas as a
present for Evey. After the party, Watson drove to Las Vegas. He checked
into three rooms at two different hotels on July 10, 2006. At the Circus
Circus, he checked in under his own name, but he checked into the
Tuscany Suites under the name Joe Nunez. He had booked the room at
the Tuscany Suites weeks earlier. When making the reservation, he had
requested a specific room—N120—but that room was not available and he
was given room N114. At the time of his arrival, Watson also booked
another room (N118) at the Tuscany Suites for Sal Nunez and checked
into that room as well. Evey flew to Las Vegas the following day, July 11,
2006, to join Watson. The next day, Watson called his son, Michael, and
said that Evey had befriended a woman from Henderson and was missing.
Watson stayed in Las Vegas for three more days. On July 13,
2006, the day after he called Michael, Watson used his credit card to
SUPREME COURT
OF
NEVADA
3
(0) 1947A 4if44.•
purchase antifreeze at a Walmart. In a separate cash transaction, he
procured bleach, an incense holder, and incense. In a nearby home
improvement store, Watson paid cash for a band saw and the tools
necessary to assemble it. The next day, July 14, 2006, Watson requested a
move to room N120 at the Tuscany Suites—the room he had requested
when he made his reservation. After he moved to that room, he declined
maid service. He checked out of both hotels the next day.
Watson then contacted Evey's cousin, Mira Alvarez. During a
phone call, he told her that Evey walked away from him after an
argument and he did not know where she was. He said that he did not file
a missing person report because he believed that the police would suspect
him of foul play. He added that Evey had cut her finger in the back of his
Jeep while opening a flashlight package. Watson showed up at Alvarez's
home on July 16, 2006. At that time, he claimed that Evey had called and
told him that she was getting a ride with a woman she had met. Watson's
son, Juan, came to Alvarez's house while Watson was there. Watson told
Juan that he and Evey had a fight in front of the Four Queens casino. He
also showed Alvarez and Juan a letter allegedly written by Evey that he
had found in his car. The letter indicated that Evey went to Guatemala
because her sister, Rose, had been in an accident. Alvarez doubted the
letter's authenticity. According to her, Rose had not been in an accident,
and the letter did not appear to be written by Evey.
Juan reported Evey missing that day, and later in the day,
Watson was taken into custody. During the arrest, police confiscated
identification bearing Watson's photograph and the name "Joseph Ernest
Nunez, Jr." A search of Watson's Jeep Cherokee revealed several blood
spots in the vehicle and evidence that it had been cleaned with a bleach-
SUPREME COURT
OF
NEVADA
4
(0) 1947A
based cleanser. Blood found on the seatbelt, rear bumper, and cardboard
in the vehicle had a DNA profile that was consistent with Evey's DNA. In
addition, the Jeep contained bleach, cleaners, rubber gloves, a roll of
plastic tarp, paperwork from Circus Circus, a Circus Circus casino card,
and a card from Tuscany Suites. A search of Watson's home revealed a
box of trash bags, from which 17 bags were missing; a box cutter with
blood stains matching Evey's DNA, and a plastic bag with a blood stain
consistent with Evey's and Watson's DNA. Juan later found a gun in the
Watson home and turned it in to the police. Blood spots on the gun barrel
matched Evey's DNA.
Evidence was also located in room N120 at the Tuscany
Suites. In turning over the room, housekeeping staff had collected several
kitchen utensils and a Teflon pan, which they turned over to the police.
The bed sheets were also missing and the room contained trash from
stores, scissors, and incense. The scissors appeared to have brown stains
on them. In addition, staff noted an overwhelming odor. A housekeeper
at Tuscany Suites testified that the guest in room N120 had asked her for
a large trash bag on the day he left. Crime scene analysts discovered
Evey's DNA in blood found in several stains recovered from the bathroom
of room N120. Investigators also collected a piece of carpet from the room
that was stained with blood matching Evey's DNA. The blood stain on the
carpet had soaked through the carpet and padding and had stained the
cement subfloor.
Watson was released from custody in late July and was placed
under surveillance. Officers observed Watson drive around the mountain
roads in the area of Kern County, California. Near Lake Isabella, Watson
was observed turning onto a dirt road, stopping his car, and walking away
SUPREME COURT
OF
NEVADA
5
(0) I947A
from it. Officers searched this area, commonly known as the Fairview
dump, and discovered an area of the ground that appeared to have been
recently disturbed with plastic protruding from it. The plastic recovered
from the hole matched the type and tear pattern of a roll of plastic tarp
recovered from Watson's Jeep. DNA found on the plastic matched Evey's
DNA profile. Investigators who recovered the plastic bundle from the hole
noted that it smelled of decomposition.
On August 10, 2006, Watson was arrested at a Denny's in
Claremont, California. He was in possession of a wig, false mustache, and
glue. He also had a bus ticket to El Paso, Texas, a map of El Paso, cash,
traveler's checks, driver's licenses in his name and the name of Zach
Watson, a cell phone, and a list of phone numbers. Michael spoke to
Watson after his arrest, and Watson implied that if Michael put money in
Watson's jail fund then he would tell Michael of a general area where
Evey's body could be found.
After hearing this evidence, a jury found Watson guilty of
first-degree kidnapping and first-degree murder with the use of a deadly
weapon. The jury unanimously agreed that the murder was willful,
deliberate, and premeditated and occurred during the commission of the
kidnapping offense. The jury acquitted Watson of robbery.
Penalty phase
The State alleged three aggravating circumstances to support
a death sentence: (1) the murder occurred while Watson was engaged in
the crime of first-degree kidnapping with the use of a deadly weapon, (2)
the murder was committed for pecuniary value, and (3) the murder
involved torture or mutilation. In addition to the evidence introduced
SUPREME COURT
OF
NEVADA
6
(ED) 1947A 71S'9 17
during the guilt phase, the State introduced letters that Watson had
written to his children in which he stated that Evey had shot herself in the
hotel room and Watson, believing he would be held responsible for her
death, attempted to conceal her death. Watson admitted in the letters
that he cut up Evey's body, cooked parts of it, wrapped the pieces in
plastic, and disposed of them. He could not remember exactly where he
disposed of her body. The State also presented evidence of Watson's
violent character, including that he had been charged with threatening
President Nixon when he was 29 years old and had been charged with
extortion for taking his young child from his prior wife and demanding
money from her parents to return the child. In addition, the State
introduced evidence that Watson, when in an argument with his prior
wife, had boasted that he had raped and killed a hitchhiker but that an
investigation into that statement did not yield any evidence of a murder
and no charges were filed.
In mitigation, Watson introduced records from his admissions
to psychiatric hospitals and his adjudication of insanity in 1958, when he
was 18 years old. The records showed that Watson had been admitted to
Parkland Memorial Hospital on August 23, 1957. Doctors had tentatively
diagnosed him with schizophrenia and later diagnosed him with
sociopathic personality disorder. The records noted that Watson was
repeatedly referred to juvenile authoritieg for thefts, burglaries, and other
similar crimes between 1951 and 1955. He ran away from home in 1956
with the intent to commit suicide. In 1957, he exposed himself to a
secretary at a radio station and threatened her with a knife, which led to
the commitment at Parkland. After he was discharged from Parkland,
Watson committed another crime and was adjudicated insane on July 26,
SUPREME COURT
OF
NEVADA
7
(0) 1947A e
1958. Watson was admitted to Rusk State Hospital on October 31, 1958,
and discharged on November 1, 1960. He spent the last ten months of his
admission on furlough. Watson also spoke in allocution, expressing his
desire to be given the death penalty in accordance with his Muslim faith.
The jury found that the murder occurred while Watson was
engaged in the crime of first-degree kidnapping and that the murder
involved the torture and mutilation of the victim. None of the jurors found
any mitigating circumstances. The jury unanimously found that the
aggravating circumstances outweighed the mitigating circumstances and
imposed a sentence of death for Evey's murder.
