Keck (William) v. State (Death Penalty) ( 2015 )

 to get out of bed and investigate. Within moments of getting up, they
heard "what sounded like power tools." Lestelle ran out of the bedroom
with Reyes following. Seconds later, Lestelle ran back toward the
bedroom, telling Reyes to call 911 while he searched his backpack for his
gun. As she was dialing 911, they saw a chainsaw coming through the
apartment door. The chainsaw stopped. Suddenly, Lestelle turned
around, told Reyes, "They are here." Bullets pierced through the front
door, and Lestelle pushed Reyes back in to the bedroom. As she fell
backward in to the bedroom, she felt "pressure all over [her] body" and
watched Lestelle fall to the left of her. She felt herself being shot
numerous times. Nearly unconscious and in pain and bleeding, she heard
the 911 dispatcher calling out over the phone and shortly thereafter police
officers found her. Reyes suffered eight gunshot wounds. She survived,
but her unborn child did not.' Lestelle was shot multiple times and died
as the result of a gunshot wound to his chest.
When asked at the scene who could have committed the
shooting, Reyes told police officers that it could have been related to
Lestelle recently gaining custody of his young son or it could have been
Keck. During transport to the hospital, she told a police officer that she
thought Keck had shot her. Other testimonial and forensic evidence
connected Keck to the shootings.
The jury convicted Keck of first-degree murder with the use of
a deadly weapon, attempted murder with the use of a deadly weapon,
1 Several
days later, when Reyes regained sufficient strength, labor
was induced. A bullet fell out of Reyes during delivery of the baby.
SUPREME COURT
OF
NEVADA
2
(0) 1947A e
manslaughter killing of an unborn quick child, attempted burglary while
in possession of a deadly weapon, and assault with the use of a deadly
weapon. 2
The State sought the death penalty based on four aggravating
circumstances: (1) Keck had been previously convicted of a felony
involving the use or threat of violence to another person (attempted
murder of Reyes with the use of a deadly weapon); (2) he had been
previously convicted of a felony involving the use or threat of violence to
another person (assault of Staley with the use of a deadly weapon); (3) he
killed Lestelle during a burglary; and (4) he knowingly created a great risk
of death to more than one person. The evidence supporting the
aggravating circumstances related exclusively to the circumstances of the
crime. As other evidence in aggravation, see NRS 175.552(3), the
prosecution introduced evidence of Keck's moderate criminal and prison
disciplinary history. Photographs were admitted showing him holding an
AK-47 rifle and a tattoo on his shoulder depicting a baby's head with the
words "kill babies" above it. The prosecution also presented victim-impact
testimony from Lestelle's mother, father, and grandfather who described
Lestelle's artistic talent and the devastating impact his death has had on
the family.
2The judgment of conviction incorrectly reflects that Keck was
convicted of burglary while in possession of a deadly weapon. We direct
the district court to correct the judgment of conviction to reflect that he
was convicted of attempted burglary while in possession of a deadly
weapon.
SUPREME COURT
OF
NEVADA
3
(0) 1947A Tea
In mitigation, Keck introduced testimony of family members
and friends who described his upbringing, positive aspects of his
personality, his artistic talent, and the depression he suffered after his
father suffered a stroke and his relationship with Reyes ended. He also
presented medical evidence and testimony indicating that his core mental
disturbance was schizotypal personality disorder, which resulted in
paranoia and odd and inappropriate behavior. His medical history reveals
that he had experienced anxiety, depression, and• substance abuse
problems. Brain scans suggested that he may have suffered head trauma
at some point in his life, which could have led to "odd, peculiar behavior"
and "catastrophic failure in [his] impulse control and [his] judgment."
Testimony also revealed that Keck experienced complications with
medications he was taking for his mental health problems. Keck
expressed remorse and shame for his actions.
The jury found all of the aggravating circumstances
submitted. Keck proffered five mitigating circumstances for the jury's
consideration: (1) he was under the influence of extreme mental or
emotional distress when he killed Lestelle, (2) he had mental health
issues, (3) he served in the United States Navy, (4) his father had suffered
a stroke and subsequent illness, and (5) any other mitigating
circumstance. At least one juror found that the murder was mitigated by
Keck's mental health issues. After concluding that the mitigating
SUPREME COURT
OF
NEVADA
4
(0) 194Th 4tto
circumstances did not outweigh the aggravating circumstances, the jury
imposed death. 3 This appeal followed.
Batson challenge
Keck argues that the district court erred by denying his
objection to the prosecution's use of peremptory challenges against two
black women in violation of the Equal Protection Clause and Batson v.
