Hall (Bryan) v. State (Death Penalty-Direct) ( 2015 )

 The State sought the death penalty based on two aggravating
circumstances: (1) Hall had been previously convicted of a felony involving
the use or threat of violence (battery resulting in substantial bodily harm)
and (2) the murder involved torture and/or mutilation of the victim. The
prior-violent-felony aggravating circumstance was supported by evidence
of Hall's 2003 conviction for beating his pregnant ex-wife. The
torture/mutilation aggravating circumstance was supported by evidence of
Flamm's injuries and the manner in which Hall killed him As other
evidence in aggravation, see NRS 175.552(3), the prosecution introduced
evidence of Hall's juvenile criminal history (including a conviction for
sexual battery and false imprisonment of a fourteen-year-old boy, a
citation for petty larceny, a report that he was a runaway, and a physical
assault on his mother) and his adult criminal history (most notably
several physical altercations and a sexual assault involving his ex-wife, a
violation of a temporary restraining order, and an assault against a man
with whom he once had a sexual encounter). The prosecution also
presented victim-impact testimony from Flamm's father, mother,
grandmother, and fiancee and letters from Flamm's brothers. The
witnesses described Flamm's positive character and commented on the
devastation and pain they felt as a result of his death.
In mitigation, Hall presented evidence from his wife, children,
and mother describing their support and desire to have a continuing
relationship with him. His ex-wife described Hall's relationship with their
daughter. He also presented evidence of life at Ely prison, and two fellow
inmates testified about positive aspects of his character. Finally, Hall
made a statement in allocution, telling the jury that no one has lived life
worse than he has and that whatever the jury decided, he would use the
time he has left to help people and positively influence other inmates. He
also apologized for the pain he caused.
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The jury found both aggravating circumstances alleged, and at
least one juror found the following mitigating circumstances: (1) accepted
the role as father to his two stepdaughters; (2) maintained a fatherly role
with his daughter after his divorce from her mother; (3) maintains a
fatherly relationship with his daughter although incarcerated; (4), (5)
maintains a fatherly relationship with his stepdaughters although
incarcerated; (6) maintains a relationship with his mother although
incarcerated; (7) wishes to maintain the role of father and husband while
incarcerated; (8) wishes to maintain a relationship with his mother while
incarcerated; and (9) has a mother who continues to love and support him.
The jury found that the aggravating circumstances outweighed the
mitigating circumstances and imposed death. This appeal followed.
Sufficiency of the evidence
Hall argues that the evidence is insufficient to support his
first-degree murder conviction based on either of the two theories that the
jury unanimously found—willful, deliberate, and premeditated murder
and murder perpetrated by lying in wait.' To uphold the murder
'Hall also argues that insufficient evidence supports a first-degree
murder conviction based on felony murder. Because, as explained below,
there is sufficient evidence supporting the theories of premeditated
murder and lying in wait, see Rhyne v. State, 118 Nev. 1, 10, 38 P.3d 163,
169 (2002); Thomas v. State, 114 Nev. 1127, 1145, 967 P.2d 1111, 1123
(1998), we need not address his challenge to the felony-murder theory. To
the extent he challenges his robbery conviction, we conclude that sufficient
evidence supports that conviction. In particular, the evidence shows that
money that Flamm likely collected in tips and other personal items had
been taken from him His wallet and other personal items that were
contained in his waiter's apron were found underneath bushes near his
body. His pants pockets were turned inside out, blood was found on the
inside of one pocket, Flamm and Hall could not be excluded as the source
of blood found on a dollar bill located some distance from the crime scene,
continued on next page . . .
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conviction, the evidence presented at trial must establish guilt beyond a
reasonable doubt as determined by a rational trier of fact. Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State, 114 Nev. 378,
381, 956 P.2d 1378, 1380 (1998). This court must view the evidence in the
light most favorable to the State, Jackson, 443 U.S. at 319, and must
"respect the exclusive province of the fact finder to determine the
credibility of witnesses, resolve evidentiary conflicts, and draw reasonable
inferences from proven facts," United States v. Hubbard, 96 F.3d 1223,
1226 (9th Cir. 1996); accord McNair v. State, 108 Nev. 53, 56, 825 P.2d
571, 573 (1992) ("The established rule is that it is the jury's function, not
that of the court, to assess the weight of the evidence and determine the
credibility of witnesses.").
