Petition for Writ of Certiorari — Thomas Richardson, Petitioner v. Nevada

An unpublish d order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.

IN THE SUPREME COURT OF THE STATE OF NEVADA

THOMAS RICHARDSON,

Appellant,

vs.

THE STATE OF NEVADA,

Respondent.

No. 54951

FILED

NOV O9 2012

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction in a death

penalty case.

Eighth Judicial District Court, . Clark County; Michelle

Leavitt, Judge.

Appellant Thomas Richardson was convicted of multiple

offenses related to the robbery and murder of Steve Folker and Estelle

Feldman at Feldman's home in Las Vegas. The State presented evidence

that Richardson and his girlfriend's 18-year-old son, Robert Dehnart,

agreed to murder the victims as part of a scheme to rob Folker and that

Richardson struck the victims repeatedly with a hammer.

A jury

convicted Richardson of conspiracy to commit murder, two counts of firstdegree murder with the use of a deadly weapon, burglary while in

possession of a deadly weapon, conspiracy to commit robbery, and robbery

with the use of a deadly weapon and sentenced him to death for each

murder.

On appeal, Richardson raises issues related to the guilt and

penalty ph~ses of trial.

Guilt-phase issues

Richardson argues that the State presented insufficient

evidence to the grand jury to sustain his indictment and that there was

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insufficient evidence adduced at trial to sustain his convictions. He also

contends that the district court ruled erroneously on matters related to (1)

the defense's closing arguments, (2) the admission of evidence, (3) jury

instructions, and (4) prosecutorial misconduct.

Sufficiency of the indictment

Richardson argues that the State presented insufficient

evidence to the grand jury to sustain his indictment as evidenced by the

failure of the justice court to bind him over for trial at his preliminary

hearing.

He further contends that the State improperly presented the

case against both he and his codefendant, who had already been bound

over, in order to elicit evidence that would have been inadmissible hearsay

against only Richardson. We conclude that these arguments lack merit.

The fact that the jury found Richardson guilty beyond a reasonable doubt

belies his claim that there was insufficient evidence to support the

indictment. See United States v. Mechanik, 475 U.S. 66, 70 (1986) (any

error in grand jury proceedings harmless where defendants found guilty

beyond a reasonable doubt at trial); Lisle v. State, 114 Nev. 221, 224-25,

954 P.2d 744, 746-77 (1998) (citing Mechanik). Contrary to Richardson's

assertions, the fact that a justice of the peace found that the evidence was

insufficient to bind him over to the district court is not de facto proof that

the evidence later presented to the grand jury was insufficient to support

the indictment.

See NRS 178.562(2) (authorizing prosecutor to seek

indictment after dismissal of prior complaint). Further, the State was not

barred from seeking an indictment against Dehnart merely because it had

already succeeded in having him bound over. See Sheriff v. Dhadda, 115

Nev. 175, 183-8,4, 980 P.2d 1062, 1067 (1999). Therefore, the district court

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did not abuse its discretion in denying Richardson's motion to dismiss the

indictment. See Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54 (2008).

Sufficiency of the evidence

Richardson argues that there was insufficient evidence

produced at trial to sustain his convictions.

He asserts that the State

failed to produce sufficient evidence to corroborate Dehnart's testimony

about Richardson's involvement in the crime. We disagree.

At trial, Dehnart testified that he and Richardson traveled to

Las Vegas to murder and rob Folker. When they realized that Folker was

staying with Feldman, they agreed to kill her as well. Dehnart testified

that after arriving in Las Vegas, he, Richardson, and Folker ran several

errands, which included trips to Bank of America, Home Depot, and Taco

Bell. To corroborate this testimony, the State introduced a receipt and

surveillance video from Taco Bell, where the three men ate dinner, and a

sales record from Home Depot, where Dehnart purchased the murder

weapon. Investigators also recovered Dehnart's prints at Feldman's home

and identified Richardson's hat in the room in which Folker was beaten to

death.

Other evidence showed that Richardson had given $275 to his

girlfriend, Kim Ross, to deposit shortly after the murders. When he and

Dehnart were questioned, Richardson denied ever going to Las Vegas and

discouraged Dehnart from talking to the police. In addition, recorded calls

from the jail indicated that Richardson attempted to establish an alibi for

the day of the murders and had some knowledge of the contents of Folker's

truck. We conclude that Dehnart's testimony is sufficiently corroborated

pursuant to NRS 175.291(1), see Cheatam v. State, 104 Nev. 500, 504-05,

761 P.2d 419, 422 (1988) (concluding that corroborating evidence "need not

in itself be sufficient to establish guilt, and it will satisfy [NRS 175.291] if

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it merely tends to connect the accused to the offense"), and that

substantial evidence supports the jury's verdict; therefore, we will not

disturb the jury's verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d

20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573

(1992).

Closing argument

Richardson

argues

that

the

district

court

improperly

prevented defense counsel from arguing that, aside from Dehnart's

testimony, the evidence did not place him at the home during the murders.

He contends that the argument was consistent with the physical evidence

and a theory that Dehnart was lying about Richardson's involvement in

order to secure favorable treatment from the State. 1

We conclude that the district court abused its discretion. See

Glover v. Dist. Ct., 125 Nev. 691, 704, 220 P.3d 684, 693 (2009) (providing

that this court reviews the latitude allowed counsel in- closing arguments

for abuse of discretion).

As forensic evidence did not contradict the

argument and Richardson's statements to the police supported the

argument, he should have been allowed to argue that he left for home

after parting with Folker and Dehnart at the trailer. See id. at 705, 220

P.3d at 694 ("'[D]efense attorneys must be permitted to argue all

reasonable inferenc~s from the facts in the record."' (quoting U.S. v.