Kentucky, 476 U.S. 79 (1986). Because he did not challenge the
prosecution's exercise of peremptory strikes against those jurors until
after the jury had been sworn and the remaining venire members were
excused, his objection was untimely and therefore he waived review of this
issue on appeal. Chambers v. Johnson, 197 F.3d 732, 735 (5th Cir. 1999)
(holding that Batson objection must be raised before venire is dismissed);
United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994) (concluding that
"a Batson objection must be made at the latest before the venire is
dismissed and before the trial commences"); Dias v. Sky Chefs, Inc., 948
F.2d 532, 534 (9th Cir. 1991) (concluding that Batson challenge was
untimely where objection to peremptory strikes was made after excluded
jurors dismissed and jury had been sworn); see also Rhyne v. State, 118
Nev. 1, 11 n.26, 38 P.3d 163, 170 n.26 (2002) (concluding that defendant's
failure to object to prosecution's peremptory strikes of women jurors
3 Thedistrict court sentenced Keck to multiple definite concurrent
and consecutive terms in prison ranging from 12 to 60 months to 96 to 240
months for the remaining offenses and sentence enhancements.
SUPREME Cown
OF
NEVADA
5
(0) 194M cem
waived his challenge on appeal, citing Dias, Chambers, and Parham).4
Therefore, we decline to consider his Batson challenge.
Evidentiary challenges
Keck challenges several pieces of evidence admitted during
the penalty hearing. First, he argues that the admission of evidence and
testimony related to his criminal history and detention records constituted
inadmissible hearsay, its admission violated his Sixth Amendment right to
confrontation, and the evidence was impalpable and highly suspect. With
the exception of evidence related to his alleged assault of a man at Lake
Mead, Keck did not object to the admission of the challenged evidence. We
review his unpreserved claims of error for plain error affecting his
substantial rights. Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465,
477 (2008). To the extent his challenges include the Lake Mead incident,
we review for harmless error. See Knipes v. State, 124 Nev. 927, 935, 192
P.3d 1178, 1183 (2008) (explaining standards of review for constitutional
and nonconstitutional error). As we explained in Summers v. State, 122
Nev. 1326, 1333, 148 P.3d 778, 783 (2006), the Sixth Amendment right to
confrontation does not apply to capital sentencing hearings, and Keck has
not presented any persuasive reason to overrule Summers. See Miller v.
Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008) ("[U]nder the doctrine
4 We reject Keck's contention that the record precludes a conclusion
that his Batson objection was untimely because several unrecorded bench
conferences occurred immediately before the jury was sworn and the
remaining veniremembers were excused. Nothing in the record suggests
that he raised a Batson objection during any of those unrecorded bench
conferences.
SUPREME Coura
OF
NEVADA
6
(0) 1947A
of stare decisis, we will not overturn [precedent] absent compelling
reasons for so doing." (footnote omitted)). Further, we have observed that
hearsay is generally admissible in a capital penalty hearing. See NRS
175.552(3); Thomas v. State, 114 Nev. 1127, 1147, 967 P.2d 1111, 1124
(1998). Finally, we conclude that Keck has not demonstrated that any of
the challenged evidence was impalpable or highly suspect. See Silks v.
State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). Second, Keck argues
that the prosecution failed to provide notice of certain evidence offered in
aggravation as required by NRS 175.552 and SCR 250(4)(0—specifically,
evidence that he believed Lestelle's three-year-old son was in the
apartment on the night of the shooting. In its notice of aggravation, the
prosecution indicated that the great-risk-of-death aggravating
circumstance would be supported in part by evidence adduced at trial that
Lestelle's son resided in the apartment but was not home at the time of
the shootings. The notice did not expressly allege that Keck was aware
that the child lived in the apartment. We conclude that adequate notice
was given. Evidence that he was aware that the boy lived in the
apartment merely established the mens rea required to prove the
aggravating circumstance.
Prosecutorial misconduct
Keck argues that the State committed misconduct during the
penalty hearing by purposefully eliciting "holiday" testimony and
appealing to the jury's passions throughout its rebuttal argument thereby
violating his federal and state constitutional rights to "due process, equal
protection, a fair trial, fundamental fairness, his right to be free from
SUPREME COURT
OF
NEVADA
7
(0) 1947A *0194
prosecutorial misconduct, and his right to be free from cruel and unusual
punishment." 5 He also argues that the prosecutor committed misconduct
by arguing facts not in evidence. Improper argument is prejudicial when
it so infects the proceedings with unfairness as to make the results of the
proceeding a denial of due process. Thomas v. State, 120 Nev. 37, 47, 83
P.3d 818, 825 (2004); Blake v. State, 121 Nev. 779, 796, 121 P.3d 567, 578
(2005). Alleged improper statements should be considered in context.