Willful, deliberate, and premeditated murder
Hall argues that the prosecution failed to prove that the
murder was willful, deliberate, and premeditated because the evidence,
namely his testimony, shows that he became so enraged by Flamm's
comments about Paulsen that he attacked Flamm in a rage. 2
. . . continued
and Flamm's DNA was found on another dollar bill located near the crime
scene.
2 Hallargues in his opening brief that the district court erred by not
admitting evidence that Flamm was under the influence of hydrocodone at
the time of his death, which he claims would have explained why Flamm
was uninhibited and uttered the remarks that provoked the fight.
However, Hall concedes in his reply brief that the district court admitted
evidence showing that hydrocodone was present in Flamm's body.
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We have observed that "[generally, the State proves
premeditation through circumstantial evidence, including the nature and
extent of the injuries." Valdez v. State, 124 Nev. 1172, 1203, 196 P.3d 465,
485-86 (2008). Here, Hall slammed Flamm's head against the patio
several times, used a knife that he brought to the scene to stab and slice
Flamm's neck multiple times, struck the back of Flamm's head with the
lid from a five-gallon paint bucket, and strangled Flamm. The nature and
extent of Flamm's injuries support an inference that the killing was
willful, deliberate, and premeditated. See DePasquale v. State, 106 Nev.
843, 848, 803 P.2d 218, 221 (1990) (upholding finding of premeditation
considering the "brutal and extensive nature" of victim's injuries, which
defendant inflicted by stabbing victim with sharp, pointed instrument and
beating victim with his hands and fists). Although the extensive injuries
could suggest some level of passion or rash impulse, other evidence
suggests the contrary. In particular, during the attack, Hall left the scene,
grabbed a rock, returned to the scene, and continued to beat Flamm. This
break in the attack further supports an inference of deliberation and
premeditation. See Browne U. State, 113 Nev. 305, 315, 933 P.2d 187, 193
(1997) (concluding that evidence showing that defendant briefly stopped
beating victim and then resumed beating and continued beating after
victim stopped moving was sufficient to support finding of premeditation).
The jurors heard Hall's testimony, and it was within their exclusive
province to determine his credibility and what weight to give his
testimony. Because there was evidence from which the jury could
reasonably infer that the killing was willful, deliberate, and premeditated,
Hall's argument lacks merit.
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Lying in wait
Hall argues that insufficient evidence supports a finding that
the murder was committed by lying in wait. He points to his testimony
that he was waiting on the patio hoping that an acquaintance would show
up and give him a ride home and argues that the prosecution presented no
evidence suggesting that he was waiting there to harm Flamm.
"The elements necessary to constitute lying in wait are
watching, waiting, and concealment from the person killed with the
intention of inflicting bodily injury upon such person or of killing such
person." Moser v. State, 91 Nev. 809, 813, 544 P.2d 424, 426 (1975)
(quoting People v. Atchley, 346 P.2d 764, 772 (1959)). We conclude that
the evidence is sufficient to support a lying-in-wait theory. In particular,
video evidence shows Hall milling around for a considerable time in the
area where employees from various restaurants typically exited the
building after their shifts, near where Flamm's body was found. In
addition, the evidence showed that Hall could have arranged other
transportation home and was carrying a knife The jury could reasonably
infer from this evidence that he was waiting for Flamm with the intent to
inflict bodily harm or kill him
Evidence related to the victim
Hall argues that the district court erred by not allowing him to
introduce evidence that Flamm was the kind of person who made
inappropriate comments, which would have corroborated his theory of
defense that Flamm made an offensive comment that sent him into a rage.
At trial, Hall represented that a co-worker of Flamm's would
testify that "he was the kind of guy who could make a smart aleck
comment that might be considered inappropriate." He argued that the
testimony was admissible on several grounds, including that it was proper
character evidence under NRS 48.045(1)(a), (b). Evidence of a person's
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character or a particular character trait is inadmissible to show that the
person acted in conformity therewith on a particular occasion except in
one circumstance relevant here: "Evidence of the character or a trait of
character of the victim of the crime offered by an accused . . . and similar
evidence offered by the prosecution to rebut such evidence." NRS
48.045(1)(b). Hall's defense was that Flamm provoked the attack by
making a highly offensive comment about Paulsen. Evidence suggesting
Flamm had a reputation for making "smart aleck comment[s] that might
be considered inappropriate" does not clearly equate to a character trait of
making the kind of offensive or provocative comments that Hall claims
provoked him into a fit of rage. See Roseberry u. State, 553 S.E.2d 589,
591 (Ga. 2001) ("Evidence that impugns a victim's character cannot be
admitted unless it has some factual nexus with the conclusion for which it
is being offered."). But even assuming that the evidence met this
requirement and therefore was admissible under NRS 48.045(1)(b), no
prejudice resulted from the district court's ruling for two reasons. First,
Flamm's fiancee testified on cross-examination that Flamm sometimes
made inappropriate comments in an effort to be funny, so the jury heard
testimony similar to what was excluded and from someone very close to
Flamm. Second, because the evidence overwhelmingly supports a finding
of first-degree murder and the jury rejected lesser offenses based on Hall's
testimony, the omission of the co-worker's testimony did not have a
substantial and injurious effect in determining the jury's verdict. See
Kotteakos v. United States, 328 U.S. 750, 776 (1946) (reviewing
nonconstitutional error to determine whether error "had substantial and
injurious effect or influence in determining the jury's verdict").
