Hover (Gregory) v. State (Death Penalty-Direct) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
GREGORY LEE HOVER, No. 63888
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
• FILED
FEB 1 9 2016
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction in a death
penalty case. Eighth Judicial District Court, Clark County; Carolyn
Ellsworth, Judge.
Appellant Gregory Hover and Richard Freeman kidnapped,
sexually assaulted, robbed, and murdered Prisma Contreras outside of Las
Vegas, Nevada. Ten days later, Hover broke into the home of Julio and
Roberta Romero in Las Vegas, Nevada. He bound and shot Julio, forced
Roberta to retrieve certain property, shot her, and left the home with
jewelry and bank cards. Julio died as a result of his injuries; Roberta
survived. Hover and Freeman also robbed the slot areas of three Las
Vegas grocery stores. Lastly, while in pretrial detention, Hover attacked
his cellmate with scissors.
A jury found Hover guilty of conspiracy to commit kidnapping;
five counts of conspiracy to commit robbery; conspiracy to commit sexual
assault; conspiracy to commit murder; five counts of burglary while in
possession of a deadly weapon; three counts of first-degree kidnapping
with the use of a deadly weapon; four counts of robbery with the use of a
deadly weapon; two counts of robbery with the use of a deadly weapon,
victim 60 years of age or older; sexual assault with the use of a deadly
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weapon; two counts of murder with the use of a deadly weapon; first-
degree arson; two counts of burglary; attempted murder with the use of a
deadly weapon; and battery by a prisoner with the use of a deadly weapon.
The jury sentenced Hover to death for each murder conviction and the
district court imposed numerous consecutive and concurrent sentences for
the remaining convictions. In this appeal, Hover alleges numerous errors
during the guilt and penalty phases of trial.
Guilt phase issues
Juror challenges
Hover raises several challenges to district court decisions
during voir dire.
First, Hover contends that the district court erred in denying
his challenges of prospective jurors whom he contends were predisposed
toward a death sentence. We discern no abuse of discretion. See Weber v.
State, 121 Nev. 554, 580, 119 P.3d 107, 125 (2005) (reviewing a district
court's decision whether to excuse potential jurors for abuse of discretion).
Despite the jurors' preference for harsher punishments, they
acknowledged that Hover was innocent until proven guilty and that they
would listen to all the evidence presented, follow the court's instructions,
and fairly consider all possible penalties. See id. (providing that reviewing
court must inquire "'whether a prospective juror's views would prevent or
substantially impair the performance of his duties as a juror in accordance
with his instructions and oath." (quoting Leonard v. State (Leonard II),
117 Nev. 53, 65, 17 P.3d 397, 405 (2001) (internal quotes omitted))).
Moreover, the challenged prospective jurors were not ultimately
empaneled and Hover does not allege that any juror actually empaneled
was unfair or biased. See Blake v. State, 121 Nev. 779, 796, 121 P.3d 567,
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578 (2005) ("If the jury actually seated is impartial, the fact that a
defendant had to use a peremptory challenge to achieve that result does
not mean that the defendant was denied his right to an impartial jury.").
Second, Hover contends that the district court erred in
granting the State's challenge to a potential juror. We discern no abuse of
discretion. See Weber, 121 Nev. at 580, 119 P.3d at 125. The record
established that the juror's views would "prevent or substantially impair
the performance of [her] duties as a juror in accordance with [her]
instructions and oath." Id. (quoting Leonard II, 117 Nev. at 65, 17 P.3d at
405). In particular, despite the beyond a reasonable doubt standard, the
potential juror stated that she would require proof of a defendant's guilt
beyond any doubt in order to impose the death penalty. See Browning v.
State, 124 Nev. 517, 526, 188 P.3d 60, 67 (2008) ("The focus of a capital
penalty hearing is not the defendant's guilt, but rather his character,
record, and the circumstances of the offense.").
Third, Hover argues that the district court erred in denying
his objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) to the
State's use of a peremptory challenge. We conclude that Hover failed to
demonstrate a prima facie case of discrimination as required under
Batson. See Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577 (2006)
(providing that "the opponent of the peremptory challenge must make out
a prima facie case of discrimination"). Under the totality of the
circumstances, the strike of one African-American juror while another
African-American juror remained on the panel, did not establish an
inference of discrimination in this case. See Watson v. State, 130 Nev.,
Adv. Op. 76, 335 P.3d 157, 166 (2014) (providing that to establish a prima
facie case, "the opponent of the strike must show 'that the totality of the
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relevant facts gives rise to an inference of discriminatory purpose"
(quoting Batson, 476 U.S. at 93-94)). Thus, the burden did not shift to the
State to proffer a race-neutral reason for the strike. Ford, 122 Nev. at
403, 132 P.3d at 577 (providing that once a prima facie case of
discrimination is established "the production burden then shifts to the
proponent of the challenge to assert a neutral explanation for the
challenge"). Nevertheless, the State proffered several race-neutral
reasons for striking the juror that were not belied by the record.
Therefore, the district court did not abuse its discretion in denying Hover's
challenge.