1Richardson

asserts that the State was permitted to make similar

inferential leaps in its arguments. We conclude that the State did not

benefit from more latitude in its argument or respond to arguments that

Richardson was prevented from making. The State's argument merely

responded to his general argument that Richardson did not participate in

the murders. Further, the State's argument was supported by the

evidence.

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Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992)); see also United States v.

Sawyer, 443 F.2d 712, 713 (D.C. Cir. 1971) (providing district court abuses

discretion when it "prevents defense counsel from making a point essential

to the defense"). However, the error was harmless beyond a reasonable

doubt for two reasons. See Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d

465, 4 76 (2008) (providing that where the error is constitutional, this court

"will reverse unless the State demonstrates, beyond a reasonable doubt,

that the error did not contribute to the verdict"). First, Richardson was

able to make a general argument that absent Dehnart's testimony, no

evidence placed him in the home and no evidence placed him in Las Vegas

after the trip to Taco Bell.

testimony

was

corroborated

Second, as discussed above, Dehnart's

other

on

matters

and

Richardson

demonstrated consciousness of guilt by trying to fabricate an alibi.

Therefore, the error did not affect the outcome of trial.

Failure to preserve evidence

Richardson contends that the State's failure to collect and

preserve the "Autoclub 500" hat observed at the crime scene and the

district court's refusal to give a negative inference instruction violated his

right to due process. He contends that police officers acted in bad faith,

and that even if they did not act in bad faith, he is still entitled to relief.

We conclude that Richardson failed to show a due process

violation from the State's failure to collect the hat for two reasons. First,

he did not demonstrate that, had the hat been available to the defense, the

result of the proceedings would have been different. See Daniels v. State,

114 Nev. 261, 267, 956 P.2d 111, 115 (1998) (providing that defendant

must show that evidence that police failed to gather was material).

Richardson's contention, that trace evidence may have demonstrated that

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the hat belonged to another person, was "'merely a hoped-for conclusion."'

Sheriff v. Warner, 112 Nev. 1234, 1240, 926 P.2d 775, 778 (1996) (quoting

Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979)). The hat was

found under one victim's bed and did not have any apparent blood on it.

Thus, nothing suggested that it was any more likely that the hat had

belonged to the perpetrator or victim. Second, while the police may have

been negligent in failing to seize the hat after observing surveillance video

showing the victim with Richardson, who was wearing a hat, Richardson

failed to demonstrate gross negligence or bad faith. See Daniels, 114 Nev.

at 267, 956 P.2d at 115 (providing that where defendant demonstrates

evidence was material, "the court must determine whether the failure to

gather evidence was the result of mere negligence, gross negligence, or ...

bad faith" and imposing no sanction for mere negligence). In particular,

the hat could not, at the time it was discovered, be identified as the hat in

the surveillance video and it was not until detectives interviewed Ross

that the hat's relevance became apparent, but by then the crime scene had

been released to the victims' family, cleaned, and material collected by the

cleaning company had been destroyed.

As Richardson failed to

demonstrate bad faith or gross negligence regarding the failure to collect

the hat, the district court did not abuse its discretion in declining to

instruct the jury that the evidence would have been unfavorable to the

State. Se~ id.

Admission of evidence

Richardson contends that the district court abused its

discretion in admitting (1) a hammer that was not the murder weapon, (2)

a custody report for another possible suspect, (3) testimony about

Richardson's custody status, and (4) autopsy photographs.

He also

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contends that the district court erred in refusing to admit character

evidence concerning Folker. We conclude that the district court did not

abuse its discretion for the reasons discussed below. See Mclellan v. State,

124 Nev. 263, 267, 182 P.3d 106, 109 (2008) (reviewing "a district court's

decision to admit or exclude evidence for an abuse of discretion").

First, Richardson argues that the district court abused its

discretion in admitting a hammer into evidence that was not the murder

weapon.

He asserts that the jury should have been given a limiting

instruction and should not have been allowed to have the hammer in the

jury room during deliberations. We disagree. The hammer was relevant

to demonstrate the manner in which the victims died. See NRS 48.015

("'[R]elevant evidence' means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the

action more or less probable than it would be without the evidence."); see

also Masters v. Dewey, 709 P.2d 149, 152 (Idaho Ct. App. 1985) (providing

that demonstrative evidence is used for illustration and clarification).

Further, as trial testimony stated that the actual weapon was not

recovered and the admitted hammer had been purchased by an

investigator, the jury was .aware that the hammer was not the actual

murder weapon. While the district court issued no specific instructions at

the time of its admission or during the final jury charge, no such

instruction was requested.

Second, Richardson argues that the district court erred in

admitting the custody report for Daniel James, another possible suspect in

the killings. Richardson argues that the custody report, which showed

that James was in custody at the time of the killings, was entered into

evidence without the proper foundation. We disagree. The custody report

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from the California Department of Corrections was admitted with an

affidavit from the custodian of records. Thus, there was a sufficient

showing that the document was what it purported be. See NRS 52.015(1)

(providing authentication requirement met by "evidence or other showing

sufficient to support .a finding that the matter in question is what its

proponent claims"); Thomas v. State, 114 Nev. 1127, 1148, 967 P.2d 1111,

1124 (1998) ("The government need only make a prima facie showing of

authenticity so that a reasonable juror could find that the document is

what it purports to be."). Further, Detective Vaccaro testified that as a

result of his investigation, he was satisfied that James was in custody on

the day of the murders. Thus, there was a sufficient showing that it was

the custody report for the Daniel James in contention.

Third, Richardson argues that the district court erred in

admitting testimony about his custody status when he was interviewed by

detectives and in failing to grant a mistrial based on the testimony. We

disagree.