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Future dangerousness evidence
Hall contends that the district court erred by allowing the
prosecution to introduce psychological evidence to support its claim of
future dangerousness.
At the penalty hearing, Hall objected to the prosecution's
anticipated introduction of psychological reports prepared during Hall's
juvenile detention as a result of his conviction for sexual battery and false
imprisonment of a 14-year-old boy. He argued that anything in those
records that purported to predict his future dangerousness was
inadmissible under Redmen v. State, 108 Nev. 227, 234, 828 P.2d 395, 400
(1992) (concluding that prosecution was permitted to introduce evidence
and make argument regarding defendant's future dangerousness but that
"psychiatric evidence purporting to predict the future dangerousness of a
defendant is highly unreliable and, therefore, inadmissible at death
penalty sentencing hearings"), overruled on other grounds by Alford v.
State, 111 Nev.. 1409, 906 P.2d 714 (1995), and Greene v. State, 113 Nev.
157, 179, 931 P.2d 54, 68 (1997) (reaffirming Redmen). The psychological
evidence at issue in Red men and Greene appears to have been prepared for
use at trial, whereas the psychological reports at issue here were prepared
many years ago for a juvenile court's evaluation of Hall's progress with
psychological issues and determination as to whether he was suitable for
release from juvenile detention. The evidence at issue here does not
implicate the concerns about reliability expressed in Red men and Greene
because nearly eight years have passed since the last evaluation and Hall's
conduct during that time, which includes Flamm's murder and multiple
instances of violence, provides a basis for evaluating the reliability of the
prior evaluations. Accordingly, we conclude that no relief is warranted on
this claim.
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Absence of jury admonishment
Hall argues that the district court erred by not sua sponte
instructing the jury to disregard the penalty hearing testimony from
Flamm's fiancée, wherein she asked the jurors to put themselves in the
shoes of the victim's family. Out of the jury's presence, Hall objected to
the witness's remark and the district court sustained the objection, but
Hall did not request a curative instruction or other relief. Hall has not
preserved this issue for our review, see Rice v. State, 113 Nev. 1300, 1311,
949 P.2d 262, 269 (1997), abrogated on other grounds by Rosas v. State,
112 Nev. 1258, 147 P.3d 1107 (2006), nor has he shown that the isolated
remark prejudiced him, Leonard v. State, 114 Nev. 1196, 1213, 969 P.2d
288, 299 (1998).
Prosecutorial misconduct
Hall points to four comments during the penalty hearing
closing argument that he claims amount to prosecutorial misconduct.
Because he did not object to any of the challenged comments below, we
review the comments for plain error affecting his substantial rights.
Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008).
First, Hall argues that the prosecutor "attacked" him for
testifying to his account of the events that would support a verdict of
voluntary manslaughter. 3 Arguably, the challenged comments chastised
sHall challenges the following passage from the prosecutor's rebuttal
closing argument:
Let me talk about the character of the defendant
in the context of the most important part of this
case, Brad Flamm. You heard unequivocally and
from many witnesses about Brad Flamm's
character and personality Yet what cannot be
lost in your decision, and what's so patently
continued on next page.
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Hall for testifying to a fictional account of the murder that was intended to
be traumatic or hurtful to Flamm's family, who were present in the
courtroom. But even if the comments fell outside the bounds of
permissible argument, we conclude that the error was not so egregious as
to constitute plain error affecting Hall's substantial rights.