DISCUSSION
Watson argues that numerous errors occurred during the guilt
and penalty phases of the trial. Although we address all of the claimed
errors, we focus on two in particular. As to the guilt phase, we focus on
his claim that the district court erred in rejecting his Batson challenge to
the State's use of three peremptory challenges. As to the penalty• phase,
we focus on his challenge to the instruction defining mitigating
circumstances.
Guilt-phase issues
Juror challenges
In exercising its nine peremptory challenges, the State struck
six women and three men and one of the State's peremptory challenges
was used to remove an African-American veniremember. Watson asserted
a Batson objection to the State's use of three peremptory challenges—two
against female veniremembers and the one against an African-American
veniremember The district court rejected his objections and Watson
SUPREME COURT
OF
NEVADA
8
(0) 1947A
claims on appeal that the district court erred as to one of the women and
the African-American veniremember. We first address the gender-based
Batson claim and then the race-based Batson claim.
In Batson v. Kentucky, the United States Supreme Court held
that the use of peremptory challenges "is subject to the commands of the
Equal Protection Clause," and therefore a party may not "challenge
potential jurors solely on account of their race." 476 U.S. 79, 89 (1986).
The Court later expanded the scope of Batson to prohibit striking jurors
solely on account of gender. J.E.B. v. Alabama ex rd. T.B., 511 U.S. 127,
140-43 (1994). We evaluate an equal-protection challenge to the exercise
of a peremptory challenge using the three-step analysis set forth by the
United States Supreme Court in Batson. Kaczmarek v. State, 120 Nev.
314, 332,
91 P.3d 16, 29 (2004); see also Purkett v. Elem,
514 U.S. 765, 767
(1995); J.E.B., 511 U.S. at 144-45. First, "the opponent of the peremptory
challenge must make out a prima facie case of discrimination." Ford v.
State, 122 Nev. 398, 403,
132 P.3d 574, 577 (2006). "Mhe production
burden then shifts to the proponent of the challenge to assert a neutral
explanation for the challenge." Id. Finally, "the trial court
must. . . decide whether the opponent of the challenge has proved
purposeful discrimination." Id.; see Johnson v. California, 545 U.S. 162,
171 (2005) (noting the "burden of persuasion 'rests with, and never shifts
from, the opponent of the strike" (quoting Purkett, 514 U.S. at 768)). This
court affords great deference to the district court's factual findings
regarding whether the proponent of a strike has acted with discriminatory
intent, Diomampo v. State, 124 Nev. 414, 422-23,
185 P.3d 1031, 1036-37
SUPREME COURT
OF
NEVADA
9
(0) 1947A 94114,9
(2008), and we will not reverse the district court's decision "unless clearly
erroneous." Kaczmarek, 120 Nev. at 334,
91 P.3d at 30. 2
The district court rejected Watson's gender-based Batson
objection after determining that Watson had failed to make out a prima
facie case of discrimination—the first step of the Batson analysis. To
establish a prima facie case under step one, the opponent of the strike
must show "that the totality of the relevant facts gives rise to an inference
of discriminatory purpose." Batson, 476 U.S. at 93-94. This standard is
not onerous and does not require the opponent of the strike to meet his or
her ultimate burden of proof under Batson. Johnson, 545 U.S. at 170
(rejecting California's "more likely than not" standard to measure the
sufficiency of a prima facie case). Rather, the opponent of the strike must
provide sufficient evidence to permit the trier of fact to "draw an inference
that discrimination has occurred." Id.; see also State v. Martinez, 42 P.3d
851, 857-58 (N.M. Ct. App. 2002). "An 'inference' is generally understood
to be a 'conclusion reached by considering other facts and deducing a
2There is a split of authority as to whether the finding of a prima
facie case of discrimination (step one of the Batson analysis) should be
reviewed deferentially. It appears that a majority of the federal circuit
courts of appeal, including the Ninth Circuit, have held that the "appellate
court should review a trial court's Batson prima facie determination
deferentially." Tolbert v. Page, 182 F.3d 677, 684-85 (9th Cir. 1999) (citing
decisions of the First, Third, Fourth, Fifth, Eighth, and Eleventh Circuits);
see also United States v. Martinez, 621 F.3d 101, 109-10 (2d Cir. 2010)
(deciding to apply abuse-of-discretion standard). But see Valdez v. People,
966 P.24 587, 590-91 (Colo. 1998) (discussing split and adopting mixed
standard of review that gives deference to factual findings but applies de
novo standard to whether opponent of strike established a prima facie case
as a matter of law). The parties have not asked us to reconsider the
standard of review used by this court.
SUPREME COURT
OF
NEVADA
10
(0) 1947A
logical consequence from them." Johnson, 545 U.S. at 168 n.4 (quoting
Black's Law Dictionary 781 (7th ed. 1999)).
Watson takes issue with the district court's determination
that he had not made a prima facie showing because he had not
demonstrated a pattern of strikes against women. He argues that he is
not required to show a pattern in order to make the prima facie showing
required under Batson's first step. Watson is correct—the opponent of a
strike is not required to establish a pattern of strikes against members of
the targeted group because the exclusion of even one veniremember based
on membership in a cognizable group is a constitutional violation. See
generally Batson, 476 U.S. at 96-97; United States v. Vasquez-Lopez,
22
F.3d 900, 902 (9th Cir. 1994). But Watson still must make the prima facie
showing required under Batson's first step.
Where there is no pattern of strikes against members of the
targeted group to give rise to an inference of discrimination, the opponent
of the strike must provide other evidence sufficient to permit an inference
of discrimination based on membership in the targeted group. Vasquez-Lopez, 22 F.3d at 902. In other words, the mere fact that the State used a
peremptory challenge to exclude a member of a cognizable group is not,
standing alone, sufficient to establish a prima facie case of discrimination
under Batson's first step; "something more" is required. State v. Rhone,
229 P.3d 752, 756 (Wash. 2010) (rejecting bright-line rule that peremptory
challenge used against member of racially cognizable group is sufficient to
establish a prima facie case under Batson because such a rule would be
inconsistent with Batson as it "would negate this first part of the analysis
and require a prosecutor to provide an explanation every time a member of
a racially cognizable group is peremptorily challenged" and would be
SUPREME COURT
OF
NEVADA
11
(0) 1947A 4 .4fr.
inconsistent with what Washington court and other courts have held); see
also Vasquez-Lopez, 22 F.3d at 902 ("The one fact supporting [the
defendant's] Batson claim was the juror's status as the sole Black
prospective juror. More was required."); People v. Howard, 175 P.3d 13, 25
n.10 (Cal. 2008) (noting that defendant is not required to show a pattern
in order to make out a prima facie showing of discrimination but that the
absence of a pattern is "significant" where the defense "provided no other
basis for inferring discriminatory intent"). Aside from a pattern of strikes
against members of a targeted group, circumstances that might support
an inference of discrimination include, but are not limited to, the
disproportionate effect of peremptory strikes, the nature of the proponent's
questions and statements during voir dire, disparate treatment of
members of the targeted group, and whether the case itself is sensitive to
bias. Batson, 476 U.S. at 96-97 (prosecutor's questions and statements
during voir dire); Tolbert v. Page, 182 F.3d 677, 683 (9th Cir. 1999)
("Whether or not 'all the relevant circumstances' raise an inference' of
discrimination will depend on factors such as the attitude and behavior of
the challenging attorney and the prospective jurors manifested during voir
dire."); Vasquez-Lopez, 22 F.3d at 902 (impact of government's challenge
on composition of jury and disparate treatment); Martinez, 42 P.3d at 855
(observing that courts may also consider whether a cognizable group has
been eliminated from the jury altogether, was substantially
underrepresented, or the case itself was sensitive to bias).