Positron emission tomography (PET) scan
Hover argues that the district court abused its discretion in
denying his motion to obtain a PET scan because funding was available
and the district attorney did not object to the testing. See State v. Second
Jud. District Court, 85 Nev. 241, 245, 453 P.2d 421, 423-24 (1969)
(reviewing denial of motion seeking payment of defense expenses for an
abuse of discretion). We disagree for two reasons. First, Hover did not
request a PET scan below but instead requested a Magnetic Resonance
Imaging (MRI) scan.' The district court cannot be faulted for failing to
order a scan that was not requested. Second, Hover did not meet his
burden of demonstrating that either scan was necessary. See Gallego v.
State, 117 Nev. 348, 370, 23 P.3d 227, 242 (2001), abrogated on other
grounds by Nunnery v. State, 127 Nev., Adv. Op. 69, 263 P.3d 235 (2011).
Counsel conceded in the district court that the defense expert witness did
'An MRI scan generates detailed images of the organs and tissues of
the body. A PET scan employs a radioactive tracer drug to reveal how the
tissues and organs are functioning.
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not request the scan or conclude that it was necessary to diagnose Hover
but sought testing merely because Hover was "facing a death sentence." 2
See Jaeger v. State, 113 Nev. 1275, 1285, 948 P.2d 1185, 1191 (1997)
(Shearing, C.J., concurring) ("Mho guarantees of due process do not
include a right to conduct a fishing expedition."). The district court cannot
be faulted for denying a request that was not made nor supported by some
basis for the request.
Cross-examination of DNA analyst
Hover also contends that the district court abused its
discretion in preventing him from cross-examining the DNA analyst about
errors in other cases. 3 The record indicates that the analyst had worked
at the lab at the time when significant errors were revealed. Therefore,
Hover claims that the district court abused its discretion in concluding
that the events of which Hover complained were irrelevant without
conducting an evidentiary hearing. See Patterson v. State, 129 Nev., Adv.
Op. 17, 298 P.3d 433, 439 (2013) ("[A]n abuse of discretion occurs
whenever a court fails to give due consideration to the issues at hand.");
see Collman v. State, 116 Nev. 687, 702, 7 P.3d 426, 436 (2000) ("The
decision to admit or exclude evidence rests within the trial court's
discretion, and this court will not overturn that decision absent manifest
2In his reply brief, Hover asserts that the psychological expert
indicated that a scan was necessary, however he does not cite to the record
where such an assertion was made.
3 Hover also contends that cross-examination about the lab's prior
errors in DNA identification would expose bias on the part of the analyst
or department. It is unclear how the lab's prior errors could influence the
analyst in such a way as to lead to a "personal and sometimes unreasoned
judgment." Merriam-Webster's Collegiate Dictionary 110 (10th ed. 1995).
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error."). We agree that the district court should have allowed the
consideration of this matter but conclude that the error was harmless. See
Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d 465, 476 (2008) ("If the
error is of constitutional dimension, then . . . [this court] will reverse
unless the StateS demonstrates, beyond a reasonable doubt, that the error
did not contribute to the verdict."). There is no indication that the witness
was involved in any of the prior cases where errors were shown to have
occurred. Therefore, her conclusions would not have been significantly
undermined by the prohibited cross-examination. Moreover, while her
conclusions were arguably powerful, there was substantial evidence of
Hover's guilt notwithstanding that evidence. Hover repeatedly implicated
himself in the sexual assault and murder of Contreras in statements that
were consistent with physical evidence. In addition, cell phone records
placed Hover in the area where Contreras' body was found, surveillance
video showed a car like Hover's following Contreras' Jeep, Freeman's
fingerprint was found on a matchbook at the scene, and surveillance video
showed Hover and Freeman purchasing bleach and disposing of clothing
shortly after the murder.
Cross-examination of Marcos Ramirez
Hover contends that the district court improperly limited his
cross-examination of Marcos Ramirez, who he was accused of attacking in
pretrial detention, to preclude questioning about prior arrests and
convictions for violent crimes. We discern no abuse of discretion. See
Collman, 116 Nev. at 702, 7 P.3d at 436. The district court permitted
Hover to ask whether Ramirez told Hover about his prior record during
their detention and Ramirez acknowledged that he told Hover about his
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three convictions for domestic violence. 4 That prior conduct therefore was
relevant to establishing Hover's defense. See Daniel v. State, 119 Nev.
498, 515, 78 P.3d 890, 902 (2003) ("[E]vidence of specific acts showing that
the victim was a violent person is admissible if a defendant seeks to
establish self-defense and was aware of those acts."). On the other hand,
whether Ramirez had been arrested for coercion and a probation violation
alleging battery with a deadly weapon was not relevant because prior
arrests did not demonstrate that he had committed prior acts of violence.
See Daniel, 119 Nev. at 512-13, 78 P.3d at 900 ("An arrest shows only that
the arresting officer thought the person apprehended had committed a
crime . . . . An arrest does not show that a crime in fact has been
committed, or even that there is probable cause for believing that a crime
has been committed.").
Witness' outburst
Hover contends that the district court erred in denying his
motion for mistrial based on Roberta Romero's outburst during her
testimony. We disagree. Given the brevity of the outburst, in relation to
both Roberta's testimony and the entirety of the guilt-phase testimony, the
swift manner in which the district court addressed it, and the fact that
statements were not translated for the jury, the outburst likely did not
unduly influence the jury. See Johnson v. State, 122 Nev. 1344, 1358-59,
148 P.3d 767, 777 (2006) (providing that an isolated incident of the
victim's brother passing out in response to a crime scene photograph did
4 Ramireztestified that he had one felony conviction for third-offense
domestic violence. See NRS 200.485 (providing that, under certain
circumstances, first and second domestic violence offenses are punishable
as misdemeanors and the third offense is punishable as a felony).