Browning v. State, 124 Nev. 517, 533, 188 P.3d 60, 72 (2008). Because
Keck failed to object to the challenged testimony and argument, his claim
is reviewed for plain error. See Valdez, 124 Nev. at 1190, 196 P.3d at 477.
While Keck has not demonstrated plain error affecting his substantial
rights regarding any of his challenges, we are compelled to address two of
the prosecutor's arguments that we deem inflammatory and therefore
improper.
Wedding argument
Keck challenges a lengthy passage of the prosecutor's rebuttal
argument as inflammatory and designed to impassion the jury. The
essence of the prosecutor's argument is as follows. The defense counsel's
reference to weddings in his closing penalty hearing argument prompted
the prosecutor to think about "Angel and Jonathan and the wedding day
they will never have" and the wedding Lestelle's young son, Trenton, may
have in 15 years. The prosecutor commented on how Trenton might
5 There is no express constitutional right to a trial free from
prosecutorial misconduct, and Keck does not explain how his rights to be
free from cruel and unusual punishment and equal protection are
implicated by the prosecutor's alleged misconduct.
SUPREME COURT
OF
NEVADA
8
(0) 1947A zge44(
explain his father's absence "on the most important day of [his] life to a
wedding guest." Trenton would explain that his father was murdered,
and, assuming imposition of life imprisonment, the killer was still alive
and could receive visitors in prison. The prosecutor argued• that Trenton
might explain that even though the killer unsuccessfully attempted to kill
Reyes, the jury sentenced the killer to life in prison. The wedding guest
might also ask Trenton about his siblings, to which Trenton might respond
that Reyes was pregnant with his little brother, but the baby died and the
jury let the killer live even though the killer knew Reyes was pregnant.
Although defense counsel referred to a hypothetical wedding
during his closing argument, the context of counsel's comments entreated
the jurors to imagine themselves at a wedding reception where a guest
comments that he has jury duty and other guests describe to this person
how awful jury duty is and suggest ways to avoid it. Counsel's
hypothetical scenario then turned to the guest having served on a capital
case where death was imposed and the guest being peppered with
comments that the defendant's crimes must have been akin to those
committed on September 11, 2001, or a mass shooting, or the kidnapping,
sexual assault, and killing of a child. In contrast, the prosecutor's
argument asked the jurors to imagine Trenton's future wedding day—an
event that conjures up strong familial emotions—and how he might
explain his father's absence and the absence of his deceased sibling (Reyes'
unborn child). Simply because defense counsel employed a wedding
scenario in his closing argument did not open the door to using that event
for an improper purpose. Arguments touching upon the absence of a
murdered loved one on holidays or important life events such as a wedding
serve only to appeal to jurors' emotions rather than guiding jurors to
SUPREME COURT
OF
NEVADA
9
(0) 1947A
legitimate sentencing considerations. While the setting of a wedding was
not of particular importance to defense counsel's argument, it was of
crucial significance to the prosecutor's argument. We conclude that the
prosecutor's "wedding" argument did not fall within the purview of
appropriate rebuttal but was designed to inflame the passions and
sympathy of the jury. However, misconduct was committed by defense
counsel as well. Although defense counsel's use of a wedding venue is not
overly troubling in this particular instance, the overall tenor of his
argument suggested to the jurors that they might be in a position someday
where they would have to explain their decision to the public and would
likely be criticized or subjected to ridicule because they imposed death in a
case that did not involve a terrorist attack, a mass shooting, or the sexual
abuse and death of a child. We conclude that counsel's argument was
inflammatory and therefore improper. While misconduct occurred, Keck's
substantial rights were not affected considering the overwhelming
evidence supporting the death sentence.
Bullet argument
Keck takes issue with the prosecutor's argument that Reyes •
was "forced to deliver the very bullet that killed her baby" on the grounds
that no evidence established which bullet killed the fetus and the
comment was designed to inflame the jury. The evidence shows that
Reyes was shot eight times, including her abdomen, and the baby died as
a result of "multiple maternal gunshot wounds." Several days after the
shooting, when Reyes had regained sufficient strength, she delivered the
baby. One bullet passed during delivery. While the evidence shows that a
bullet fell out of her body during delivery of the fetus, the prosecutor's use
of the word "delivered" left the jurors with a vividly disturbing image that
SUPREME COURT
OF
NEVADA
10
(0) 1947A
served no other purpose than to inflame the jury's passions and sympathy
in an already emotionally charged case. This argument was improper.
Nevertheless, the error did not affect Keck's substantial rights considering
the nature and circumstances of Lestelle's murder and the compelling
aggravating circumstances found.