Watson suggests that the number of peremptory challenges
that the State used to remove women (6 of its 9 peremptory challenges)
constitutes a pattern of strikes that gives rise to an inference of gender-
SUPREME COURT
OF
NEVADA
12
(0) 194Th e
based discrimination and therefore establishes a prima facie case of
gender discrimination. He offers no supporting authority or analysis.
In a case involving a Batson claim based on gender
discrimination, this court observed that "[wffien a significant proportion of
peremptories exercised by the State is used to remove members of a
cognizable group, it tends to support a finding of purposeful
discrimination." Libby v. State, 113 Nev. 251, 255,
934 P.2d 220, 223
(1997). Although there is "no magic number of challenged jurors which
shifts the burden to the government to provide a neutral explanation for
its actions," Turner v. Marshall, 63 F.3d 807, 812 (9th Cir. 1995) (quoting
United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir. 1989)), overruled
in part on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999),
in Libby, this court concluded that the use of seven of nine peremptory
challenges to remove female veniremembers established a prima facie case
of discrimination based on gender. 113 Nev. at 255,
934 P.2d at 223.
There are some flaws with Libby's method of determining
whether there is a pattern of strikes against members of a targeted group
that gives rise to an inference of discrimination. Libby tallies the number
of peremptory challenges used against members of the targeted group to
determine whether there is a pattern of strikes against members of that
group. The first problem with that method is that "the raw number of
peremptory challenges used against targeted-group members is
meaningless without some point of reference." Kenneth J. Melilli, Batson
in Practice: What We Have Learned About Batson and Peremptory
Challenges, 71 Notre Dame L. Rev. 447, 476 (1996). Libby did provide one
point of reference—the total number of peremptory challenges used by the
State. That point of reference has little meaning, however, without
SUPREME COURT
OF
NEVADA
13
(0) 1947A (e,
additional information such as the number of targeted-group members
remaining in the venire after the for-cause challenges. Id. ("[Flive
peremptory challenges against targeted-group members might be
dispositive if only five such individuals had previously populated the
venire, but they might be entirely unremarkable if virtually the entire
venire had consisted of people in that group."). Although two of the cases
discussed in Libby included information about this additional point of
reference, United States v. De Gross, 913 F.2d 1417, 1425 (9th Cir. 1990)
(seven of defendant's eight strikes used against male jurors and when
defendant sought to use final peremptory strike to remove another male
juror there were only two male jurors in the jury box and one remaining in
the venire); Haynes v. State, 103 Nev. 309, 316,
739 P.2d 497, 502 (1987)
(strikes exercised against the only African Americans on the panel), this
court did not include that information with respect to Libby's venire. The
second problem with the method used in Libby is that "it does not
complete its task" because "it does not tell us how many such peremptory
challenges constitutes a prima facie case." Melilli, supra, at 476. That
flaw can lead to inconsistent decisions. Id.
The method used in Libby is just one of many "methods of
quantifying the results of the peremptory challenges used by the Batson
respondent." Id. at 471-72 (describing eight methods). While the method
used in Libby has some relevance and may be sufficient to make out a
prima facie showing of discrimination in some cases, there is another
method that is better suited to gender-based Batson claims given the
limited number of gender groups. A better approach would be to
"compare [J the percentage of the Batson respondent's peremptory
challenges used against targeted-group members with the percentage of
SUPREME COURT
OF
NEVADA
14
(0) I94Th
targeted-group members in the venire." Id. at 472. "The theory
underlying this method is that, if targeted-group membership is irrelevant
to the Batson respondent's use of peremptory challenges, then the portion
of [those] strikes used against the targeted-group members ought to
roughly parallel the portion of the venire which consists of members of
that targeted group." Id.; see also State v. Ouahman, 58 A.3d 638, 642
(N.H. 2012) (addressing Batson challenge involving the exclusion of men
and observing that where the panel against whom peremptory challenges
could be exercised consisted of more men than women, there is a "higher
likelihood that the State would strike male jurors"). We conclude that this
method is preferable to the one used in Libby.
Here, the State used six of its nine peremptory challenges to
remove women from the venire. This tally is close to, but not exactly the
same as, the tally that established a prima facie case in Libby (seven out
of nine peremptory challenges). When additional reference points are
considered, the number of peremptory challenges used against women
becomes less significant. The remaining venire, after all for-cause
challenges were resolved, had more women (18) than men (14). It
therefore would not be unexpected that neutrally exercised peremptory
challenges would affect women more than men. Women constituted 56
percent of the venire after the for-cause challenges and the State used 67
percent of its strikes to remove women. In other words, roughly five out of
nine members of the venire remaining after for-cause challenges were
women, and the State used six of its nine strikes on women. Although
there is some disparity between these percentages, they are roughly
parallel, and the disparity is not as great as that in other cases where
courts have found that a prima facie case had been established. See, e.g.,
SUPREME COURT
OF
NEVADA
15
(0) 1947A e
Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002) (prima facie case
established where at the time of the Batson objection, the prosecutor had
used 29 percent of his peremptory challenges to remove 57 percent of the
Hispanic veniremembers, who only constituted 12 percent of venire);
Turner v. Marshall, 63 F.3d 807, 813-14 (9th Cir. 1995) (prima facie case
established where prosecutor used 56 percent of peremptory challenges to
remove African-American veniremembers, who were only 30 percent of the
venire that had been passed for cause), overruled in part on other grounds
by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999). Thus, the State's use of
six of its nine peremptory challenges against women, standing alone, was
not sufficient to give rise to an inference of discrimination based on
gender. Cf. United States v. Martinez, 621 F.3d 101, 110-11 (2d Cir. 2010)
(concluding that defendant did not make prima facie showing where
government exercised first four strikes against men where more than half
of the prospective jurors were men at the start of the peremptory
challenge stage, and by the time the government exercised its third and
fourth challenges, the defense had removed seven women, making the
odds nearly two to one that a male juror would be stricken). Watson does
not identify any other evidence or circumstance that demonstrates a prima
facie case of discrimination. We therefore conclude that he has not
demonstrated that the district court clearly erred in determining that he
failed to make out a prima facie case of gender discrimination.
Next, Watson contends that the district court erred in
rejecting his Batson claim as to the State's use of a peremptory challenge
to exclude an African-American veniremember. He argues that the State's
removal of this veniremember violated Batson because its race-neutral
reason related to the veniremember's religion.
SUPREME COURT
OF
NEVADA
16
(0) 1947A C.
We need not address Watson's argument because the district
court correctly rejected Watson's Batson claim based on the first step of
the analysis. The district court agreed with the State that Watson had not
established a pattern of strikes against African Americans that would be
sufficient to make out a prima facie showing of discrimination. Despite
that determination, the district court asked the State to give its reasons
for removing the veniremember "out of an abundance of caution." The
district court's cautionary request that the State give its explanation for
the peremptory challenge was laudable, but where the district court has
"conclude[d] that a prima facie showing has not been made, the request for
and provision of explanations does not convert a [first-step Batson] case
into a [third-stepl case." People v. Howard, 175 P.3d 13, 26 (Cal. 2008)
(observing that although the court has "encouraged trial courts to ask
prosecutors to give explanations for contested peremptory challenges, even
in the absence of a prima facie showing," doing so does not make the first
step of the analysis moot where the trial court has concluded that a prima
facie showing has not been made). Because the district court asked the
State to provide its explanation for the peremptory challenge solely out of
an abundance of caution after the court had determined that Watson
failed to make a prima facie case, the first step of the Batson analysis was
not rendered moot. Id. at 25 ("When the trial court expressly states that it
does not believe a prima facie case has been made, and then invites the
prosecution to justify its challenges for the record on appeal, the question
whether a prima facie case has been made is not mooted, nor is a finding
of a prima facie showing implied."); cf. Ford v. State, 122 Nev. 398, 403,
132 P.3d 574, 577 (2006) (recognizing that first step of Batson analysis is
moot where State "gave its• reasons for its peremptory challenges before
SUPREME COURT
OF
NEVADA
17
(0) 1947A e
the district court determined whether the opponent of the challenge made
a prima facie showing of discrimination").