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not render the penalty hearing fundamentally unfair). Therefore, the
district court did not abuse its discretion in denying the motion for a
mistrial. See Rose v. State, 123 Nev. 194, 206-07, 163 P.3d 408, 417
(2007).
Bad act testimony
Hover argues that the district court erred in permitting the
State to elicit testimony about uncharged ATM robberies on the ground
that he opened the door to that evidence. We discern no plain error. See
Nelson v. State, 123 Nev. 534, 543, 170 P.3d 517, 524 (2007) (reviewing un-
objected to error for plain error affecting substantial rights). The initial
discussion about the ATM robberies occurred during defense questioning.
Although it may have been unnecessary for the State to refer to the ATM
robberies on redirect, the comment was brief and the State did not elicit
further testimony about the robberies. Therefore, Hover failed to
demonstrate that the State's comment prejudiced his substantial rights.
See id. at 543, 170 P.3d at 524 (requiring that appellant demonstrate that
error which is apparent from "a casual inspection of the record" was
prejudicial).
Impermissible impeachment
Hover contends that the State impermissibly impeached its
own witness by eliciting testimony that her prior conviction for child
molestation involved consensual sexual contact with a 15-year-old when
the witness was herself 19 years old. We agree. Although a party may
"remove the sting" of impeachment by questioning its own witness about
the existence of prior convictions, United States v. Ohlers, 169 F.3d 1200,
1202 (9th Cir. 1999) (quoting F.R.E. 609 advisory committee's note to 1990
amendment), a witness may not be impeached by questioning about the
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sentence imposed or the facts underlying the conviction, see Jacobs v.
State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975) (providing that
sentence imposed on witness is not relevant to impeachment); Plunkett v.
State, 84 Nev. 145, 147, 437 P.2d 92, 93 (1968) (providing the
circumstances underlying prior convictions are not relevant to
impeachment). Nevertheless, this error was harmless. See Valdez, 124
Nev. at 1189, 196 P.3d at 476 (explaining that errors that are not of a
constitutional nature do not warrant reversal unless they "substantially
affect[ed] the jury's verdict"). The witness' testimony, which chiefly
described the January 28, 2010 robbery, was detailed and corroborated by
other evidence.
Improper identification
Hover contends that the district court erred in permitting
Detective Karl Lorson to testify that Freeman was not the perpetrator
depicted in the three surveillance videos and that the perpetrator of the
robberies was the same individual. We conclude that the district court did
not abuse its discretion in permitting Detective Lorson to testify that
Freeman was not in the surveillance videos. Detective Lorson had two
opportunities to observe Freeman prior to viewing the surveillance
footage. During those instances, he observed Freeman's physique and
facial features. Thus, there is a reasonable basis for concluding that he
could more likely correctly recognize Freeman or indicate that it was not
Freeman in the video. See Rossana v. State, 113 Nev. 375, 380, 934 P.2d
1045, 1048 (1997) (providing a lay witness's opinion testimony "regarding
the identity of a person depicted in a surveillance photograph" is
admissible "if there is some basis for concluding that the witness is more
likely to correctly identify the defendant from the photograph than is the
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jury." (internal quotation marks omitted)). However, the district court
erred in permitting Detective Lorson to testify that, though the
surveillance videos did not depict Freeman, the videos all depicted the
same perpetrator. Detective Lorson's testimony did not establish that he
had a reasonable basis to more likely correctly determine that the same
perpetrator was shown in all three videos. However, the error did not
affect Hover's substantial rights, see Nelson, 123 Nev. at 543, 170 P.3d at
524, as there was substantial evidence besides this testimony which
indicated that Hover robbed the three grocery stores.
Hover's admission to a correctional officer
Hover argues that the district court erred in admitting
testimony about a statement he made to a corrections officer in violation of
Miranda v. Arizona, 384 U.S. 436 (1966). We disagree. Hover was in
custody when he admitted to slashing Ramirez. 5 See Taylor v. State, 114
Nev. 1071, 1082, 968 P.2d 315, 323 (1998). However, the corrections
officer's query about whether Hover had sustained injuries was not an
"interrogation" under Miranda, in that it was not reasonably likely to
elicit an incriminating response from Hover. Rhode Island v. Innis, 446
U.S. 291, 301 (1980). Therefore, the district court did not err in denying
the motion to suppress.
Gruesome photographs
Hover contends that the district court erred in admitting
unduly prejudicial autopsy photographs. He further contends that a
5Corrections Officer Roger Cole testified that he "asked [Hover] if he
had any injuries and he state that, no. And then he told me that he had
sliced the [Ramirez]'s back. [Ramirez] stood up, took the scissors from
[Hover], and cut his hand."