Second, Hall contends that the prosecutor improperly argued
for a death sentence because Hall admitted killing Flamm but did not
show sufficient remorse. The challenged comments suggested to the jury
that Hall's claims of remorse were not credible in light of his lengthy
history of violence against family members, his ex-wife, a 14-year-old boy,
and a man with whom he once had a sexual encounter, all of which
showed a level of callousness and indifference unbefitting of a life-without-
parole sentence. Because Hall placed his remorse at issue by apologizing
for his actions and the prosecutor's argument merely challenged the
. . continued
obvious but never stated in the arguments before
you this morning is that man, the defendant took
that stand under oath and told you this:
Brad came up to him, his face lit up, and then he
said, "Come over here. I have something serious
to tell you. Are you sure it's your kid? I fucked
her so good I thought she'd never get over me. I
fucked her so good she should have had twins"
That wasn't something that happened in the past.
That's not something that he did to his family, to
his mother, to his wife, to his girlfriend. He did
that in this courtroom to you in front of the Flamm
family. Think about that, about the character of
the defendant.
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sincerity of that remorse, we are not convinced that the challenged
comments were improper. Therefore, Hall has not shown plain error.
Third, Hall argues that the prosecutor improperly argued that
justice required a death sentence in this case, implying that the jury had a
duty to return the harshest punishment. It would be improper for the
prosecutor to argue that the jury had a duty to return a death sentence.
See Evans v. State, 117 Nev. 609, 633, 28 P.3d 498, 515 (2001) (observing
that prosecutor cannot suggest that jury has duty to decide in particular
way); see also United States v. Mandelbaum, 803 F.2d 42, 44 (1st Cir.
1986). But the prosecutor made no such argument here. Instead, the
prosecutor merely argued that some cases, like this one, deserve the
harshest available sentence. As we observed in Williams v. State, 113
Nev. 1008, 1022, 945 P.2d 438, 446 (1997), amended on other grounds by
Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), "the prosecutor is
permitted to argue that the only appropriate penalty is death."
Accordingly, Hall has not demonstrated plain error.
Fourth, Hall contends that the prosecutor improperly engaged
in a variation of the holiday argument by suggesting that Flamm's family
will never enjoy phone calls and letters from Flamm. We have held that
"arguments that a family will have no more holidays with the murder
victim" are improper because they serve no purpose other than to arouse
the jurors' emotions and "encourage [them] to impose a sentence under the
influence of passion." Hernandez v. State, 118 Nev. 513, 526, 50 P.3d
1100, 1109 (2002); see Williams v. State, 103 Nev. 106, 109, 734 P.2d 700,
702 (1987). Although Flamm's father's testimony that he will miss
Flamm's weekly phone calls may evoke sympathy or compassion,
references to phone calls and letters are unlikely to arouse the heightened
emotions that concerned this court regarding holiday arguments.
Accordingly, Hall has not shown plain error.
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Mitigation instruction
Hall contends that the district court erred by instructing the
jury that it would hear evidence about mitigating circumstances relative
to the offense, improperly suggesting that mitigating circumstances must
relate to the offense. His complaint relates to instruction 7, which
advised, "In the penalty hearing, evidence may be presented concerning
aggravating and mitigating circumstances relative to the offense, and any
other evidence that bears on the Defendant's character." Because Hall did
not object to the instruction, this claim is reviewed for plain error affecting
his substantial rights. NRS 178.602; Green v. State, 119 Nev. 542, 545, 80
P.3d 93, 95 (2003).
Jury instructions must be read together, not judged in
isolation. See Greene v. State, 113 Nev. 157, 167-68, 931 P.2d 54, 61
(1997), receded from on other grounds by Byford ix State, 116 Nev. 215,
994 P.2d 700 (2000); accord Cupp v. Naughten, 414 U.S. 141, 146-47
(1973). In addition to the challenged instruction, the jury was told that
"[m]itigating 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, which might serve as a basis for a sentence less than death"
and that the jury "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." That instruction
advised the jury that it had to consider Hall's proffered mitigating
circumstances and acknowledged the breadth of circumstances that may
be considered in mitigation. And, notably, the instructions in this case did
not use the "moral culpability" language recently addressed by this court
in Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d 157 (2014); rather, the
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instructions used in this case are similar in substance to language that we
suggested in Watson, 335 P.3d at 174 n.9.
In addition to considering the jury instructions together, we
must also consider the totality of the proceeding in evaluating the effect of
the challenged instruction. See Cupp, 414 U.S. at 147 (explaining that
evaluating the effect of an instruction involves consideration of all of the
instructions and the related components of the proceeding, such as
testimony of witnesses, argument of counsel, and receipt of exhibits in
evidence). Here, it is not reasonably likely that the jury thought that it
could not consider the mitigation evidence that had been presented, most
of which focused almost exclusively on Hall's character and background.