We agree with the district court's assessment of the first step.
This is not a case where the State used all of its strikes to remove African
Americans, used a percentage of its strikes to remove African Americans
that was significantly greater than the percentage of African Americans in
the venire, or used its strikes to remove all African Americans. Rather,
the State used one peremptory challenge to remove an African-American
veniremember, leaving three African Americans on the venire after the
State exercised its strikes. Accordingly, there was no pattern of strikes
against African Americans that would give rise to an inference of
discrimination. Although Watson was not required to establish a pattern,
he was required to establish facts or circumstances sufficient to support an
inference of discrimination based on race. He failed to do so below or on
appeal. Because Watson did not demonstrate an inference of
discrimination and therefore failed to meet the first step of the Batson
analysis, we conclude that the district court did not clearly err in denying
the Batson objection.
Sufficiency of the evidence
Watson contends that there was insufficient evidence adduced
at trial to convict him of first-degree murder and first-degree kidnapping.
He argues that the conclusion that he lured his wife to Las Vegas with the
purpose of killing her is based on speculation. He also asserts that, as
Evey's body was not recovered, the circumstantial evidence produced at
trial could only suggest, not conclusively prove, his involvement in Evey's
death. We disagree.
SUPREME COURT
OF
NEVADA
18
(0) !94Th
We review the evidence in the light most favorable to the
prosecution and determine whether any rational juror could have found
the elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); McNair v. State,
108 Nev. 53, 56,
825 P.2d 571,
573 (1992). In doing so, we do not reweigh the evidence or determine
credibility as those functions belong to the jury. McNair, 108 Nev. at 56,
825 P.2d at 573.
The jury heard the following evidence. Watson expressed a
desire to kill his wife in the month before her disappearance. He then
booked a hotel room in Las Vegas under an alias. The next month,
Watson and Evey traveled to Las Vegas as a purported gift for her
birthday. Watson drove to Las Vegas with a firearm, and Evey flew to the
city the next day. Before Evey arrived, Watson checked into hotel rooms
at Circus Circus under his name and Tuscany Suites under an alias. Evey
was not heard from again. After Evey's disappearance, Watson purchased
tools and cleaning supplies. Watson's rooms at the Tuscany Suites were
left in disarray: sheets missing, discarded packaging, used incense, and a
strong odor. Significant amounts of Evey's blood was found in the rooms
at Tuscany Suites, including a large stain that had soaked through to the
subfloor, and her blood was found in Watson's vehicle and on his gun.
Officers also followed Watson to an area where they later discovered
plastic that smelled of decomposition and was stained with Evey's blood.
In addition, Watson had fabricated a note from Evey to explain her
absence. Finally, he was apprehended in an apparent attempt to leave the
country: he was near a bus station with a ticket to a border town and was
in possession of another's identification as well as disguise elements. This
is substantial evidence from which a rational juror could reasonably infer
SUPREME COURT
OF
NEVADA
19
(0) 1947A CeZt9,
that: (1) Watson lured Evey to Las Vegas for the purpose of killing her and
therefore was guilty of first-degree kidnapping, NRS 200.310(1); and (2)
Watson unlawfully killed Evey with malice aforethought and the killing
was willful, deliberate, and premeditated and/or committed in the
perpetration of a kidnapping, and therefore Watson was guilty of first-degree murder, NRS 200.010(1); NRS 200.030(1)(a), (b). See Buchanan v.
State, 119 Nev. 201, 217,
69 P.3d 694, 705 (2003) (circumstantial evidence
alone may sustain a conviction). We therefore will not disturb the jury's
verdict. See Bolden v. State, 97 Nev. 71, 73,
624 P.2d 20, 20 (1981).
Motion for self-representation
Watson contends that the district court erred in denying his
motion to dismiss counsel and represent himself. He asserts that this was
structural error that warrants reversal of his convictions.
The Sixth Amendment of the United States Constitution,
made applicable to the states by the Fourteenth Amendment, guarantees
a defendant the right to self-representation. See Faretta 0. California, 422
U.S. 806, 819-20 (1975) ("The right to defend is given directly to the
accused; for it is he who suffers the consequences if the defense fails.").
We have protected a competent defendant's Sixth Amendment "right not
to have counsel forced upon him," even in instances where a defendant
facing the death penalty opts to present no defense or mitigating evidence.
Bishop v. State, 95 Nev. 511, 516-17,
597 P.2d 273, 276 (1979); see also
Colwell v. State, 112 Nev. 807, 811-12,
919 P.2d 403, 406 (1996). However,
the right to self-representation is not absolute because it necessitates the
relinquishment of another constitutional right—the right to counsel. See
Faretta, 422 U.S. at 835. Before allowing a defendant to waive his right to
counsel, a district court must conclude that a defendant is competent to
SUPREME COURT
OF
NEVADA
20
(0) 1947A
waive his right to counsel and that he has made a knowing and voluntary
waiver of this right. See id.; see also Godinez v. Moran, 509 U.S. 389, 400-
01 (1993). A district court nonetheless may deny a request for self-representation that is untimely, equivocal, or made for the purpose of
delay. O'Neill v. State, 123 Nev. 9, 17,
153 P.3d 38, 44 (2007) (quoting
Tanksley v. State, 113 Nev. 997, 1001,
946 P.2d 148, 150 (1997)).
Watson's request for self-representation was equivocal. He
had filed a motion to act as co-counsel and would not fully accept
responsibility for his legal representation; he assured the district court
that he could handle all aspects of his defense, except for the "details,"
deadlines, and ministerial tasks, and he indicated that he would ask for a
continuance if he found he could not represent himself. These conditions
on self-representation show that he never definitively acknowledged that
he wanted to act as his own sole legal representative. 3
Watson's motion also was untimely. "If it is clear that the
request comes early enough to allow the defendant to prepare for trial
without need for a continuance, the request should be deemed timely."
Lyons v. State, 106 Nev. 438, 446,
796 P.2d 210, 214 (1990), abrogated in
part on other grounds by Vanisi v. State, 117 Nev. 330, 341 & n.14,
22 P.3d
1164, 1172 & n.14 (2001). Watson filed his motion roughly one month
before the scheduled trial date, and Watson stated at the hearing that he
would need a continuance if the court granted his request. He asserts that
3 A defendant who has exercised his right to self-representation does
not have a right to standby or advisory counsel. See United States v.
Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994) (providing accused has no
constitutional right to advisory counsel); see also Wheby v. Warden, 95
Nev. 567, 568-69,
598 P.2d 1152, 1153 (1979), overruled on other grounds
by Keys v. State, 104 Nev. 736,
766 P.2d 270 (1988).
SUPREME COURT
OF
NEVADA
21
(0) I 947* e
because the subsequent appointment of substitute counsel necessitated a
continuance, his motion could not be untimely. However, the continuance
was not granted until after the district court denied his motion and
appointed new counsel. Considering the lateness of Watson's equivocal
request, the district court did not abuse its discretion in denying his
motion to represent himself See Harris v. State, 113 Nev. 799, 802,
942
P.2d 151, 153-54 (1997) (noting that this court gives deference to district
court's determination of whether a defendant understands the risks and
disadvantages of self-representation).
Penalty-phase issues
Mitigation instruction
Watson argues that the district court erred in giving the
following instruction regarding the definition of mitigation:
Mitigating circumstances are those factors
which, while they do not constitute• a legal
justification or excuse for the commission of the
offense in question, may be considered, in the
estimation of the jury, in fairness and mercy, as
extenuating or reducing the degree of the
Defendant's moral culpability.