Public trial right
Keck contends that the district court violated his Sixth
Amendment right to a public trial by removing a spectator from the
courtroom during the penalty hearing and refusing to record bench
conferences. Because Keck expressly acquiesced in the district court's
removal of the spectator, he cannot now complain that error occurred. See
Levine v. United States, 362 U.S. 610, 617-20 (1960); Commonwealth v.
Ray, 4 N.E.3d 221, 228 (Mass. 2014). As to the unrecorded bench
conferences, we conclude that bench conferences do not implicate the
constitutional right to a public trial. See Richmond Newspaper, Inc. v.
Virginia, 448 U.S. 555, 598 n.23 (1980) (Brennen, J., concurring)
(observing that "when engaging in interchanges at the bench, the trial
judge is not required to allow public or press intrusion upon the huddle");
Morris Publishing Group, LLC v. State, 136 So. 3d 770, 782-83 (Fla. Dist.
Ct. App. 2014) (observing that "the public (and by extension, the press)
generally have no right of access to sidebars or bench conferences, or to
certain conferences conducted in judicial chambers"). It therefore follows
that the absence of a recording of bench conferences cannot violate the
Sixth Amendment right to a public trial.
Mitigation instruction
Keck argues that the district court's jury instruction defining
mitigating circumstances was erroneous because• it unconstitutionally
SUPREME COUFtT
OF
NEVADA
11
(0) 1947A
narrowed the type of mitigation evidence that the jury could consider,
leading the jury to believe that it could not consider aspects of his
character or record as mitigating circumstances. Because he did not object
to the instruction, we review for plain error affecting his substantial
rights. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). In
Watson v. State, we considered an identical instruction to the one given
here and concluded that there was no reasonable likelihood that the jury
misunderstood the instruction to preclude it from considering any aspect
of the defendant's character or record as a mitigating circumstance
regardless of whether it reflected on his moral culpability. 130 Nev. ,
, 335 P.3d 157, 171-74 (2014). Here, Keck spent considerable time
presenting mitigation evidence that was unrelated to the circumstances of
the offense, including aspects of his childhood, his artistic talent, positive
facets of his personality, and his mental health problems. The jury was
given a verdict form listing four specific proposed mitigating
circumstances plus "any other mitigating circumstance." Most of the
mitigating circumstances were unrelated to the circumstances of the
offense. Under the circumstances here, we are not convinced that the
jury's rejection of some of the mitigating circumstances shows that the
jury believed that it was precluded from considering his background,
character, and other circumstances unrelated to the offense. We therefore
conclude that there is no reasonable likelihood that the jurors
misunderstood the instruction as precluding them from considering any
aspect of Keck's character or record as a mitigating circumstance.
Mandatory appellate review of the death sentence
NRS 177.055(2) requires that this court review every death
sentence and consider whether (1) sufficient evidence supports the
SUPREME COURT
OF
NEVADA
12
(0) 1947A 4(ge,9
aggravating circumstances found, (2) the verdict was rendered under the
influence of passion, prejudice or any other arbitrary factor, and (3) death
sentence is excessive.
First, the jury found four aggravating circumstances—(1)
Keck had a prior violent felony conviction based on his attempted murder
of Reyes with the use of a deadly weapon, (2) he had a prior violent felony
conviction based on his assault of Staley with the use of a deadly weapon,
(3) he murdered Lestelle during the perpetration of an attempted burglary
while in possession of a deadly weapon, and (4) he knowingly created a
great risk of death to more than one person during the commission of the
murder. The aggravating circumstances stem from the circumstances
surrounding the murder and were proved beyond a reasonable doubt by
evidence introduced during the guilt phase of trial.
Second, this was undoubtedly an emotional case that left the
jurors with unforgettable images, including the shooting of a woman that
resulted in the death of her unborn child. The prosecutor's impassioned
account of Trenton's hypothetical wedding, highlighting the absence of
Lestelle and Trenton's siblings at that event had the potential to inflame
the jurors in an already emotionally-charged case. Nevertheless, we
conclude that the prosecutor's misconduct did not improperly influence the
jury where the record suggests a reflective jury. At least one juror found
that the murder was mitigated by Keck's mental health issues, which
played a significant role in his mitigation case. While the jury rejected the
remaining three specific mitigating circumstances proffered, two of those
mitigating circumstances—he committed the murder while under the
influence of extreme mental or emotional distress and his father's stroke
and subsequent illness—overlap with the mitigating circumstance found
SUPREME COURT
OF
NEVADA
13
(0) 1947A mem
because the evidence supporting those two mitigating circumstances
concerned mental problems he experienced during childhood and at the
time of the murder. The final mitigating circumstance based on his
service in the Navy was undermined by evidence showing that he feigned
mental illness to secure his separation from the service. Balancing the
effect of the wedding argument against indications of a contemplative jury
and the aggravating and mitigating evidence presented, we conclude that
the death sentence was not imposed under the influence of passion,
prejudice, or any other arbitrary factor.
