# State v. Bennett > Nevada Supreme Court · December 30, 2003 · 119 Nev. 589 URL: https://www.frixlaw.com/law-library/cases/9795589 ## Case - **Full name:** The STATE OF NEVADA, Appellant/Cross-Respondent, v. EDWARD GORDON BENNETT, Respondent/Cross-Appellant - **Court:** Nevada Supreme Court - **Decided:** December 30, 2003 - **Citations:** 119 Nev. 589; 119 Nev. Adv. Rep. 63; 81 P.3d 1; 2003 Nev. LEXIS 83 - **Precedential status:** Published - **Opinion:** Dissent by Becker - **Judges:** Agosti, Gibbons, Becker, Rose, Leavitt, Maupin - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9795589 ## How later opinions describe it (automated extraction) - stating that once the movant “makes a prima facie case that summary judgment 9 should be granted, the burden shifts to the opponent to show at least a reasonable 10 doubt, rather than a slight doubt, as to the existence of a genuine issue of fact” 11 (internal quotation marks … - explaining that the materiality prong of a Batson violation requires a demonstration of a reasonable probability (or reasonable possibility if the evidence was specifically requested - explaining that withholding of favorable evidence may establish cause for raising Brady claim in an untimely and/or successive petition - explaining that "proving that the State withheld the evidence generally establishes cause, and proving that the withheld evidence was material establishes prejudice" ## Opinion text Becker, J., dissenting: I respectfully dissent from the majority’s conclusion that Bennett’s second petition for post-conviction relief was not successive and procedurally barred. Moreover, while I agree with the majority’s conclusion that Bennett is factually innocent of the “at random and without apparent motive” aggravator pursuant to Leslie v. Warden, 1 Bennett has not met the second prong of Leslie. In addition to demonstrating that the aggravator is inapplicable, Leslie requires a finding that there is a reasonable probability that, absent the invalid aggravator, the jury would not have imposed death. 2 I do not believe that the absence of the “at random and without apparent motive” aggravator would have affected the jury’s decision to impose a sentence of death. Because I conclude that the petition is procedurally barred and does not fall within the parameters of Leslie, I would reverse the judgment of the district court and reinstate the death penalty. Brady violations I concur with the majority’s conclusion that the State failed to disclose the 1988 signed statement of informant Perkins and that *613 the State can be charged with failing to disclose that the Utah police paid Jeffery Chidester $50 as an informant on four or five occasions that were unrelated to the Nevada crimes. However, I disagree with the conclusion that the State violated Brady v. Maryland 3 by not disclosing the co-defendant’s juvenile records. As to the Perkins statement, the issue is whether there is a reasonable possibility that Bennett would have been granted a new penalty hearing on the basis of the statement because a specific request for information was made under Brady. As to the informant payments, no specific discovery request was made, so the standard is whether there is a reasonable probability that a new penalty hearing would have been granted. I conclude that a request for a new penalty hearing based on newly discovered evidence is identical to the standard used for analyzing a motion to grant a new trial based upon newly discovered evidence. In Sanborn v. State, 4 we set forth the standard for granting a new trial based upon newly discovered evidence. The evidence must be: [N]ewly discovered; material to the defense; such that even with the exercise of reasonable diligence it could not have been discovered and produced for trial; non-cumulative; such as to render a different result probable upon retrial; not only an attempt to contradict, impeach, or discredit a former witness, unless the witness is so important that a different result would be reasonably probable; and the best evidence the case admits. 5 Even assuming that the Perkins statement meets all of the other criteria, it is cumulative, and I conclude that there is not a reasonable possibility that a new penalty hearing would have been granted as a result of its discovery. As to the informant payments, that evidence would have been used for impeachment or to discredit a witness. In light of the fact that the jury already heard that Chidester was an informant and was paid $32,000 in reward money, I cannot conclude that a different result would be reasonably probable and a new trial granted if the jury also learned he was paid approximately $250 as an informant in the past. This is particularly true in light of the fact that Chidester’s information regarding the crime and the location of the murder weapon was corroborated by Bennett’s fingerprints at the scene of the crime and the identification of Bennett as the individual who returned the murder weapon to a pawn shop after the murder. The same rationale applies to use of the information to impeach Officer Caldwell. For these reasons, I conclude that a new penalty hearing *614 would not have been granted and materiality was not shown under Brady. Fundamental miscarriage of justice — Leslie This case is distinguishable from Leslie. In Leslie, there was no evidence that the defendant entered the convenience store with the intent to shoot anyone. Moreover, although Leslie shot and killed the clerk, he made no attempt to kill any of the other occupants and witnesses to the robbery. Finally, unlike the instant case, this court, either on direct appeal or on post-conviction relief, struck two of the four aggravators. In contrast, Bennett is only factually innocent of one of the four aggravators. The remaining aggravators, including that he endangered more than one person, remain valid. The evidence supporting the stricken aggravator would also be admissible to support the other three aggravators. Thus, in weighing mitigating versus aggravating circumstances, the jury would still have heard evidence that Bennett and the co-defendant planned to commit robberies because they were running low on funds and that they intended to kill any witnesses. They would still have been able to consider the fact that Bennett and the co-defendant chased after a witness in the attempt to eliminate him. Since the essential evidence remains the same, I cannot conclude that there is a reasonable probability that the jury, with the same aggravating and mitigating evidence, would not have imposed death simply because the “at random and without apparent motive” aggravator was stricken. Accordingly, for the reasons set forth above, I would reverse the judgment of the district court and reinstate the death penalty. 118 Nev. 773 , 59 P.3d 440 (2002). Id. at 780 , 59 P.3d at 445 . 373 U.S. 83 (1963). 107 Nev. 399 , 812 P.2d 1279 (1991). Id. at 406 , 812 P.2d at 1284-85 (footnote omitted). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795589. Public record. Not legal advice.