You must consider any aspect of the
Defendant's character or record and any of the
circumstances of the offense that the Defendant
proffer [s] as a basis for a sentence less than death.
In balancing aggravating and mitigating
circumstances, it is not the mere number of
aggravating circumstances or mitigating
circumstances that controls.
He suggests that the jury would have understood the term "moral
culpability" in the first paragraph as a reference to his guilt or
blameworthiness and therefore would have ignored any mitigating
SUPREME COURT
OF
NEVADA
22
(0) 1947A e())
evidence unrelated to his moral culpability for committing the crime, such
as aspects of his character or record that were unrelated to the crime.
Watson did not object to this instruction at trial. "Generally, the failure to
clearly object on the record to a jury instruction precludes appellate
review" absent plain error affecting the defendant's substantial rights.
Green v. State, 119 Nev. 542, 545,
80 P.3d 93, 95 (2003).
The threshold question is whether the instruction is a correct
statement of the law. Our review is de novo. Nay v. State, 123 Nev. 326,
330,
167 P.3d 430, 433 (2007). We start that review by looking at the
scope of mitigating circumstances.
"The Eighth Amendment requires that the jury be able to
consider and give effect to all relevant mitigating evidence." Boyde v.
California, 494 U.S. 370, 377 (1990). Mitigation evidence includes "any
aspect of a defendant's character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than
death," Lockett v. Ohio, 438 U.S. 586, 604 (1978); see NRS 200.035;
accordingly, mitigation is not limited to evidence "which would tend to
support a legal excuse from criminal liability," Eddings v. Oklahoma, 455
U.S. 104, 113 (1982). See Browning v. State,
124 Nev. 517, 526,
188 P.3d
60, 67 (2008) (acknowledging that capital penalty hearing is focused on
defendant's character, record, and circumstances of offense); McKenna v.
State, 114 Nev. 1044, 1052,
968 P.2d 739, 744 (1998) (same).
The challenged instruction's first paragraph focuses on
circumstances that speak to the defendant's "moral culpability." The
original source of the language in that paragraph seems to• be the
definition of "mitigating circumstances" found in an early edition of
Black's Law. Dictionary: "Mitigating circumstances' are such as do not
SUPREME COURT
OF
NEVADA
23
(0) 1947A e.)
constitute a justification or excuse of the offense in question, but which, in
fairness and mercy, may be considered as extenuating or reducing the
degree of moral culpability." Black's Law Dictionary 780-81 (1st ed. 1891).
Although this definition appeared in a death penalty case as early as 1928,
see, e.g., People v. Leong Fook, 273 P. 779, 781 (Cal. 1928), its use in death
penalty cases in Nevada seems to be of more recent vintage. For example,
the language was used in an instruction defining mitigating circumstances
during a Clark County capital trial in 1994. 4 See Evans v. State, 112 Nev.
1172, 1185, 1203 n.31,
926 P.2d 265, 274, 285 n.31 (1996). 5 The defendant
in that case did not object to the instruction, and we observed that the
instruction "clarified any possible confusion" that the jury might have had
concerning the meaning of mitigating circumstances based on the initial
instruction that the jury received.° Id. at 1204,
926 P.2d at 286. This
4We are not aware of any instances of this definition being used in
Nevada capital trials before 1994, and the parties have not identified any
such instances.
5 1nEvans, the jury requested a "Black's Law or proper definition" of
mitigating circumstances during penalty-phase deliberations. 112 Nev. at
1203, 926 P.2d at 285. The district court responded by giving an
instruction that is similar to the first paragraph of the instruction
challenged in this case: "'Mitigating circumstances are things which do not
constitute a justification or excuse of the offense in question, but which in
fairness and mercy may be considered as extenuating or reducing the
degree of moral culpability." Id. at 1203 n.31,
926 P.2d at 285 n.31.
°The initial instruction given in Evans read, in part: "Any aspect of
the defendant's character or record and any of the circumstances of the
offense, including any desire you may have to extend mercy to the
defendant, which a jury believes is a basis for imposing sentence less than
death may be considered a mitigating factor." 112 Nev. at 1204, 926 P.2d
at 285 (emphasis omitted).
SUPREME COURT
OF
NEVADA
24
(0) 1947A (4e):D
court has not addressed whether the term "moral culpability" as used in
the instruction misstates the law as to the scope of mitigating
circumstances. 7
The term "culpability" is defined as "blameworthiness" or
"guilt" in both legal and ordinary usage. Black's Law Dictionary 435 (9th
ed. 2009); Webster's Third New International Dictionary 552 (2002). Thus
understood, "culpability" relates to the crime and whether the defendant is
blameworthy, see Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986) (using
"culpability" in reference to crime), which describes the inquiry at the guilt
phase of a capital trial. The inquiry at the penalty phase of a capital trial
is different—whether the defendant is worthy of a death sentence. Phyllis
L. Crocker, Concepts of Culpability and Deathworthiness: Differentiating
Between Guilt and Punishment in Death Penalty Cases, 66 Fordham L.
Rev. 21, 22-27 (1997). This is not to say that circumstances that extenuate
or reduce a defendant's moral culpability but are not sufficient to justify or
7 This court's opinion in Thomas v. Staterefers to an instruction that
includes the "moral culpability" language, but it does so in the court's
analysis of a prosecutorial-misconduct claim; the opinion does not address
the issue presented in this case. 122 Nev. 1361, 1370,
148 P.3d 727, 733
(2006).
The State suggests that the challenged instruction was approved by
the United States Supreme Court in Kansas v. Marsh, 548 U.S. 163
(2006). We disagree. The Marsh opinion merely mentioned the Kansas
instruction and did not specifically approve of it or address the issue
presented here. Id. at 176-77. Additionally, the instruction mentioned in
Marsh is phrased differently than the instruction used in this case; it
defined mitigating circumstances as any circumstances that "may be
considered as extenuating or reducing the degree of moral culpability or
blame or which justify a sentence of less than death." Id. at 176 (emphasis
added) (internal quotation marks omitted).
SUPREME COURT
OF
NEVADA
25
(0) 1947A e
excuse the offense for purposes of guilt are irrelevant to the jury's
determination whether to impose a sentence less than death. See Skipper,
476 U.S. at 13-14 ("Evidence concerning the degree of the de)endant's
participation in the crime, or his age and emotional history, thus bear
directly on the fundamental justice of imposing capital punishment."
(emphasis added)). In fact, several such circumstances are included as
statutory mitigating circumstances in Nevada. See NRS 200.035. 8 But
the defendant's moral culpability is not thefl sole consideration; therefore,
8 NRS 200.035 provides as follows:
Murder of the first degree may be mitigated by
any of the following circumstances, even though
the mitigating circumstance is not sufficient to
constitute a defense or reduce the degree of the
crime:
1. The defendant has no significant history
of prior criminal activity.
2. The murder was committed while the
defendant was under the influence of extreme
mental or emotional disturbance.
3. The victim was a participant in the
defendant's criminal conduct or consented to the
act.
4. The defendant was an accomplice in a
murder committed by another person and the
defendant's participation in the murder was
relatively minor.
5. The defendant acted under duress or
under the domination of another person.
6. The youth of the defendant at the time of
the crime.
7. Any other mitigating circumstance.
SUPREME COURT
OF
NEVADA
26
(0) 1947A ce4VD4
an instruction that limits mitigating circumstances to factors that
extenuate or reduce a defendant's moral culpability misstates the law.