While some testimony concerning Richardson and Dehnart's

interaction and behavior after their arrest referenced a penal setting, the

statements did not allude to any prior crimes. See Collman v. State, 116

Nev. 687, 705, 7 P.3d 426, 437 (2000) ("Reference to a defendant's prior

criminal history may be reversible error."); see also NRS 48.045(2)

(providing that evidence of other wrongs cannot be admitted at trial solely

for the purpose of proving that a defendant has a certain character trait

and acted in conformity with that trait on the particular occasion in

question). No information was presented that suggested that Richardson

was being held for questioning on charges other than the instant case. See

Collman, 116 Nev. at 705, 7 P.3d at 437 (providing that a reference to a

defendant's prior criminal activity occurs where the jury can reasonably

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infer from the evidence presented that the defendant engaged in prior

criminal activity). Therefore, the district court did not abuse its discretion

in denying Richardson's motion for a mistrial. See Rose v. State, 123 Nev.

194, 206-07, 163 P.3d 408, 417 (2007).

Fourth, Richardson argues that the district court erred in

admitting autopsy photographs. He contends that the probative value for

the additional photographs was slight as the pictures were repetitive and

unnecessary in light of the medical examiner's testimony. We disagree.

Although the photographs are gruesome, the evidence was relevant

because it assisted the medical examiner in testifying about the victims'

cause of death and the manner in which they received the injuries, and

was not unfairly prejudicial. See Libby v. State, 109 Nev. 905, 910, 859

P.2d 1050, 1054 (1993) ("The district court has discretion to admit

photographs into evidence, as long as their probative value is not

substantially outweighed by their prejudicial effect."), vacated on other

grounds, 516 U.S. 1037 (1996).

Fifth, Richardson contends that the district court erred in

excluding testimony about Folker's erratic behavior.

He contends that

this testimony would have supported his theory that Dehnart killed Folker

after a violent altercation. We conclude that this argument lacks merit.

Generally, character evidence is not admissible to show an individual

acted in conformity with his character, however, a defendant may "present

evidence of a victim's character when it tends to prove that the victim was

the likely aggressor." Daniel v. State, 119 Nev. 498, 514, 78 P.3d 890, 901

(2003). While "evidence 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," id. at 515, 78 P.3d at 902, such a defense is

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not applicable here.

Richardson asserts that he was not at the home

during the murders.

Dehnart's testimony does not indicate that the

murders occurred in self-defense.

While Richardson contends that

Dehnart is lying, the proffered character evidence remains inadmissible

because he did not establish that Dehnart was aware of the prior acts of

violence.

Sixth, Richardson contends that the district court erred in

excluding testimony about Folker's financial condition, in particular,

details concerning the sale of his home. He asserts that the testimony

would have refuted the evidence concerning Dehnart's motive to commit

the crime. We discern no abuse of discretion. The district court permitted

Richardson to inquire as to Folker's financial condition and how much

money Folker made from the sale of his home, provided that he could

demonstrate a foundation for the witness's knowledge.

Richardson

declined to question the witness further and offered no evidence to

demonstrate a foundation for the witness's knowledge. See NRS 50.025

(providing that witness may not testify unless sufficient evidence is

presented to establish witness's personal knowledge of the matter or

witness is testifying to opinion as an expert).

Guilt-phase instructions

Richardson challenges the district court's refusal to give his

proposed

instruction

regarding:

(1)

accomplice

testimony,

(2)

circumstantial evidence, and (3) aiding and abetting after the murder. We

conclude that the district court did not abuse its discretion in declining to

give any of these instructions. See Crawford v. State, 121 Nev. 744, 748,

121 P.3d 582, 585 (2005) ("The district court has broad discretion to settle

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jury instructions, and this court reviews the district court's decision for an

abuse of discretion or judicial error.").

First, Richardson argues that the district court abused its

discretion in refusing to give his proposed instruction on the consideration

of accomplice testimony. We disagree. While Richardson "has the right to

have the jury instructed on [his] theory of the case . . . no matter how

weak or incredible [the] evidence [of that theory] may be," Margetts v.

State, 107 Nev. 616, 619, 818 P.2d 392, 394 (1991), the district court may

refuse instructions on the defendant's theory of the case if the proffered

instructions are substantially covered by other instructions given to the

jury, Earl v. State, 111 Nev. 1304, 1308, 904 P.2d 1029, 1031 (1995). The

jury was instructed that it could consider the fact that a witness was given

an inducement to testify in determining that witness's credibility.

Because that instruction adequately covered the substance of Richardson's

requested instruction, the district court did not abuse its discretion in

refusing to give Richardson's instruction.

Second, Richardson contends that the district court abused its

discretion in failing to give his requested instruction concerning the

interpretation of circumstantial evidence.

He acknowledges that in

Deveroux v. State, 96 Nev. 388, 391-92, 610 P.2d 722, 724 (1980), this

court held that it is not error to refuse such an instruction when the jury is

properly instructed regarding reasonable doubt, but he nonetheless argues

that he was entitled to the instruction and urges this court to overrule

Deveroux.

We decline Richardson's invitation to overrule Deveroux as

Richardson has not cited any precedent that undermines this court's prior

reasoning and therefore he has failed to articulate a novel argument for

this court's departure from Deveroux.

Because the district court

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instructed the jury on the State's burden of proof and gave the statutory

reasonable doubt instruction, it could properly refuse to give the requested

instruction. See id.

Third, Richardson contends that the district court abused its

discretion in refusing to give a proposed instruction regarding aiding and

abetting after the killing. We discern no abuse of discretion. At trial, the

district court gave a general aiding and abetting instruction and the

statutory reasonable doubt instruction. These instructions substantially

covered the subject matter of the requested instruction.