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photograph depicting a feminine pad near the victim, which was
introduced during the penalty phase of trial, was inflammatory because it
suggests that he sodomized Contreras. We conclude that this claim lacks
merit. The district court enjoys broad discretion in matters related to the
admission of evidence, Byford v. State, 116 Nev. 215, 231, 994 P.2d 700,
711 (2000), including the admission of "photographs . . . as long as their
probative value is not substantially outweighed by their prejudicial effect,"
Libby v. State, 109 Nev. 905, 910, 859 P.2d 1050, 1054 (1993), vacated on
other grounds, 516 U.S. 1037 (1996). Although the autopsy photographs
are gruesome, they were relevant in that they assisted the medical
examiner in testifying about Contreras' cause of death, the manner in
which she received the injuries, and the condition of her body when it was
discovered. As to the photograph that was introduced during the penalty
phase of trial, Hover failed to show that the district court abused its
discretion. The district court concluded that the photograph was
admissible because it constituted physical evidence that corroborated the
testimony that Contreras was sodomized which "would have been even
more painful than sexual assault through intercourse vaginally." The
pain inflicted on Contreras during Hover's crimes against her was
relevant to establishing an aggravating circumstance alleged by the State.
See NRS 200.033(8).
Freeman's bad act evidence
Hover argues that the district court erred in denying him the
opportunity to introduce evidence that Freeman possessed child
pornography and had committed prior crimes involving knives because the
evidence could have shown that Freeman was more culpable in the sexual
assault and murder. We discern no abuse of discretion, see Ramet v. State,
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125 Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing district court's
decision to admit or exclude for an abuse of discretion), because evidence
that Freeman possessed child pornography or had committed other crimes
with knives was not admissible to prove or refute the allegation that
Hover sexually assaulted Contreras, see NRS 48.045(2) ("Evidence of other
crimes, wrongs or acts is not admissible to prove the character of a person
in order to show that the person acted in conformity therewith.").
Insufficient evidence of kidnapping for Julio Romero
Hover argues that the State failed to produce sufficient
evidence to support his conviction for kidnapping Julio Romero because
there was no evidence that Julio had been moved for any purpose beyond
the completion of the robbery and therefore the kidnapping was merely
incidental to the robbery. We disagree. The evidence established that
Hover moved Julio from the front door to another bedroom where he was
taped to a chair and shot. Hover had taken Julio's wallet from the
kitchen, but no evidence suggests that anything of value was taken from
the bedroom in which Julio was found. Therefore, the movement was not
necessary to complete the robbery. See Mendoza v. State, 122 Nev. 267,
275, 130 P.3d 176, 181 (2006) (explaining that to be a separate crime when
arising from the same conduct as a robbery, a kidnapping must involve (1)
"movement or restraint [that has] independent significance from the act of
robbery itself," (2) "create a risk of danger to the victim substantially
exceeding that necessarily present in the crime of robbery," or (3) "involve
movement, seizure or restraint substantially in excess of that necessary to
its completion"); see also Wright v. State, 94 Nev. 415, 418, 581 P.2d 442,
444 (1978) (setting aside a kidnapping conviction because "the movement
of the victims appear[ed] to have been incidental to the robbery and
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without an increase in danger to them"), modified on other grounds by
Mendoza, 122 Nev. at 274, 130 P.3d at 181. Further, Hover's statements
to his cellmate indicated that Julio was bound and murdered before Hover
searched the home for valuables. Because the restraint had an
"independent significance from the act of robbery," Mendoza, 122 Nev. at
276, 130 P.3d at 181, and the evidence satisfies the elements of
kidnapping, see NRS 200.310(1), sufficient evidence supports Hover's
conviction for kidnapping. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Brady/ Giglio evidence
Hover contends that the State failed to disclose evidence
related to whether Ramirez received a benefit for his testimony in
violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150 (1972). We disagree. Nothing in the record suggests
that Ramirez's guilty plea agreement or sentence was premised on any
benefit from the State in exchange for his testimony at Hover's trial.
Therefore, the district court did not err in denying this claim. See Mazzan
v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000) (employing de novo
standard of review for Brady challenges raised in the district court).
Prosecutorial misconduct
Hover identifies two arguments by the prosecutor that he
contends constitute prosecutorial misconduct. Prejudice from
prosecutorial misconduct results when "a prosecutor's statements so
infected the proceedings with unfairness as to make the results a denial of
due process." Thomas v. State (Thomas I), 120 Nev. 37, 47, 83 P.3d 818,
825 (2004). The challenged comments must be considered in context and
"a criminal conviction is not to be lightly overturned on the basis of a
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prosecutor's comments standing alone." Hernandez v. State, 118 Nev.
513, 525, 50 P.3d 1100, 1108 (2002) (quoting United States v. Young, 470
U.S. 1, 11 (1985)). Because Hover failed to object, his claims are reviewed
for plain error affecting his substantial rights. See NRS 178.602; Gallego,
117 Nev. at 365, 23 P.3d at 239.
First, Hover contends that the State's argument that Hover
committed the crimes as a result of racial animus was not supported by
the evidence. See Rice v. State, 113 Nev. 1300, 1312, 949 P.2d 262, 270
(1997) (noting that a prosecutor has a duty to refrain from making
statements that cannot be proved at trial), abrogated on other grounds by
Rosas v. State, 122 Nev. 1258, 1265 n.10, 147 P.3d 1101, 1106 n.10 (2006).
We disagree. Evidence introduced at trial showed that Hover told
Ramirez that he "killed some Mexicans." Further, the evidence clearly
demonstrates that Hover levied his most violent actions against Latino
victims. Therefore, he failed to demonstrate that the district court plainly
erred.