The instruction given in this case is subject to two
interpretations. Read as a whole, the instruction requires the jury to
consider factors that extenuate or reduce the defendant's moral culpability
and any aspect of the defendant's character or record and any
circumstances of the offense. In particular, the breadth of possible
mitigation evidence is conveyed in the second paragraph of the
instruction: "You must consider any aspect of the Defendant's character or
record and any of the circumstances of the offense that the Defendant
proffer [s] as a basis for a sentence less than death." Alternatively, the
phrasing of the first paragraph, which refers to mitigating circumstances
as those factors that "extenuat[e] or reduc[e] the degree of the Defendant's
moral culpability," could be understood to limit the jury to consideration of
only those factors that are offense-related and therefore extenuate or
reduce the defendant's guilt or blameworthiness. Given these competing
interpretations, "the proper inquiry. . is whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way
that prevents the consideration of constitutionally relevant [mitigating]
evidence." Boyde v. California, 494 U.S. 370, 380 (1990). A "reasonable
likelihood" is more than a mere possibility that the jury misunderstood the
law, but a defendant "need not establish that the jury was more likely
than not to have been impermissibly inhibited by the instruction." Id.
We are not convinced that there is a reasonable likelihood that
the jury misunderstood the first paragraph of the instruction to preclude it
from considering any aspect of Watson's character or record as a
mitigating circumstance regardless of whether it reflected on his moral
SUPREME COURT
OF
NEVADA
27
(0) I947A 9410:144
'
culpability. First, the interpretation that would result in a
misunderstanding of the law is not a natural reading of the instruction as
a whole. Nothing in the language of the instruction would readily suggest
that the language in the first paragraph required the jury to ignore the
broad second paragraph. Second, it seems unlikely that a jury would read
the first paragraph as suggested by Watson when courts have used
"culpability" in the penalty context without expressing any concern that it
limits the jury to consideration of circumstances that are related to the
crime and the defendant's guilt. See, e.g., Abdul-Kabir v. Quarterman, 550
U.S. 233, 263-64 (2007) ("[B]efore a jury can undertake the grave task of
imposing a death sentence, it must be allowed to consider a defendant's
moral culpability and decide whether death is an appropriate punishment
for that individual in light of his personal history and characteristics and
the circumstances of the offense."); Penry v. Lynaugh, 492 U.S. 302, 319
(1989) ("Underlying Lockett and Eddings is the principle that punishment
should be directly related to the personal culpability of the criminal
defendant. If the sentencer is to make an individualized assessment of the
appropriateness of the death penalty, 'evidence about the defendant's
background and character is relevant. . . ." (quoting California v. Brown,
479 U.S. 538, 545 (1987) (O'Connor, J., concurring))), abrogated on other
grounds by Atkins v. Virginia, 536 U.S. 304 (2002). As the Supreme Court
has observed, "U]urors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that lawyers
might." Boyde, 494 U.S. at 380-81. Finally, although "arguments of
counsel generally carry less weight with a jury than do instructions from
the court," id. at 384, given the arguments of counsel during the penalty
phase that focused on background, character, and other circumstances
SUPREME COURT
OF
NEVADA
28
(0) 1907A e
unrelated to the crime, it is unlikely that the jury would have believed
that that evidence could not be considered. These reasons also suggest
that any possible error in the instruction is not "so unmistakable that it
reveals itself by a casual inspection of the record," Patterson v. State, 111
Nev. 1525, 1530,
907 P.2d 984, 987 (1995) (internal quotation marks
omitted); therefore, Watson has not demonstrated plain error. 9
Motion to continue
Watson argues that the district court erred in denying a
motion to continue. He asserts that the continuance was necessary to
permit him more time to prepare his case in mitigation because counsel
did not obtain records related to his previous psychiatric hospitalization
until the day that the jury returned its guilty verdicts.
The decision to deny a motion for a continuance is reviewed for
an abuse of discretion. Rose v. State, 123 Nev. 194, 206,
163 P.3d 408, 416
(2007). There was no such abuse in this case. The district court's decision
9We encourage district courts to revise the challenged instruction to
avoid the possibility of an erroneous interpretation. For example, the
following language could be used in place of the first and second
paragraphs:
A mitigating circumstance is any factor which you
believe is a basis for imposing a sentence less than
death. Such circumstances may include, but are
not limited to: any aspect of the defendant's
character, background, or record; any factor that
extenuates or reduces the degree of the
defendant's moral culpability, regardless of
whether it constitutes a legal justification or
excuse for the offense; any circumstances of the
offense; or any desire you may have to extend
mercy to the defendant.
SUPREME COURT
OF
NEVADA
29
Ill) 1947A 4DR,
did not leave the defense with inadequate time to prepare for the penalty
hearing, see Higgs v. State, 126 Nev. 1, 9,
222 P.3d 648, 653 (2010) ("This
court has held that generally, a denial of a motion to continue is an abuse
of discretion if it leaves the defense with inadequate time to prepare for
trial."); Watson's trial attorneys began representing him roughly one year
before his trial began, he had been represented by other attorneys over the
several years that the case had been pending before his trial counsel
became involved in the case, and Watson could have revealed the
information at issue to counsel had he chosen to do so. Watson also fails
to demonstrate that he was prejudiced by the denial of the continuance,
see Rose, 123 Nev. at 206,
163 P.3d at 416 ("[W]hen a defendant fails to
demonstrate that he was prejudiced by the denial of a continuance, the
district court's decision denying a continuance is not an abuse of
discretion."), where he had consistently maintained that his religious
beliefs mandated that he not pursue a case in mitigation, see Detrich v.
Ryan, 677 F.3d 958, 977 (9th Cir. 2012) (recognizing "a defendant's
informed wishes can justify failing to present mitigating evidence"
(emphasis omitted)), vacated in part on other grounds and remanded, 740
F.3d 1237 (9th Cir. 2013), cert. denied, 572 U.S. ,
134 S. Ct. 2662
(2014), counsel was able to use the records during the penalty hearing,
and the records indicated that Watson had been diagnosed and treated for
mental illness several decades before the instant crime, which involved a
carefully planned and executed murder. The district court did not abuse
its discretion.
Competency
Watson argues that• the district court erred in denying his
request for a competency evaluation following the guilt phase of the trial
SUPREME COURT
OF
NEVADA
30
(0) I94Th
because none of the prior evaluators had access to his extensive history of
mental illness. We disagree.
Roughly one year before trial, Watson was found competent to
stand trial. The record shows that he responded appropriately when
questioned by the court during pretrial proceedings and that he drafted
his own pleadings. In addition, Watson responded appropriately during
questioning by the court during the Farettalm canvas. The discovery of
decades-old psychiatric records and insinuation that stress from the guilty
verdict rendered him incompetent were insufficient to cast reasonable
doubt on his competency given that he did not exhibit any behavior during
the prior proceedings that called into doubt his ability to understand the
nature of the proceedings or assist counsel. See Scarbo v. Eighth Judicial
Dist. Court, 125 Nev. 118, 122,
206 P.3d 975, 977 (2009) (holding that a
defendant is competent to stand trial if he has the "ability to understand
the nature of the criminal charges and the nature and purpose of the court
proceedings, and by his or her ability to aid and assist his or her counsel in
the defense at any time during the proceedings with a reasonable degree
of rational understanding"). While Watson's decision to forgo the
presentation of mitigation evidence may seem irrational to some, that
decision was his alone, see Detrich, 677 F.3d at 977, and it was one that he
had consistently maintained throughout the proceedings. Nothing in the
record indicates that Watson did not understand the nature and purpose
of the penalty hearing or that he was unable to assist his counsel during
the proceeding. Because Watson failed to demonstrate reasonable doubt
ImFaretta v. California, 422 U.S. 806 (1975).