The language

used to describe aiding and abetting contemplates actions taken before or

at the time of the actual crime and does not include actions solely taken

after the commission of the crime.

Read in conjunction with the

reasonable doubt instruction, the jury was informed of its duty to acquit if

it had reasonable doubt as to whether Richardson aided and abetted

Dehnart before the killings.

Prosecutorial misconduct

Richardson argues that the State committed prosecutorial

misconduct during the guilt phase of trial by improperly appealing to the

emotions and sympathies of the jury. We disagree. Taken in context, the

comment, which invited the jury to consider the victims' final moments,

did not exceed the bounds of proper advocacy. See Williams v. State, 113

Nev. 1008, 1020, 945 P.2d 438, 445 (1997) (providing prosecutor not

forbidden from inviting the jury to consider victim's final moments),

overruled on other grounds by Bvford v. State, 116 Nev. 215, 994 P.2d 700

(2000).

Moreover, looking at the challenged statements in context, the

State reaffirmed that the jury was not to act out of anger and sympathy

but out of. conscience and rectitude.

Therefore, Richardson failed to

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demonstrate plain error. See Gallego v. State, 117 Nev. 348, 365, 23 P.3d

227, 239 (2001), abrogated on other grounds by Nunnery v. State, 127 Nev.

_ , 263 P.3d 235 (2011), cert. denied, _

U.S. _ , 80 U.S.L.W. 3690

(June 18, 2012 (No. 11-9433)).

Penalty-phase issues

Richardson argues that the district court made numerous

erroneous rulings on matters related to (1) victim impact evidence from

prior crimes, (2) emotional outbursts by the victims' family, and (3)

prosecutorial misconduct.

He also argues that the death penalty is

unconstitutional and that cumulative error warrants reversal of his

conviction and sentence. We conclude that these arguments lack merit for

the reasons discussed below.

Victim impact evidence

Richardson argues that the district court erred by admitting

victim impact testimony from his prior offenses during the penalty phase.

He further argues that the State repeatedly revisited the irrelevant victim

impact testimony in its closing arguments. While Richardson objected to

the introduction of the testimony, he did not object to the prosecutor's

argument. We conclude that this claim lacks merit. At trial, the victim of

Richardson's prior sexual assault testified about the sexual assault to

establish the aggravating circumstance for a prior violent felony conviction

and to illustrate Richardson's violent character, which is permissible in

capital penalty hearings. See Browning v. State, 124 Nev. 517, 526, 188

P.3d 60, 67 (2008). However, she also testified that she was humiliated

when specimens were collected for the rape kit and that her son was

traumatized by the event. These aspects of the prior offense were not

However, both of the witness's

relevant to the penalty hearing.

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statements were fleeting and not discussed further during questioning.

Thus, while Richardson demonstrated that the district court abused its

discretion in admitting this part of the testimony, the error did not have a

"'substantial and injurious effect or influence in determining the jury's

verdict."' Fields v. State, 125 Nev. 776, 784, 220 P.3d 724, 729 (2009)

(providing that erroneous admission of evidence reviewed for harmless

error) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

Regarding the prosecutor's comments, any references to the impact that

Richardson's crimes had on prior victims were fleeting and lost to the

larger context of the State's argument-to provide a full account of who

Richardson is.

Therefore, Richardson failed to demonstrate that the

challenged prosecutorial comments amounted to plain error.

Mistrial

Richardson contends that the district court abused its

discretion in failing to grant a mistrial during the guilt phase of trial due

to .multiple emotional outbursts by the victims' family.

He further

contends that the district court deprived him of a fair penalty hearing

when it failed to instruct the victims' family members to avoid emotional

outbursts in front of the jury.

We discern no abuse of discretion. See Rose v. State, 123 Nev.

194, 206-07, 163 P.3d 408, 417 (2007). A review of the record does not

reveal that the incident unduly influenced the jury because all those who

heard noises from the family indicated that they were hushed tones and it

was unclear if the noises were even audible to members of 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 not render the penalty hearing

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fundamentally unfair). Further, the district court thereafter directed the

victims' family to sit further from the jury and closer to the court marshal.

In addition, we conclude that the district court did not abuse its discretion

in declining to admonish the victims' family. Nothing the victims' family

is alleged to have done could rightly be considered an "outburst." The

family cried during the presentation of some evidence, spoke in hushed

tones only audible to those immediately around them, and embraced each

other during the presentation of victim impact evidence.

Weighing instruction

Richardson contends that the district court erred when its

weighing instruction did not require that the aggravating circumstances

must outweigh the mitigating circumstances beyond a reasonable doubt.

He asserts such an instruction is required by the United States

Supreme Court decisions Blakely v. Washington, 542 U.S. 296, 301-02

(2004), and Apprendi v. New Jersey. 530 U.S. 466, 490 (2000).

We

disagree.

We recognize that this court's jurisprudence has created

confusion regarding whether the weighing of circumstances must be

beyond a reasonable doubt. Compare McConnell v. State, 125 Nev. 243,

254, 212 P.3d 307: 314-15 (2009) ("[N]othing in the plain language of [the

relevant statutory] provisions requires a jury to find, or the State to prove,

beyond a reasonable doubt that no mitigating circumstances outweighed

the aggravating circumstances in order to impose the death penalty" and

that "this court has imposed no such requirement.") with Johnson v. State,

118 Nev. 787, 802, 59 P.3d 450, 460 (2002) (noting that the weighing

requirement is part of a factual determination that must be found by a

jury beyond a reasonable doubt in accordance with Ring v. Arizona, 536

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U.S. 584 (2002)), overruled by Nunnery. 127 Nev. _ , 263 P.3d 235.