Second, Hover argues that the State impermissibly shifted the
burden of proof when it argued that "[t]he only person who doesn't believe
that—or doesn't state that Gregory Hover is guilty of Count 31 is [defense
counsel] Christopher Oram." We disagree. When read in context, the
challenged comment contends that, given the consistent accounts from
Ramirez, the officers on the scene of the jail assault, and Hover's own
admission, it was not unreasonable for the correctional officers to decide
not to collect video of the incident. Thus, the observation that defense
counsel was the only individual who. believed it was necessary to obtain
the video was a proper response to Hover's argument that there was
insufficient evidence to convict because prison staff failed to collect video
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evidence. See Miller v. State, 121 Nev. 92, 99, 110 P.3d 53, 58 (2005)
(requiring that prosecutor's comments must be considered in context in
which they were made). While the comment could also be taken as
disparaging of the defense's argument, see Butler v. State, 120 Nev. 879,
898, 102 P.3d 71, 84 (2004) (providing that a prosecutor may not disparage
legitimate defense tactics), it did not shift the burden of proof. Therefore,
Hover failed to demonstrate that the district court plainly erred.
Juror misconduct
Hover argues that the district court erred in denying his
motion for a mistrial based on juror misconduct. He asserts that removing
the offending juror was not sufficient to address the misconduct. We
discern no abuse of discretion. See Viray v. State, 121 Nev. 159, 164, 111
P.3d 1079, 1083(2005) (recognizing district court's discretion to address
juror misconduct); Meyer v. State, 119 Nev. 554, 563-64, 80 P.3d 447, 455
(2003) (providing that a defendant must establish that juror misconduct
occurred and was prejudicial in order to prevail on a motion for mistrial).
Juror 8 engaged in misconduct by conducting research on the proceedings
and contesting the district court's instruction on the law. See Valdez, 124
Nev. at 1186, 196 P.3d at 475 ("A jury's failure to follow a district court's
instruction is intrinsic juror misconduct."); see also Meyer, 119 Nev. at 565,
80 P.3d at 456 ("[O]nly in extreme circumstances will intrinsic misconduct
justify a new trial."). However, the jury did not permit juror 8 to share the
results of his research and quickly informed the court of his actions. No
other juror learned the results of that research. Therefore, Hover failed to
demonstrate a "reasonable probability• or likelihood that the juror
misconduct affected the verdict." Meyer, 119 Nev. at 564, 80 P.3d at 455;
see also Zana v. State, 125 Nev. 541, 548, 216 P.3d 244, 248 (2009) (noting
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that court should consider (1) how long the jury discussed the extrinsic
evidence, (2) when the discussion occurred relative to the verdict, (3) the
specificity or ambiguity of the information, and (4) whether the issue
involved was material).
Jury instructions
Hover contends that the district court erred in giving several
instructions during the guilt phase of trial. Specifically, he contends that
the implied malice instruction does not use language a reasonable juror
would understand, the premeditation instruction does not sufficiently
differentiate the elements of first- and second-degree murder, the equal
and exact justice instruction confused the jury, and the reasonable doubt
instruction impermissibly minimized the burden of proof. We discern no
abuse of discretion. See Crawford v. State, 121 Nev. 744, 748, 121 P.3d
582, 585 (2005) (noting district court's broad discretion to settle jury
instructions). This court has upheld the language used in the implied
malice instruction, see Leonard v. State, 117 Nev. 53, 78-79, 17 P.3d 367,
413 (2001) (the statutory language of implied malice is well established in
Nevada and accurately informs the jury of the distinction between express
and implied malice); Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 483
(2000) (the substitution of the word "may" for "shall" in an implied malice
instruction is preferable because it eliminates the mandatory
presumption); the premeditation instruction, see Byford v. State, 116 Nev.
215, 236-37, 994 P.2d 700, 714-15 (2000); and the equal and exact justice
instruction, see Thomas v. State, 120 Nev. 37, 46, 83 P.3d 818, 824 (2004);
Daniel v. State, 119 Nev. 498, 522, 78 P.3d 890, 906 (2003); Leonard v.
State, 114 Nev. 1196, 1209, 969 P.2d 288, 296 (1998). In addition, the
district court gave Nevada's statutory reasonable doubt instruction as set
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forth in and mandated by NRS 175.211, and we have repeatedly upheld
the constitutionality of that instruction. See, e.g., Chambers v. State, 113
Nev. 974, 982-83, 944 P.2d 805, 810 (1997); Evans v. State, 112 Nev. 1172,
1191, 926 P.2d 265, 277 (1996); Lord v. State, 107 Nev. 28, 40, 806 P.2d
548, 556 (1991), limited on other grounds by Summers v. State, 122 Nev.
1326, 1331, 148 P.3d 778, 782 (2006).
Penalty phase issues
Freeman's bad act evidence
Hover argues that the district court erred in denying him the
opportunity to introduce evidence of Freeman's bad acts and upbringing to
present a proportionality argument. We discern no abuse of discretion.
See Ramet, 125 Nev. at 198, 209 P.3d at 269. As "[t]he focus of a capital
penalty hearing is . . . [the defendant's] character, record, and the
circumstances of the offense," evidence related to Freeman's upbringing
and prior record were not relevant to determining Hover's sentence. See
Browning, 124 Nev. at 526, 188 P.3d at 67; see also NRS 48.025(2)
('Evidence which is not relevant is not admissible."). Further, the district
court was not required to allow evidence related to Freeman's background
because proportionality of sentences between similarly situated
defendants is not constitutionally mandated. See Pulley v. Harris, 465
U.S. 37, 44 (1984) (rejecting claim that appellate court must review
proportionality of a defendant's sentence against similarly situated
defendants).