SUPREME COURT
OF
NEVADA
31
(0) 1041A
as to his competency to stand trial, see Olivares v. State, 124 Nev. 1142,
1147-48,
195 P.3d 864, 868 (2008); see also NRS 178.400(1) ("A person may
not be tried or adjudged to punishment for a public offense while
incompetent"), the district court did not abuse its discretion in denying
the request for further competency proceedings, see Olivares, 124 Nev. at
1147-48,
195 P.3d at 868.
Aggravating circumstances
Watson contends that there was insufficient evidence to
support the two aggravating circumstances found by the jury. We
disagree. There was sufficient evidence that the murder occurred in the
commission of a first-degree kidnapping. The evidence shows that Watson
inveigled Evey to travel to Las Vegas for the purpose of killing her. See
NRS 200.310(1). In particular, Watson had verbalized his desire to
murder Evey in order to protect his life savings; he then threw a surprise
birthday party for her, which was an unusual thing for him to do, and, as
part of the birthday celebration, planned a trip to Las Vegas for the
couple; he booked two hotel rooms, one under his own name and the other,
at a separate hotel, where Evey's blood was discovered, under an alias for
which he had false identification; and although Evey flew to Las Vegas,
Watson traveled separately with a firearm. As to the torture and
mutilation aggravating circumstance, the State introduced letters that
Watson had written to his children in which he admitted to dismembering
Evey and cooking parts of her body in an attempt to conceal her death.
This admission was corroborated by the pan and utensils recovered from
Watson's hotel room; evidence that Watson purchased a band saw, plastic
bags, and cleaners; and the large amount of Evey's blood that had soaked
through the carpet in the hotel room. This evidence was sufficient for the
SUPREME COURT
OF
NEVADA
32
(0) 1947A .rneta)
jury to conclude that the murder involved "mutilation beyond the act of
killing itself' that "cut off or permanently destroy[ed] a limb or essential
part of [Evey's] body." Smith v. State, 114 Nev. 33, 39,
953 P.2d 264, 267
(1998) (internal quotation marks omitted); Deutscher v. State, 95 Nev. 669,
677,
601 P.2d 407, 412-13 (1979). 11
Mandatory review
NRS 177.055(2) requires that this court review every death
sentence and consider whether; (1) sufficient evidence supports the
aggravating circumstances found; (2) the verdict was rendered under the
influence of passion, prejudice, or any other arbitrary factor; and (3) the
death sentence is excessive. First, as explained above, sufficient evidence
supported the two aggravating circumstances found. Second, nothing in
the record indicates that the jury reached its verdict under the influence of
passion, prejudice, or any arbitrary factor. And third, considering the
calculated nature in which Watson planned the murder and
dismemberment of his wife and the evidence in mitigation, we conclude
that Watson's death sentence was not excessive.
nWatson argues that the cumulative effect of the errors committed
during his trial warrant reversal of his conviction and sentence. "The
cumulative effect of errors may violate a defendant's constitutional right
to a fair trial even though errors are harmless individually." Hernandez v.
State, 118 Nev. 513, 535,
50 P.3d 1100, 1115 (2002). However, a
defendant is not entitled to a perfect trial, merely a fair one. Ennis v.
State, 91 Nev. 530, 533,
539 P.2d 114, 115 (1975). Because we have found
no error, there is nothing to cumulate.
SUPREME COURT
OF
NEVADA
33
10) 1947A AS44:-
Because review of this appeal reveals no errors that would
warrant a new trial or penalty hearing, we affirm the judgment of
conviction.
C.J.
We concur:
Pitt tilt !
, J.
Pickering
A 6-A gEts4;
Hardesty
J.
J.
Parraguirre
Douglas
SUPREME COURT
OF
NEVADA
34
(0) 1947A
CHERRY and SAITTA,. JJ., dissenting in part:
In our view, the district court plainly erred in defining
mitigating circumstances as those circumstances that reduce the
defendant's degree of moral culpability. See Green v. State, 119 Nev. 542,
545,
80 P.3d 93, 94-95 (2003) (reviewing unobjected-to jury instruction for
plain error affecting the defendant's substantial rights). The instruction is
not properly rooted in Nevada statutory authority to provide necessary
direction• to the jury. We further conclude that this error affected
Watson's substantial rights and we would reverse the judgment of
conviction and remand for a new sentencing hearing.
In 1972, the United States Supreme Court held that the death
penalty, as it had been applied, violated the Eighth and Fourteenth
Amendments of the United States Constitution because the procedures
employed to sentence defendants created "a substantial risk that the
punishment will be inflicted in an arbitrary and capricious manner."
Godfrey v. Georgia, 446 U.S. 420, 427 (1980); Anderson v. State,
90 Nev.
385,
528 P.2d 1023 (1974) (citing Furman v. Georgia,
408 U.S. 238 (1972)).
The nation's•hiatus from the death penalty was• short-lived. State
legislatures amended their statutes in an attempt to restore the
punishment to constitutionality and, by 1976, the United States Supreme
Court approved of the penalty schemes in Florida and Georgia. Gregg v.
Georgia, 428 U.S. 153, 198-207 (1976); Proffitt v. Florida,
428 U.S. 242,
253 (1976). To survive constitutional scrutiny, capital sentencing
procedures must "(1) rationally narrow the class of death-eligible
defendants; and (2) permit a jury to render a reasoned, individualized
SUPREME COURT
OF
NEVADA
(0) 1947.4 sCep).
sentencing determination based on a death-eligible defendant's record,
personal characteristics, and the circumstances of his crime." Kansas v.
Marsh, 548 U.S. 163, 173-74 (2006). The jury must be free to consider
"any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a
sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(plurality opinion). Our Legislature amended the capital punishment
scheme in 1977 to address the concerns of Furman and Gregg and limit
the jury's discretion in imposing death sentences. See Deutscher v. State,
95 Nev. 669, 676,
601 P.2d 407, 412 (1979). The statutes generally limit
the discretion afforded the jury, but "are constitutional because they
'provide for a consideration of any mitigating factor the defendant may
want to present." Id. at 676-77,
601 P.2d at 412 (quoting Bishop v. State,
95 Nev. 511, 517,
597 P.2d 273, 277 (1979)); see Gregg,
428 U.S. at 196-97.
Any instruction to the jury concerning the use of mitigation evidence must
be born of these statutes in order to guide the discretion of the jury in a
constitutional manner. But that was not the case here.
Instead, the moral culpability instruction given in this case
came from a dictionary, see Henry Campbell Black, Dictionary of Law 780-
81 (1st ed. 1891) ("Mitigation. . . . 'Mitigating circumstances' are such as
do not constitute a justification or excuse of the offense in question, but
which in fairness and mercy, may be considered as extenuating or
reducing the degree of moral culpability."), and had originated from an
action for slander, Black, Dictionary of Law 785 (2d ed. 1910) (citing
Heaton v. Wright, 10 How. Pr. 79, 82 (N.Y. 1854)). Despite its origin in
SUPREME COURT
OF
NEVADA
2
(0) 1947A
civil law, courts adopted the instruction for their most serious cases as
early as 1928. See generally People v. Leong Fook, 273 P. 779, 781 (Cal.
1928); Commonwealth v. Williams, 160 A. 602, 609 (Pa. 1932). Many
jurisdictions have modified the language to reflect a definition of
mitigating circumstances that extends beyond moral culpability to any
circumstances that warrant a sentence less than death. See, e.g., Kansas
v. Marsh, 548 U.S. 163, 176 (2006) (Kansas instructions use "reducing the
degree of moral culpability or blame or which justify a sentence of less than
death" (internal quotations omitted) (emphasis added)); Buchanan v.
Angelone, 522 U.S. 269, 285 (1998) (Virginia instructions use "reduce the
degree of moral culpability and punishment" (internal quotations omitted)
(emphasis added)); State v. Breton, 663 A.2d 1026, 1052 & n.46 (Conn.
1995) (Connecticut instructions use "reduce the degree of his culpability or
blame for the offense or to otherwise constitute a basis for a sentence less
than death" (internal quotations omitted) (emphasis added)); State v.