The jury's verdict further supports the conclusion that the challenged
instruction by itself did not so infect the entire penalty hearing with a
misunderstanding of the scope of mitigation evidence that the resulting
death sentence violates due process. In particular, all nine mitigating
circumstances found in this case related to Hall's relationships with his
daughter, stepdaughters, wife, and mother, demonstrating that the jurors
understood the broad scope of mitigation.
Considering all of the instructions related to mitigation and
the totality of the penalty proceeding, we conclude that Hall has not
demonstrated plain error with respect to instruction 7 given during the
penalty hearing.
Torture/ mutilation aggravating circumstance
Hall argues that insufficient evidence supports the
torture/mutilation aggravating circumstance. See NRS 200.033(8). In
this, he argues that "all three alleged acts—pounding Flamm's head
against the concrete, hitting his head with a knife, and slitting his throat
with a knife—were intended to kill Flamm," and did not suggest a sadistic
intent to cause harm beyond the act of killing itself. He further notes that
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Flamm was a "much larger man" and he "was caught up in the passion of
the moment and was trying to kill a powerful opponent."
Addressing the torture aspect first, we have said that torture
requires an intent to inflict pain beyond the killing itself. See Domingues
v. State, 112 Nev. 683, 702 n. 6, 917 P.2d 1364, 1377 n. 6 (1996). We have
upheld an aggravating circumstance based on torture where numerous
stab wounds were inflicted on the victims. E.g., Wesley v. State, 112 Nev.
503, 515, 916 P.2d 793, 801 (1996) (concluding that defendant tortured
victims by stabbing father 18 times, chipping father's skull, and
stepmother 36 times). But see Chappell v. State, 114 Nev. 1403, 1410, 972
P.2d 838, 842 (1998) (concluding that insufficient evidence supported
aggravating circumstance of depravity of mind and torture where victim
was severely beaten and stabbed 13 times). Here, Hall inflicted numerous
blunt force blows to Flamm's head with a rock and paint bucket lid and by
slamming Flamm's head against concrete—resulting in a depressed skull
fracture and a collapsed right eye. Hall inflicted three significant stab
wounds to Flamm's neck and strangled him. Flamm also suffered a
fracture of his thyroid cartilage, multiple bruises, and lacerations to his
face. Hall testified that after slamming Flamm's head against the patio
several times, he believed that Flamm was dead but continued to beat,
strangle, and stab him. He also testified (consistent with the video
evidence) that he left the scene during the attack, walked some distance,
picked up a rock, returned to the scene and beat Flamm with the rock. We
conclude that based on this evidence a rational juror could reasonably find
that Hall intended to inflict pain beyond the killing itself.
As to mutilation, that requires something beyond the act of
killing and means to cut off or permanently destroy a limb or essential
part of the body or to cut off or alter radically so as to make imperfect,
Smith v. State, 114 Nev. 33, 39, 953 P.2d 264, 267 (1998); Browne v. State,
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113 Nev. 305, 316, 933 P.2d 187, 193 (1997). We have upheld this
aggravating circumstance where the victims have suffered stab wounds
that radically altered an essential body part, see McConnell v. State, 120
Nev. 1040, 1070-71, 102 P.3d 606, 625 (2009) (concluding that mutilation
aggravating circumstance was proved where defendant dug into victim's
torso/abdomen with knife and then plunged knife into it because those
actions went beyond the act of killing and caused serious abuse that
altered radically essential part of body), and where multiple forces were
used to kill or mutilate the victim, see Parker v. State, 109 Nev. 383, 395,
849 P.2d 1062, 1070-71 (1993) (sufficient evidence of mutilation and
depravity of mind where defendant repeatedly smashed victim's head with
a rock, destroying her brain, stabbed her once (post-mortem), and wrapped
cords around her neck). Flamm suffered multiple blunt force blows to his
head with a rock and paint bucket lid and having his head slammed
against concrete—resulting in a depressed skull fracture and a collapsed
right eye. He also suffered three significant stab wounds to the neck,
fracture of his thyroid cartilage, and multiple bruises and lacerations to
his face. His lip was almost torn off by blunt force. The medical evidence
suggests that Flamm's face and head were damaged, and Flamm's father
testified that Flamm was cremated rather than buried considering the
condition of his body. We conclude that based on this evidence a rational
juror could reasonably find that Hall's actions went beyond the killing
itself and altered radically Flamm's head and neck, which are essential
parts of the body.