However, we recently resolved this conflict in Nunnery. 127 Nev. at_,

263 P.3d at 250-53, concluding that the 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 mandated by

Apprendi and Ring.

Therefore, the district court did not abuse its

discretion in refusing to give such an instruction. 2

Failure to find mitigating circumstances

Richardson contends that the State misstated the role of

mitigating circumstances by arguing that they did not mitigate against a

sentence of death but instead only mitigated against the offenses that

Richardson committed. He contends that the arguments resulted in the

jury failing to find mitigating circumstances that were supported by

uncontroverted evidence. We conclude that this argument lacks merit.

The State's comments merely rebut the significance of the defense's

mitigating evidence and constituted fair comment on the evidence. See

Thomas v. State, 122 Nev. 1361, 1368, 148 P.3d 727, 732 (2006) (providing

that the State is entitled to rebut evidence relating to defendant's

"character, childhood, and mental impairments, etc."). Moreover, the jury

was properly instructed on the role of mitigating evidence. In addition,

jurors are not required to find proffered mitigating circumstances simply

1n addition, Richardson argues that the instruction given in his

case violates equal protection because it placed a heavier burden on him

than it had on other capital defendants. We conclude that this claim lacks

merit. The given instruction was consistent with NRS 175.554. The fact

that this court employed imprecise language in describing the weighing

equation in prior cases does not entitle Richardson to an instruction

inconsistent with NRS 175.554.

2

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because there is unrebutted evidence to support them. Gallego, 117 Nev.

at 366-67, 23 P.3d at 240, abrogated on other grounds by Nunnery. 127

Nev. _ , 263 P.3d 235; Thomas v. State, 114 Nev. 1127, 1149, 967 P.2d

1111, 1125 (1998); see also Thomas, 122 Nev. at 1370, 148 P.3d at 733;

Hollaway v. State, 116 Nev. 732, 744, 6 P.3d 987, 996 (2000).

Prosecutorial misconduct

Richardson identifies four statements by the prosecutor

during the penalty phase that he contends constitute misconduct.

Richardson did not object to any of the comments. We conclude that these

arguments lack merit for the reasons discussed below.

First, Richardson argues that the State made improper

arguments regarding whether people who commit the type of crimes

Richardson was on trial for are capable of feeling remorse. Richardson

contends that this argument is not supported by any evidence introduced

at trial. We discern no plain error. See Gallego, 117 Nev. at 365, 23 P.3d

at 239 (providing that this court reviews claims of prosecutorial

misconduct for plain error where defendant fails to object at trial). The

comments were not improper as they invited the jury to use its common

sense in evaluating the nature of the crime in this case.

Further, as

Dehnart testified during the guilt phase of trial regarding the casual

nature in which they discussed murdering Folker and how Richardson

flippantly included Feldman in their plans saying, "she had lived a full

life," the State's argument was implicitly supported by this evidence.

Second, Richardson argues that the State improperly argued

that the jurors should use the death penalty to make a statement to the

community. We discern no plain error. "[A] prosecutor in a death penalty

case properly may ask the jury, through its verdict, to set a standard or

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make a statement to the community." Williams v. State, 113 Nev. 1008,

1020, 945 P.2d 438, 445 (1997), overruled on other grounds by Byford v.

State, 116 Nev. 215, 994 P.2d 700 (2000). Accordingly, the prosecutor's

comments fall within such permissible argument.

Third, Richardson contends that the State made an improper

proportionality argument. Specifically, the State noted that a defendant

may receive life for a lesser property crime, therefore, the jury should

impose a greater penalty for a murderer. We conclude that the argument

is improper. The statement referred to matters outside the scope of the

jury's charge and seemingly invited the jury to consider the wisdom of the

laws it was applying by comparing the punishments that the Legislature

has authorized for different crimes. See United States v. Coupez, 603 F.2d

1347, 1352 (9th Cir. 1979) (approving of instruction to jury not to question

the wisdom of any rule of law).

However, Richardson failed to

demonstrate that the comment prejudiced his substantial rights for two

reasons. First, the jury was properly instructed on the proper method to

determine death eligibility and the factors that it could consider to come to

a conclusion. Moreover, it had also been instructed that it was not to

consider the wisdom of any of the laws it was applying. See Summers v.

State, 122 Nev. 1326, 1333, 148 P.3d 778, 783 (2006) (recognizing that the

jury is presumed to follow jury instructions). Second, Richardson failed to

demonstrate that there was a reasonable probability of a different result

at the penalty hearing had the State not made the comment. See Thomas

v. State, 120 Nev. 37, 47, 83 P"3d 818, 825 (2004) (providing that the focus

of the prejudice inquiry should be on the penalty proceedings and whether

the misconduct "so infected the proceedings with unfairness as to make

the results a denial of due process"); Schoels v. State, 114 Nev. 981, 989,

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966 P.2d 735, 740 (1998) (providing that in evaluating prosecutorial

misconduct during the penalty phase, this court "will reverse the

conviction or death penalty where the decision between life or death is a

close one or the prosecution's case is weak"), on reh'g, 115 Nev. 33, 975

P.2d 1275 (1999).

The jury found all three alleged aggravating

circumstances: (1) Richardson had previously been convicted of a felony

involving the use or threat of violence to the person of another (attempted

sodomy, rape); (2) he had previously been convicted of a felony involving

the use or threat of violence to the person of another (second-degree

robbery); and (3) he had, in the immediate proceeding, been convicted of

more than one count of first-degree murder.