Third, when considering whether the death sentence is
excessive, we ask whether the "crime and the defendant before [the court]
on appeal [are] of the class or kind that warrants the imposition of death?"
Dennis v. State, 116 Nev. 1075, 1085, 13 P.3d 434, 440 (2000). The
evidence shows that Keck, enraged by Reyes' pregnancy with another
man's child, approached Reyes and Lestelle's apartment armed with a
chainsaw and an assault rifle. He threatened an unarmed security guard
at the apartment complex by pointing an assault rifle at the guard's head.
Keck then chain sawed his way into Reyes and Lestelle's apartment and
fired multiple rounds from his assault rifle. Lestelle died, and Reyes
suffered eight gunshot wounds, resulting in significant injuries to her and
the death of her unborn child. While Keck presented credible mitigation
evidence, on balance with the calculated and vicious nature of the murder
and circumstances of the crimes, the record supports a conclusion that the
crime and Keck are of the class and kind that warrant the imposition of
the death penalty. Accordingly, the death sentence is not excessive.
SUPREME COUFtT
OF
NEVADA
14
(0) 1.947A (eo,
Having considered Keck's arguments and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED. 6
it-Lau ha-Wh , C.J.
Hardesty
1 44 J.
Parraguirre Douoat3
Saitta GibbonS
J.
Pickering
cc: Hon. Douglas W. Herndon, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
6 We
reject Keck's claim that his death sentence is unconstitutional,
as we have repeatedly upheld the constitutionality of the death penalty.
See, e.g., Nunnery v. State, 127 Nev. „ 263 P.3d 235, 257 (2011);
Leonard v. State, 117 Nev. 52, 83, 17 P.3d 397, 415-16 (2001); Colwell v.
State, 112 Nev. 807, 814-15, 919 P.2d 403, 408 (1996). We also reject his
claim that cumulative error warrants reversal of the judgment of
conviction. See generally Mulder u. State, 116 Nev. 1, 17, 992 P.2d 845,
854-55 (2000) (explaining factors in cumulative-error analysis).
SUPREME COURT
OF
NEVADA
15
(0) 1947P
CHERRY, J., dissenting:
I dissent and would remand this matter to the district court
for a new penalty hearing based on the cumulative effect of two errors.
First, the prosecutor's rebuttal arguments about young Trenton's future
wedding and Reyes' delivery of the bullet that killed her unborn child were
overtly designed to inflame the jurors' emotions and distract them from
basing their sentencing decision on the evidence and the law. I agree with
the majority that defense counsel engaged in improper argument as well.
But such obvious efforts by the prosecution to escalate the emotions of the
jury are inexcusable, particularly in a case where, as here, the facts and
circumstances of the offenses themselves undoubtedly elevated the jurors'
sympathy and emotions. See Tucker v. Zant, 724 F.2d 882, 888 (11th Cir.
1984) (explaining that the "Constitution will not permit arguments on
issues extrinsic to the crime or the criminal aimed at inflaming the jury's
passions, playing on its fears, or otherwise goading it into an emotional
state more receptive to a call for imposition of death and `invit[ing] the
jury to decide the life-death verdict in a frenzied and emotional
atmosphere" (quoting Brooks v. Francis, 716 F.2d 780, 789 (11th Cir.
1983))). Second, the jury received the same erroneous instruction at issue
in our decision in Watson v. State, 130 Nev. 335 P.3d 157 (2014). The
concerns that I expressed about this instruction in my dissent in Watson
are present here—the instruction likely confused the jury and improperly
limited its consideration of mitigating evidence to those matters related to
the offense. There is no room for confusion where jurors must determine
whether a death sentence is appropriate. Justice requires that jurors
receive clear instructions to guide their discretion in imposing
punishment.
SUPREME COURT
OF
NEVADA
(0) 1947A e
While I recognize that the facts and circumstances of the
offenses in this case are disturbing and that Keck did not object to either
error, the cumulative effect of the prosecutor's over-the-top emotionally
charged arguments coupled with an erroneous mitigation instruction that
likely confused the jury in exercising its sentencing discretion cannot be
underestimated. As such, I conclude that this case demands a new
penalty hearing.
SUPREME COURT
Of
NEVADA
2
(0) 1947A 49e