Testimony of Freeman's attorney
Hover contends that the district court erred in denying his
request to introduce the testimony of Freeman's attorney to describe the
terms of Freeman's guilty plea agreement. We disagree. Because
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Freeman's guilty plea agreement was admitted into evidence during the
penalty phase of trial, testimony about the contents of that agreement was
not necessary. See NRS 48.035(2) ("Although relevant, evidence may be
excluded if its probative value is substantially outweighed by
considerations of undue delay, waste of time or needless presentation of
cumulative evidence.").
Prosecutorial misconduct
Hover contends that the State engaged in several instances of
prosecutorial misconduct during the penalty phase of trial.
First, Hover argues that the State improperly asserted that he
had been stalking Contreras because there was no evidence supporting
this statement. We disagree. Witnesses to whom Hover described the
rape and murder of Contreras realized from his description of the events
that he had been infatuated with her. As there was some evidence
introduced at trial which supported the State's argument, see Rice, 113
Nev. at 1312, 949 P.2d at 270 (noting prosecutor's duty to refrain from
making statements that cannot be proved at trial), the district court did
not abuse its discretion in overruling the objection to the comment.
Second, Hover contends that the State improperly implied
that Hover intended to sexually assault Roberta but could not because he
did not have time.° We disagree. The State's comment does not overtly
suggest that Hover planned to sexually assault Roberta. Therefore, the
district court did not plainly err in concluding that the statement was too
°During penalty phase opening arguments, the prosecutor stated
that the evidence would show "why and how Roberta was shot and what
was going to happen to her had that phone call from Mr. Freeman come
into that home and caused the defendant to leave early."
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"amorphous" to imply a plan on Hover's part that was not borne out by the
evidence. See Patterson, 111 Nev. at 1530, 907 P.2d 987 (providing that
plain error must be "so unmistakable that it reveals itself by a casual
inspection of the record").
Third, Hover argues that the State improperly suggested that
Hover's disposal of a firearm before committing the charged crimes
indicated that he had committed other uncharged crimes. We disagree.
The State's argument is supported by evidence introduced at the penalty
hearing. In particular, witnesses testified that Hover had approached an
individual on whom he was supposed to serve process while brandishing a
firearm and Hover, Freeman, and Pamela Lindus had robbed an elderly
man at an ATM. Therefore, Hover failed to demonstrate that the district
court abused its discretion in overruling the objection.
Jury instructions
Hover argues that: (1) the instruction concerning weighing
aggravating and mitigating circumstances did not conform to the beyond-
a-reasonable-doubt standard of Johnson v. State, 118 Nev. 787, 802, 59
P.3d 450, 460 (2002); the "moral culpability" language in the instruction
defining mitigating circumstances was not broad enough to define
mitigating circumstances; and the instructions failed to define "felony
involving the use or threat of violence to the person of another." Hover did
not object to the instructions below and we conclude that the district court
did not plainly err in instructing the jury. See Valdez, 129 Nev. at 1190,
196 P.3d at 477 (reviewing unobjected-to error for plain error affecting
substantial rights). As to the weighing of aggravating and mitigating
circumstances, the instruction here comports with our decision in Nunnery
v. State, 127 Nev., Adv. Op. 69, 263 P.3d 235, 253 (2011), that the
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weighing of aggravating and mitigating circumstances is not a factual
determination and thus it is not subject to the proof beyond a reasonable
doubt standard. As for the "moral culpability" language in the mitigation
instruction, considering the instruction as a whole we are not convinced
that the jury was reasonably likely to understand the instruction to limit
its ability to consider "any aspect of [the defendant's] character or record
as a mitigating circumstance regardless of whether it reflected on his
moral culpability," Watson, 130 Nev., -Adv. Op. No. 76, 335 P.3d at 173,
particularly where one or more of the jurors found many mitigating
circumstances that related to Hover's background and character and were
unrelated to the crime. And lastly, the phrase "felony involving the use or
threat of violence" does not use words with "technical legal meaning" and
is commonly understood; it therefore needed no further definition. See
Dawes v. State, 110 Nev. 1141, 1146, 881 P.2d 670, 673 (1994).
Constitutionality of the death penalty
Hover argues that the death penalty violates the Eighth
Amendment of the United States Constitution's prohibition against cruel
and unusual punishment because it does not sufficiently narrow the class
of persons eligible for the death penalty. He further contends that the
death penalty is cruel and therefore violates the Nevada Constitution's
prohibition against cruel or unusual punishments. Similar arguments
have been previously rejected by this court. See, e.g., Thomas v. State
(Thomas II), 122 Nev. 1361, 1373, 148 P.3d 727, 735-36 (2006)
(reaffirming that Nevada's death penalty statutes sufficiently narrow the
class of persons eligible for the death penalty); Colwell v. State, 112 Nev.
807, 814-15, 919 P.2d 403, 408 (1996) (rejecting claims that Nevada's
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death penalty scheme violates the United States or Nevada Constitutions).
Therefore, no relief is warranted on this claim.