These aggravating

circumstances are compelling in that they demonstrate Richardson's

escalation from a violent sexual assault to a double homicide. In addition,

it shows how unresponsive to rehabilitation he is with the relatively brief

span of two years between his release from his 15-year prison term and

the instant offense.

The jury found no mitigating factors, and, as

discussed above, even those alleged, which Richardson contends are

supported by the evidence, are not particularly compelling.

Therefore,

Richardson failed to demonstrate that the comment amounted to plain

error.

Fourth, Richardson argues that the State improperly appealed

to the jurors' emotions with arguments that discussed the toll taken on the

victims' family. We discern no plain error. Victim impact testimony from

the current crime was relevant to the penalty hearing and admissible. See

Sherman v. State, 114 Nev. 998, 1013, 965 P.2d 903, 913-14 (1998).

Therefore, as the prosecutor discussed properly admitted evidence during

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his closing argument, his comments did not exceed the bounds of proper

advocacy.

Constitutionality of the death penalty

Richardson

contends

that

the

death

penalty

1s

unconstitutional on three grounds: (1) the death penalty scheme fails to

genuinely narrow death eligibility, a contention we have rejected, see

State v. Harte, 124 Nev. 969, 972-73, 194 P.3d 1263, 1265 (2008); (2) the

death penalty is cruel and unusual, an argument we have rejected, see

Gallego, 117 Nev. at 370, 23 P.3d at 242; and (3) the death penalty is

unconstitutional because executive clemency is unavailable, an argument

we have rejected, see Colwell v. State, 112 Nev. 807, 812, 919 P.2d 403,

406-07 (1996). Richardson's death sentence is not unconstitutional on any

of these grounds.

Cumulative error

Richardson argues that the cumulative effect of the errors

committed during his trial warrant reversal of his conviction and

sentence.

"The cumulative effect of errors may violate a defendant's

constitutional right to a fair trial even though errors are harmless

individually." Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115

(2002). 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 Richardson'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

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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 three

aggravating circumstances found-all of which involve either prior or the

instant convictions. 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 calculated nature in which

Richardson planned and murdered the victims, his prior rape conviction,

and the evidence in mitigation, we conclude that Richardson's death

sentence was not excessive.

Having considered Richardson's contentions and concluded

that they lack merit, we

ORDER the judgment of conviction AFFIRMED.

J.

JJrJru j .

' J.

Pickering

-PM). ~U . ,---j_

J.

Hardesty

cc:

\

Parraguir;;

Hon. Michelle Leavitt, District Judge

Special Public Defender

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk

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CHERRY, C.J., with whom SAITTA, J., agrees, dissenting:

I respectfully dissent.

I would reverse the judgment of

conviction on the grounds that the district court improperly limited the

defense's argument, the police were grossly negligent in failing to collect

evidence, the district court abused its discretion in admitting several

pieces of evidence, and the prosecutor made improper comments during

closing argument.

Limiting of defense argument

The

district

court

abused

its

discretion

1n

limiting

Richardson's closing argument. See Glover v. Dist. Ct., 125 Nev. 691, 704,

220 P.3d 684, 693 (2009) (providing that this court reviews the latitude

allowed counsel in closing arguments for abuse of discretion). Richardson

elicited evidence (his statements during recorded phone conversations)

that he had left Las Vegas before Dehnart. Therefore, he should have

been allowed to argue that he had returned to California before the

murders.

Id. at 705, 220 P.3d at 694 ("'[D]efense attorneys must be

permitted to argue all reasonable inferences from the facts in the record."')

(quoting U.S. v. Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992). As there was

conflicting evidence of this crucial fact and no physical evidence placing

Richardson in the home or even in the state at the time of the murders,

counsel's argument became that much more vital to the defense.

See

United States v. Sawyer, 443 F.2d 712, 713 (D.C. Cir. 1971) (providing

that a district court abuses its discretion when it "prevents defense

counsel from making a point essential to the defense").

I further disagree with the majority's conclusion that this

error was harmless beyond a reasonable doubt. Being able to argue that

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physical evidence did not place him at the scene was not as powerful as

being able to point to a plausible alternate theory that Richardson had

returned to California. Further, the evidence against Richardson was not

overwhelming.

It consisted chiefly of accomplice testimony that was

supplemented by a video from Taco Bell, a $275 deposit, and testimony

about a hat that police neglected to recover. Based on this evidence, I

cannot say beyond a reasonable doubt that the error did not contribute to

the verdict. See Valdez v. State, 124 Nev. 1172, 1189, 196 P.3d 465, 476

(2008) (providing that where the error is constitutional, this court "will

reverse unless the State demonstrates, beyond a reasonable doubt, that

the error did not contribute to the verdict"); see also Gerlaugh v. Stewart,

129 F.3d 1027, 1050 (9th Cir. 1997) ("[T]he Sixth Amendment right to

counsel encompasses the right to have defense counsel present a closing

summation.").

Failure to gather evidence

I disagree with the majority's conclusion that Richardson

failed to show a due process violation concerning the police's failure to

collect the hat that the State relied on to place him at the scene. The hat

was found under Folker's bed and did not appear to have any blood on it.

Thus, it was just as likely that the hat belonged to someone who lived at

the home as it was that it belonged to Richardson, was knocked under the

bed, and escaped any blood spatter that resulted from what the evidence

shows was a vicious beating.

The hat therefore was as material to

Richardson's defense as it was to the State's case against him.

The failure to collect the hat was grossly negligent.

The

record indicates that detectives observed surveillance video at Taco Bell

showing one of the victims interacting with two men, one of whom was

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wearing a hat with similar shading. The detectives then returned to the

crime scene where they picked up the hat, passed it around to each other,

and even joked about it. Despite the amount of discussion that the hat

generated, it was not collected.