Mandatory appellate review of the death sentence
NRS 177.055(2) requires that we review every death sentence
and consider whether (1) sufficient evidence supports the aggravating
circumstances found, (2) the verdict was rendered under the influence of
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passion, prejudice, or any other arbitrary factor, and (3) the death
sentence is excessive.
First, the jury found two aggravating circumstances—(1) Hall
had a prior-violent-felony conviction based on his conviction for battery
with substantial bodily harm and (2) the murder involved torture and/or
mutilation. The aggravating circumstances were proven beyond a
reasonable doubt by evidence that Hall had a prior conviction for battery
with substantial bodily harm and by evidence regarding Flamm's injuries
and the manner in which Hall killed him
Second, nothing in the record indicates that the jury acted
under any improper influence in imposing death. Of particular relevance,
at least one juror found several mitigating circumstances related to Hall's
relationships with his daughters and mother, which was the cornerstone
of his mitigation case. We therefore conclude that the death sentence was
not imposed under the influence of prejudice, passion, or any arbitrary
factor.
Third, when considering whether the death sentence is
excessive, this court asks whether "the crime and 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 Hall inflicted trauma to Flamm's head using
multiple instruments. He ceased the attack, retrieved a rock some
distance from the scene, and returned to continue the attack. Much of the
trauma Hall inflicted was done after he believed that Flamm was dead.
Additionally, Hall has a significant history of violent offenses or
encounters as a juvenile and adult. Considering the circumstances of the
offense, Hall's violent history, and the mitigating evidence, we conclude
that the crime and the defendant are of the class and kind that warrant
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the imposition of the death penalty and therefore the death sentence is not
excessive.
Having considered Hall's arguments and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED. 4
4A; , C.J.
Hardesty
Saitta
J.
CHERRY, J., dissenting:
I dissent. I question whether the evidence establishes that
Hall committed first-degree murder in light of his testimony that his
attack on Flamm was provoked. However, I acknowledge that matters of
credibility rest with the jury. See Hutchins v. State, 110 Nev. 103, 107,
4 Hallcontends that cumulative error warrants reversal of his
convictions and sentence. Because he has shown only one potential
error—the district court's refusal to allow evidence related to Flamm's
character—there is nothing to cumulate. United States v. Allen, 269 F.3d
842, 847 (7th Cir. 2001) ("If there are no errors or a single error, there can
be no cumulative error.").
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867 P.2d 1136, 1139 (1994); McNair v. State, 108 Nev. 53, 56, 825 P.2d
571, 573 (1992). I further acknowledge that Hall has not pointed to any
error that mandates reversal of the judgment of conviction. Nevertheless,
I am compelled to express my view that this murder does not call for the
death penalty. The United States Supreme Court has recognized that the
death penalty is reserved for those defendants who are "the worst of the
worst." See Kansas v. Marsh, 548 U.S. 163, 206 (2006) (observing that
"within the category of capital crimes, the death penalty must be reserved
for 'the worst of the worst"); Roper v. Simmons, 543 U.S. 551, 568 (2005)
("Capital punishment must be limited to those offenders who commit 'a
narrow category of the most serious crimes' and whose extreme culpability
makes them the most deserving of execution" (quoting Atkins v. Virginia,
536 U.S. 304, 319 (2002))); Furman v. Georgia, 408 U.S. 238, 306 (1972)
("The penalty of death differs from all other forms of criminal punishment,
not in degree but in kind. It is unique in its total irrevocability. It is
unique in its rejection of rehabilitation of the convict as a basic purpose of
criminal justice. And it is unique, finally, in its absolute renunciation of
all that is embodied in our concept of humanity." (Stewart, J.,
concurring)); see also Woodson v. North Carolina, 428 U.S. 280, 296 (1976)
(observing that "under contemporary standards of decency death is viewed
as an inappropriate punishment for a substantial portion of convicted
first-degree murderers"). All murders are horrible, and Flamm's murder
is no exception. But that is not enough. The evidence suggests that this
murder resulted from an exchange of words that spiraled out of control,
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not a cold, calculated murder. On the continuum of horrific murder cases,
this case does not qualify as the "worst of the worst." Therefore, I would
set aside the death sentence and impose a sentence of life in prison
without the possibility of parole. See NRS 177.055.
Cherry
cc: Hon. Michelle Leavitt, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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OF
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19
(0) 1947A ,9(1r344