Cumulative error
Hover contends that the cumulative effect of errors warrants
reversal of his convictions and sentences. "The cumulative effect of the
errors may violate a defendant's constitutional right to a fair trial even
though errors are harmless individually." Hernandez, 118 Nev. at 535, 50
P.3d at 1115. 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). Based on the foregoing discussion of Hover's claims, we conclude
that any error in this case, when considered either individually or
cumulatively, does not warrant relief.
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 arbitrary factor, and (3) the death
sentence is excessive. First, sufficient evidence supported the aggravating
circumstances found regarding each murder—Hover had been convicted of
more than one count of murder; Hover had been convicted of numerous
crimes involving the use or threat of violence; Contreras' murder occurred
in the flight after Hover committed burglary while in possession of a
firearm, first-degree kidnapping with the use of a deadly weapon, and
robbery with the use of a deadly weapon; Hover subjected Contreras to
nonconsensual sexual penetration before he murdered her; Hover
mutilated Contreras' body after killing her; Julio's murder occurred during
or in the flight after Hover committed burglary while in possession of a
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firearm, robbery with the use of a deadly weapon, and first-degree
kidnapping with the use of a deadly weapon; and Julio was murdered to
prevent Hover's arrest. 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 plethora of violent crimes
Hover committed during his two-week spree, which included kidnapping,
rape, armed robbery, burglary, two murders, and attempted murder and
the evidence in mitigation, we conclude that his sentence was not
excessive.
Having considered Hover's contentions and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
OLAfi- , C.J. /--Let-trn , J.
Parraguirtir i Hardest
J.
Douglas Saitta
'
Reid/lay J.
Gibbons Pickering
CHERRY, J., dissenting:
In my view, the district court abused its discretion in denying
Hover's motion for transportation to undergo medical imaging. And I
agree with the majority that the district court erred in limiting the cross-
examination of the DNA analyst, permitting Detective Karl Lorson to
testify that the surveillance videos depicted the same perpetrator, and
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allowing the State to impermissibly "remove the sting" of its own witness'
prior conviction, but in contrast, I believe those errors affected Hover's
substantial rights. I therefore dissent.
Medical imaging
The district court must order payments of reasonable amounts
for expert services incidental to an indigent defendant's defense when
those services are "proper and necessary." State v. Second Jud. District
Court, 85 Nev. 241, 245, 453 P.2d 421, 423-24 (1969). For instance,
when a defendant demonstrates to the trial judge
that his sanity at the time of the offense is to be a
significant factor at trial, the State must, at a
minimum, assure the defendant access to a
competent psychiatrist who will conduct an
appropriate examination and assist in the
evaluation, preparation, and presentation of the
defense.
Ake v. Oklahoma, 470 U.S. 68, 83 (1985). Attendant to this obligation is to
provide for medical testing, including imaging, that is necessary to assist
the psychiatrist in preparing a defense. Accordingly, I disagree with the
majority's conclusionS that the district court did not abuse its discretion in
denying the motion for medical imaging to assist in preparing Hover's
defense. Hover's motion indicated that funding was available. As the
district court did not have a significant interest in assuring that funding
for indigent defendants' court-appointed expenses were protected, the
defense's failure to file a more robust pleading detailing why the expenses
were necessary and proper should not have proved fatal. Further, I am
not convinced that appellate counsel's argument that the district court
failed to order a PET scan (when an MRI scan was requested below)
should significantly undermine Hover's assertion of error on appeal. Both
scans are routinely used to diagnose neurological conditions. See Mayo
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Clinic Staff, Tests and Procedures, MRI, Definition (August 17, 2013),
available at http: / / www.mavoclinic.org / tests-procedures / mri / basics /
definition/pre-20012.903; Mayo Clinic Staff, Tests and Procedures,
Positron emission tomography (PET) scan, Definition (May 6, 2014)
available at http://www.mayoelinic.org/tests-procedures/petscan/basics/
definition / prc- 20014301. Counsel's failure to recognize a meaningful
distinction between the procedures that are outside counsel's area of
expertise should not preclude this court from meaningfully reviewing the
district court's order.
Moreover, I cannot say that the error in denying this motion
was harmless. The record does not indicate that Hover had a significant
criminal history prior to the instant offenses. Although he had abused
drugs several years before the instant offenses, the record reveals no prior
crimes of violence. Shortly before the instant spree, Hover's wife reported
that he began behaving bizarrely and she urged him to seek professional
help. He then engaged in repeated and seemingly out-of-character
episodes of brutal and callous violence. In light of this evidence, I cannot
say that the failure to permit this testing did not have a "substantial and
injurious effect or influence in determining the jury's verdict" or sentence.
Knipes v. State, 124 Nev. 927, 935, 192 P.3d 1178, 1183 (2008) (quotation
marks and citations omitted). As this psychological evidence could
undermine evidence related to Hover's ability to premeditate and
deliberate as well as mitigate his conduct, I would reverse his convictions
for first-degree murder (Counts 9 and 21), attempted murder (Count 25),
and his death sentences.