I acknowledge that "'police officers

generally have no duty to collect all potential evidence from a crime

scene,"' Daniels v. State, 114 Nev. 261, 268, 956 P.2d 111, 115 (1998)

(quoting State v. Ware, 881 P.2d 679, 684 (N.M. 1994)), but this piece of

evidence obviously generated enough interest that it should have been

collected.

Further, the police released the scene, allowing for any

remaining evidence in it to be destroyed, within a relatively short period of

time after the murders and before they had positively identified a suspect.

In addition, the State was allowed to capitalize on the fact that the hat

was just as likely to have belonged to Folker as Richardson, but

Richardson was not. In a pretrial hearing, the State introduced evidence

justifying the failure to collect the hat on the grounds that the lack of

apparent blood and location of the hat made it appear that the hat

belonged to Folker, but then later argued to the jury that the hat indeed

belonged to Richardson and placed him at the scene without needing to

produce it.

Under the circumstances, Richardson was entitled to a

presumption that the evidence would have been unfavorable to the State.

Such an instruction would have put him on fair footing to contest the

testimony that the hat belonged to him.

Admission of evidence

Richardson contends that the district court abused its

discretion in admitting several pieces of evidence.

I agree with his

contentions that the district court abused its discretion in admitting an

example of the murder weapon and several autopsy photographs.

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Hammer

The district court abused its discretion in admitting the

hammer as an example of the murder weapon. See Mclellan v. State, 124

Nev. 263, 267, 182 P.3d 106, 109 (2008) (providing that this court reviews

"a district court's decision to admit or exclude evidence for an abuse of

discretion"). The hammer, as demonstrative evidence, had little probative

value. Dehnart's testimony about purchasing the hammer for the crimes

and the medical examiner's testimony were sufficient to establish that a

hammer was used to kill the victims. It can further be assumed that the

jurors brought with them the common knowledge of how a hammer can be

used. The record does not indicate that there was anything extraordinary

about this hammer that required its presence to explain the wounds or

manner in which they were inflicted. Cf. State v. Carter, 955 S.W.2d 548,

561 (Mo. 1997) (concluding demonstrative gun probative where used to

show how shell casings would eject from it); Lynn v. State, 860 S.W.2d

599, 603-04 (Tex. Ct. App. 1993) (holding that demonstrative weapon was

probative when there was issue as to force required to pull the trigger); see

also Wade v. State, 204 So. 2d 235, 238-39 (Fla. Dist. Ct. App. 1967)

(admitting master brake cylinder).

As the probative value of the hammer was not significant, not

much in the way of unfair prejudice is necessary to conclude that the

district court abused its discretion in admitting it.

See NRS 48.035(1)

(providing that relevant evidence is inadmissible "if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of

the issues or of misleading the jury"). Demonstrative evidence of murder

weapons carries a unique potential for unfair prejudice:

A great deal of demonstrative evidence has the

capacity to generate emotional responses such as

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pity, revulsion, or contempt, and where this

capacity outweighs the value of the evidence on

is

exclusion

litigation,

in

issues

the

appropriate. . . . [E]ven if no essentially emotional

response is likely to result, demonstrative

evidence may convey an impression of objective

reality to the trier.

2 John William Strong, McCormick on Evidence, § 212, at 4 (4th ed. 1992);

see also 2 Kenneth S. Brown, McCormick on Evidence,§ 212, at 7 (6th ed.

2006) ("Since 'seeing is believing,' it is today often felt that this kind of

evidence possesses an immediacy and apparent reality which endow it

with particularly persuasive effect."). The exhibit permitted the State to

capitalize on the gravity that introducing a physical weapon might exert

on the jury without producing the actual weapon. While such a latent

emotional effect would be tolerated where the evidence had more probative

value, I conclude that the danger of unfair prejudice far outweighs the

probative value of the hammer in this instance. See Elder on Behalf of

Finney v. Finney, 628 N.E.2d 393, 395 (Ill. App. Ct. 2003) ("If it appears

that demonstrative evidence was used for dramatic effect, or emotional

appeal, rather than factual explanation useful to the reasoning of the jury,

such use should be regarded as reversible error."). Moreover, the district

court did not take adequate measures to reduce this danger. Nevada has

no published authority concerning the admission of replica murder

weapons.

However, other jurisdictions have concluded that the best

practice for admitting such evidence is to issue a cautionary instruction

and prevent the jury from taking it into the jury room during

deliberations. See United States v. Cox, 633 F.2d 871, 873-74 (9th Cir.

1980) (recognizing better procedure for admitting replica of explosive

device would be to exclude it from the jury room but ruled no abuse of

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discretion where district court issued limiting instruction and defense had

opportunity to cross-examine); U.S. v. Johnson, 354 F. Supp. 2d 939, 97778 (N.D. Iowa 2005) ("[P]rejudice can be ameliorated, for example, where

the government makes clear in its use of the replica that it is not the

actual weapon used or carried by the defendant, the court gives a proper

limiting instruction, and the replica is not left on display in the courtroom

or given to the jury during deliberations."), affd, 495 F.3d 951 (8th Cir.

2007); Berry v. State, 715 N.E.2d 864, 867 (Ind. 1999) (concluding that

shotgun had little prejudicial effect where district court instructed the jury

that it was an example); Com. v. Stewart, 499 N.E.2d 822, 826-27 (Mass.

1986) (concluding that no error occurred in admission of example of

murder weapon where district court gave limiting instruction); State v.

Flores, 418 N.W.2d 150, 159-60 (Minn. 1988) (holding no abuse of

discretion where replica murder weapon not given to jury during

deliberations and district court instructed jury it was a replica); Foster v.

