Davis v. State

Rose, J.,

with whom Springer, J., agrees,

concurring:

I am concurring because the performance of Roger Davis’ (Davis) counsel was deficient in two respects, but the result of the trial would have been the same even if the errors had not been made. Therefore, reversal is not mandated pursuant to Strickland v. Washington, 466 U.S. 668 (1984).

The two errors I believe defense counsel for Davis made at trial were that (1) no objection was lodged to the prosecutor’s improper reference to Davis’ refusal to take a lie detector test, and (2) defense counsel did not request an instruction delineating the difference between a life with and life without the possibility of parole sentence pursuant to Petrocelli v. State, 101 Nev. 46 , 692 P.2d 503 (1985). 1

During closing argument, while paraphrasing appellant’s statement from the videotape, the prosecution advised the jury of appellant’s refusal to follow through with the test:

“I told her to get out, and then I pulled the coil wires. . . . Then I passed out. She was sitting in the pickup when I saw her. She shot herself. The gun was on the table in the house.” Demands a lie detector test. He was offered one. He didn’t take it.

(Emphasis added.)

At another point in his summation, the prosecutor quoted *609 appellant’s statement from the videotape: “He keeps demanding, he says — this is his words, ‘Lie detector the hell out of me.’ He was offering.”

Appellant raised the impropriety of these statements on direct appeal. In dismissing that appeal, we noted defense counsel’s failure to object to the polygraph references. Counsel’s failure to object meets the first-part test for ineffective assistance of counsel established in Strickland . Defense counsel’s failure to object to the prosecutor’s remarks fell below a reasonable standard of representation.

Evidence of a criminal defendant’s refusal to take a polygraph test is in the nature of a comment on the defendant’s exercise of his fifth amendment right against self-incrimination and is inadmissible. Santillanes v. state, 102 Nev. 48, 51 , 714 P.2d 184, 186 (1986). The facts presented by this appeal are very similar to those found in Santillanes. During the taking of a voluntary statement by police, Santillanes offered to take a lie detector test to corroborate his statement. He subsequently refused to follow through with this offer. At his trial for murder, the court, over objection, admitted testimony concerning Santillanes’ offer and subsequent failure to take a polygraph test. The prosecutor commented on this testimony in his closing remarks. This court found that evidence of the defendant’s offer and failure to take a polygraph, and the prosecution’s comments about it, constituted error. This holding should mandate that we also find the prosecutor’s remark error and failure to object to it ineffective representation.

Counsel failed to request a Petrocelli instruction. The majority opinion does not find error in this because it concludes that such an instruction is limited to cases where the death penalty is in issue. I disagree. The purpose of the Petrocelli instruction is to give the jury some idea of the real meaning of the penalty it is to impose on a defendant. It is a common belief by the populous that a prisoner sentenced to life does not actually stay in prison for his or her entire existence, and I am sure jurors speculate about what life with or life without the possibility of parole actually means in terms of years to be served. In fact, in Petrocelli we expressly stated that the jury should take into account whether parole for the defendant will be considered at some future date.

Petrocelli also relies upon Serrano v. State, 84 Nev. 676 , 447 P.2d 497 (1968), contending that a jury should not consider possible future modifications of its sentence. In Serrano , and again in Summers v. State, 86 Nev. 210 , 467 P.2d 98 (1970), however, we explicitly held that the determination of whether parole should be considered at some future date is within the province of the jury.

*610 101 Nev. at 56 , 692 P.2d at 510 . Apparently, the majority wants the jury to consider the future possibility of parole, but to do it by speculation rather than with the aid of a concrete instruction as to when parole would be possible.

While the giving of a Petrocelli instruction may not be as compelling in a non-capital case when the decision between life with or life without parole is being made, the reasons for giving it remain the same — to prevent jury speculation and to give the jury an idea of what is meant by the actual sentences to be considered. When a jury is making the decision between life with and life without the possibility of parole, the difference of at least ten calendar years in prison is usually in the balance.

Although I believe defense counsel was ineffective, I do not believe the result would have been different had the errors not been made. While improper, the reference to the defendant’s refusal to take a lie detector test was only made in passing, and the prosecutor did not dwell on that point. Additionally, there is abundant evidence to establish the fact that Davis murdered the victim, and his claim that the victim inflicted the mortal wounds on herself was completely discredited. There is no indication in the record to show that the jury wavered between possible sentences, and no request for a more specific instruction was made by the jury. I believe the result would have been the same even if a Petrocelli instruction had been given. Therefore, the second part of the Strickland case is not met. For this reason, I concur in the affirmance of this case.

Any Petrocelli instruction should be updated to reflect the current law that a defendant sentenced to life without the possibility of parole is not eligible for parole until he or she has served twenty calendar years. See Nev. Const, art. 5, § 14(2); Smith v. State, 106 Nev. 781 , 802 P.2d 628 (1990).