DNA analyst
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I agree with the majority that the district court abused its
discretion in prohibiting the proposed cross-examination of the State's
DNA analyst. However, I disagree with the majority's conclusion that the
error did not contribute to the verdict beyond a reasonable doubt. See
Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d 465, 476 (2008) ("If the
error is of constitutional dimension, then . . . [this court] will reverse
unless [it is shown], beyond a reasonable doubt, that the error did not
contribute to the verdict."). The expert's testimony that both Hover and
Contreras' DNA was present on a condom found at the crime scene was
the most decisive evidence of Hover's involvement in Contreras' rape and
murder. See Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557
U.S. 52, 62 (2009) ("Modern DNA testing can provide powerful new
evidence unlike anything known before."); see also Kimberly Cogdell Boles,
Misuse of DNA Evidence is not Always a "Harmless Error": DNA Evidence,
Prosecutorial Misconduct, and Wrongful Conviction, 17 Tex. Wesleyan L.
Rev. 403, 406-07 (2011) (providing that "juries are more likely to convict
when the prosecution presents DNA evidence," despite the fact that "DNA
has the same likelihood for human error as do other types of evidence"
(citations omitted)). Although there was other evidence presented that
supported the verdicts, it was not nearly as powerful as the unchallenged
DNA evidence. For example, the cell tower location evidence could not
pinpoint Hover's location at the time of the murder, nor could it even
indicate that the tower Hover's call routed through was the closest to him.
See Alexandra Wells, Ping! The Admissibility of Cellular Records to Track
Criminal Defendants, 33 St. Louis U. Pub. L. Rev, 487, 494 (2014) (noting
that "cell signals go to the tower with the strongest signal, which is not
always the cell tower geographically closest to the cell phone"). And
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Hover's jailhouse confession must be viewed with suspicion, not solely
because it is testimony of a jailhouse informant, see Russell D. Covey,
Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375,
1376-77 (2014) ("[N]o evidence is more intrinsically untrustworthy than
the allegations of a jailhouse snitch:), but also because the informant was
the victim of one of Hover's alleged crimes. The remaining evidence,
which consisted of surveillance video showing similar cars, physical
evidence that implicated Richard Freeman, a cryptic comment by Hover
about a dream, and surveillance video showing Freeman and Hover
making purchases at Wal-Mart, was not so powerful that the
unchallenged DNA evidence did not contribute to the verdicts on
Contreras' sexual assault and death. Accordingly, I would reverse Hover's
convictions for conspiracy to commit kidnapping, robbery, sexual assault,
and murder (Counts 1 through 4); burglary while in possession of a deadly
weapon (Count 5); first-degree kidnapping with the use of a deadly
weapon (Count 6); robbery with the use of a deadly weapon (Count 7);
sexual assault with the use of a deadly weapon (Count 8); murder with the
use of a deadly weapon (Count 9); and first-degree arson (Count 10).
Identification from surveillance videos and improper impeachment
I agree with the majority that the district court erred in
permitting Detective Lorson to testify, based on his observation of the
surveillance videos, that the perpetrator of the robberies was the same
individual and that the State improperly "removed the sting" of
impeachment from Pamela Lindus' testimony by introducing the facts
underlying her conviction for child molestation. But in my opinion, the
prohibited identification affected Hover's substantial rights, see Nelson v.
State, 123 Nev. 534, 543, 170 P.3d 517, 524 (2007) (reviewing un-objected
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to error for plain error affecting substantial rights), and the improper
impeachment was not harmless, see Valdez, 124 Nev. at 1189, 196 P.3d at
476. Detective Lorson and Lindus provided the only testimony that
implicated Hover in the robbery of Tohme. Tohme could not identify
Hover as the perpetrator. Further, Hover's ex-wife, who had years to
observe him and had identified him as the perpetrator in the other
surveillance videos, could not identify him as the perpetrator of the
robbery and burglary. Therefore, it was likely that Detective Lorson's
testimony strongly influenced the jury's verdict on the charges related to
the Tohme incident. See U.S. v. Gutierrez, 995 F.2d 169, 172 (9th Cir.
1993) (observing that expert testimony of a police officer may "carr[y] an
aura of special reliability and trustworthiness" (quotations omitted)). The
only remaining admissible evidence linking Hover to the Tohme robbery
was Lindus' testimony. In informing the jury that Lindus had engaged in
a prohibited sexual relationship betWeen two teenagers, the State clearly
cast Lindus and her testimony in a less objectionable light than it would
have been had jury been left with the mere fact that Lindus had been
convicted of child molestation. Therefore, I cannot conclude that inclusion
of unfairly bolstered testimony by Lindus and inadmissible identification
by Detective Lorson did not have an substantial effect on the jury's
verdicts of conspiracy to commit robbery (Count 28); burglary while in
possession of a firearm (Count 29); and robbery with the use of a deadly
weapon, victim 60 years of age or older (Count 30).
Consequently, I would reverse Hover's convictions relative to
the Contreras' kidnapping, sexual assault, and murder (Counts 1-10);
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Julio's murder (Count 21); Roberta's attempted murder (Count 25); the
Tohme robbery (Counts 28-30); and his death sentences.?
Cherry
cc: Hon. Carolyn Ellsworth, District Judge
Christopher R. Oram
Oronoz & Ericsson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
7Ialso conclude that there was a reasonable likelihood that the jury
misunderstood the moral culpability language in the mitigating
circumstances instruction. See Watson v. State, 130 Nev., Adv. Op. 76, 335
P.3d 157, 176 (2014) (Cherry and Saitta, JJ., dissenting in part).
However, as I would reverse Hover's murder convictions, it is unnecessary
to address errors that occurred during the penalty hearing.
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