State, 714 P.2d 1031, 1036 (Okl. Crim. App. 1986) (holding that replica

baseball bat was not unfairly prejudicial where State and district court

informed the jury that it was not the actual weapon). Given the lack of

binding authority on this subject, it would have been preferable for the

district court to proceed cautiously by instructing the jury that the

hammer was not the actual murder weapon and prevent the jury from

taking it into the jury room during deliberations. Such a course of action

would have alleviated much of the unfair prejudice that surrounds its

admission.

Autopsy photographs

I agree with Richardson's contention that the district court

abused its discretion in admitting certain of the autopsy photographs.

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Byford v. State, 116 Nev. 215, 231, 994 P.2d 700, 711 (2000). The record

indicates that the photographs were used to assist the medical examiner

However, the gruesomeness of the

in explaining the victims' injuries.

photographs, particularly those that displayed the victims' bare skulls

after their scalps were resected during the autopsy, were extremely

prejudicial. See Clark v. Com., 833 S.W.2d 793, 794 (Ky. 1991) (noting

that photographs become less admissible when the subject has been

"materially altered by mutilation, autopsy, decomposition or other

extraneous causes, not related to commission of the crime, so that the

pictures tend to arouse passion and appall the viewer"); Hayes v. State, 85

S.W.3d 809, 816 (Tex. Crim. App. 2002) ("[A]utopsy photographs are

generally admissible unless they depict mutilation of the victim caused by

the autopsy itself."). Further, several of the photographs merely showed

injuries that had been detailed in other photographs from slightly

different angles and therefore became less probative.

See Driskell v.

State, 659 P.2d 343, 354 (Okla. Crim. App. 1983) (concluding that there

was "no justification for the incredible duplication" of four color slides of

victim's near decapitation). Moreover, as the manner of death was not the

subject of great dispute, multiple photographs proving that fact were

unnecessary.

Because the evidence introduced against Richardson was not

overwhelming, I cannot conclude that the error in introducing either the

hammer or the autopsy photographs was harmless.

Prosecutorial misconduct

The State's argument during the guilt phase of trial, which

Richardson now challenges, was improper. The prosecutor stated:

This is not over, but it will be. And you will

write the ending to the pain and suffering of

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Estelle and Steven with your verdict. And the

unimaginable and lingering death that they both

suffered. Besides the pain, the knowledge that

[the] one they loved struggled nearby and they

could do nothing for each other.

This language was inflammatory and was employed to evoke an emotional

response in its audience. The majority may hold that such language was

subsequently diffused by the prosecutor's later plea to render a verdict

from "conscience and rectitude." However, I conclude that the prosecutor's

meek admonition failed to equal the resonance of his initial language.

Nevertheless, I do not believe that this single comment, in and of itself, "so

infected the proceedings with unfairness as to make the results a denial of

due process," Thomas v. State, 120 Nev. 37, 47, 83 P.3d 818, 825 (2004), or

rose to the level of plain error, see Gallego v. State, 117 Nev. 348, 365, 23

P.3d 227, 239 (2001) ("Failure to object during trial generally precludes

appellate consideration of an issue."), abrogated on other grounds by

Nunnery v. State, 127 Nev._, 263 P.3d 235 (2011), cert. denied, 567 U.S.

_ , 132 S. Ct. 2774 (2012).

Cumulative error

I agree with Richardson's contention that the cumulative

effect of the errors committed during his trial warrant reversal of his

conviction and sentence. "The cumulative effect of errors may violate a

defendant's constitutional right to a fair trial even though errors are

harmless individually." Hernandez v. State, 118 Nev. 513, 535, 50 P.3d

1100, 1115 (2002). There are three factors relevant to a cumulative error

analysis: (1) the gravity of the crime, (2) whether the question of guilt is

close, and (3) the quantity and character of the error. Mulder v. State, 116

Nev. 1, 17, 992 P.2d 845, 854-55 (2000).

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As to the first factor, Richardson was charged with two counts

of first-degree murder and the State sought the death penalty.

Accordingly, he faced two counts of the most serious crime in Nevada and

two sentences of Nevada's harshest punishment.

Second, the question of his guilt was close. The chief evidence

against Richardson was the testimony of Dehnart, who testified against

Richardson in exchange for a reduced penalty for his own involvement in

the murders. Dehnart's testimony was corroborated by testimony about a

hat that the police failed to collect, a surveillance video from a restaurant

taken the day of the murders, and $275 dollars that Richardson gave to

his girlfriend after the murders. Dehnart's fingerprints were found at the

murder scene, but the police did not recover any physical evidence that

placed Richardson in the victims' home.

Lastly, the errors in this case worked in conjunction with one

another to deprive Richardson of a fair trial. The hat, which the State

relied most heavily upon to tie Richardson to the scene and corroborate

Dehnart's testimony, was not collected due to gross negligence. The State

benefitted from the failure to collect the hat and the district court's

decision to not give an instruction that would have put Richardson's

arguments concerning the relevance of the hat on equal footing with those

of the State. This evidentiary inequity was exacerbated by the State's

introduction of evidence (the demonstrative hammer and gruesome

autopsy photographs) that was more inclined to influence the passions of

the jury than appeal to its reason. The State further stoked the jury's

emotion in its closing argument while Richardson was unable to even put

forth his most persuasive and permissible argument. While I acknowledge

that a defendant is not entitled to a perfect trial, see Ennis v. State, 91

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Nev. 530, 533, 539 P.2d 114, 115 (1975), this trial was so far from perfect

that it was unfair.

Accordingly, I would reverse the judgment of

conviction and remand for a new trial.

Cherry

(

Saitta

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