Brett, 892 P.2d 29, 61 (Wash. 1995) (Washington instructions use
"reducing the degree of moral culpability or which justifies a sentence of
less than death" (internal quotations omitted) (emphasis omitted)
(emphasis added)); State v. Moose, 313 S.E.2d 507, 518 (N.C. 1984) (North
Carolina's definition includes, "reducing the moral culpability of killing or
making it less deserving of the extreme punishment than other first-degree
murders" (emphasis and internal quotation omitted)); see also State v.
Holloway, 527 N.E.2d 831, 835 (Ohio 1988) ("[Mhtigating factors under
[Ohio law] are not related to a defendant's culpability but, rather, are
those factors that are relevant to the issue of whether an
SUPREME COURT
OF
NEVADA
3
(0) 1947A ep(D
offender. .. should be sentenced to death."). Although we have referenced
a similar instruction in three published cases, this court has never
specifically addressed the "moral culpability" language in the instruction.
See Nunnery v. State, 127 Nev. „ 263 P.3d 235, 257 (2011)
(explaining that instruction grants jurors the discretion to find mitigating
circumstances); Thomas v. State, 122 Nev. 1361, 1370,
148 P.3d 727, 733
(2006) (explaining that State's improper causation argument was not
prejudicial because instruction does not require causation between
mitigating factors and the crime); Evans v. State, 112 Nev. 1172, 1204,
926
P.2d 265, 285-86 (1996) (referencing instruction but citing a different
definition of mitigating circumstances with approval).
It is no small task to ask a jury to decide whether to impose a
death sentence. Given the weight of their decision, jurors are entitled to
instructions that clarify the law authorizing the penalty to guide their
discretion in imposing the punishment. In light of this concern, the
instruction's history, United States Supreme Court precedent, and
statutory amendments to the death penalty procedure, the district court
plainly erred in giving the instruction. The instruction is simply
inconsistent with the statutory language defining mitigating
circumstances. It defined mitigating circumstances as factors which
"extenuat[e] or reduc[e] the degree of the Defendant's moral culpability."
Admittedly, most of the enumerated factors in the statute relate to the
facts of the crime and, therefore, the defendant's moral culpability. See
NRS 200.035. But the statute is broader; its definition of mitigating
circumstances• includes facts concerning the defendant or any other
SUPREME COURT
OF
NEVADA
4
(0) 1947A
circumstance that the jury might find mitigating. See NRS 200.035(1), (7);
see also Eddings v. Oklahoma, 455 U.S. 104, 113 (1982) (noting mitigation
evidence not limited to evidence "which would tend to support a legal
excuse from criminal liability"); Lockett v. Ohio, 438 U.S. 586, 604 (1978)
(defining mitigation evidence as "any aspect of a defendant's character or
record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death"). Moreover, unlike the
given instruction, the statute includes specific, concrete examples that are
necessary to guide the jury in its deliberations.
The given instruction likely confused the jury and improperly
limited its consideration of mitigating evidence. See Boyde v. California,
494 U.S. 370, 377-78 (1990) ("The Eighth Amendment requires that the
jury be able to consider and give effect to all relevant mitigating
evidence."); see also Browning v. State, 124 Nev. 517, 526,
188 P.3d 60, 67
(2008) (acknowledging that capital penalty hearing is focused on
defendant's character, record, and circumstances of offense); McKenna v.
State, 114 Nev. 1044, 1052,
968 P.2d 739, 744 (1998) (same). The majority
acknowledges that "culpability" relates to whether the defendant is
blameworthy and that the first paragraph of the instruction could be
viewed as restricting the jury's consideration of mitigation evidence.
However, it concludes that the second paragraph was sufficient to direct
the jury to consider all evidence relevant to mitigating circumstances. We
do not agree with this conclusion. The first paragraph clearly
characterized mitigating evidence as only offense-related evidence. The
second paragraph directs the jury to consider aspects of the defendant's
SUPREME COURT
OF
NEVADA
5
(0) 1947A 40).
character or record, but does not brand that information as mitigating
evidence. Thus, the facts about the defendant's character stand apart
from the mitigation evidence in the minds of the jurors and it is likely that
the jury would not consider those facts in weighing the aggravating and
mitigating circumstances. Pursuant to the given instruction, the jury
could readily and incorrectly assume the facts related to the defendant's
character or record were mere "other matter" evidence to be considered
after the weighing process was complete. See Skipper v. South Carolina,
476 U.S. 1, 5 (1986) (explaining that evidence unrelated to defendant's
culpability is still mitigating because it "might serve 'as a basis for a
sentence less than death." (quoting Lockett, 438 U.S. at 604)); People v.
Lanphear, 680 P.2d 1081, 1083 (Cal. 1984) (en banc) (finding
constitutional error when "no sympathy" instruction was combined with
instruction suggesting that only circumstances that lessen moral
culpability are to be considered as mitigating circumstances); see also
Nevius v. State, 101 Nev. 238, 250-51,
699 P.2d 1053, 1061 (1985) (citing
Lanphear and implying that an instruction would be erroneous if it
suggested that only circumstances that lessen moral culpability should be
considered as mitigation). The majority contends that because the phrase
"moral culpability" has been used so broadly, albeit incorrectly, in the
past, it was unlikely the jury felt limited in what evidence it could
consider. We believe the jury's sentencing decision is too important to
accept refuge in ambiguity. It is our view that the jury likely applied the
instruction in a way that prevented it from considering relevant evidence
and that the district court plainly erred in instructing the jury using
SUPREME COURT
OF
NEVADA
6
(0) 1947A ave.
language that reasoned jurists and attorneys have used with such
imprecision. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 263-64
(2007) ("[Blefore a jury can undertake the grave task of imposing a death
sentence, it must be allowed to consider a defendant's moral culpability
and decide whether death is an appropriate punishment for that
individual in light of his personal history and characteristics and the
circumstances of the offense."); Penry v. Lynaugh, 492 U.S. 302, 319 (1989)
("Underlying Lockett and Eddings is the principle that punishment should
be directly related to the personal culpability of the criminal defendant. If
the sentencer is to make an individualized assessment of the
appropriateness of the death penalty, 'evidence about the defendant's
background and character is relevant. ." (quoting California v. Brown,
479 U.S. 538, 545 (1987) (O'Connor, J., concurring))), abrogated on other
grounds by Atkins v. Virginia, 536 U.S. 304 (2002). We should not expect
jurors "to be legal experts nor make legal inferences with respect to the
meaning of the law; rather, they should be provided with applicable legal
principles by accurate, clear, and complete instructions specifically
tailored to the facts and circumstances of the case." Crawford v. State, 121
Nev. 744, 754,
121 P.3d 582, 588 (2005).
We further conclude that the erroneous instruction affected
Watson's substantial rights. See MRS 178.602; Green v. State, 119 Nev.
542, 545,
80 P.3d 93, 95 (2003). Watson presented documentation showing
that he had suffered from mental illness and had received psychiatric
treatment. The jury, however, found no mitigating circumstances present.
The majority contends that this could suggest that the mitigation evidence
SUPREME COURT
OF
NEVADA
7
(0) 19)17A
was not sufficiently compelling; however, considering the breadth of time
between Watson's diagnosis and the crime, the jury most likely did not
consider it to be evidence in mitigation as defined by the given
instructions. Therefore, we would conclude that there was "a reasonable
likelihood that the jury. . . applied the challenged instruction in a way
that prevent[ed] the consideration of constitutionally relevant evidence."
Boyde, 494 U.S. at 380; see Ayers v. Belmontes,
549 U.S. 7, 16-17 (2006).
J.
J.
Saitta
SUPREME COURT
OF
NEVADA
8
(Oj 1947A
