Opposition Brief — McDaniel v. Gallego

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MAY

NO. 97-1632

Clerk

> 1998

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

E.K. McDANIEL, Warden, Ely State Prison; ROBERT

BAYER, Director, Nevada Department of Prisons;

FRANKIE SUE DEL PAPA, Attorney General

of the State of Nevada

Cross-Petitioners,

¥.

GERALD ARMOND GALLEGO,

Cross-Respondent,

BRIEF OF CROSS-RESPONDENT IN OPPOSITION TO THE

CONDITIONAL CROSS-PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

NINTH CIRCUIT

LAW OFFICE OF RICHARD F. CORNELL

150 RIDGE ST., SECOND FLOOR

RENO, NEVADA 89501

702/329-1141

Counsel for Cross-Respondent

Per 21 U.S.C. § 848q(9)

sem -omat

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

' of

NO. 97-1632

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

E.K. McDANIEL, Warden. Ely State Prison; ROBERT

BAYER, Director, Nevada Department of Prisons:

FRANKIE SUE DEL PAPA. Attorney General

of the State of Nevada

Cross-Petitioners,

GERALD ARMOND GALLEGO.

Cross-Respondent,

BRIEF OF CROSS-RESPONDENT IN OPPOSITION TO THE

CONDITIONAL CROSS-PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

NINTH CIRCUIT

LAW OFFICE OF RICHARD F. CORNELL

150 RIDGE ST., SECOND FLOOR

RENO, NEVADA 89501

702/329-1141

Counsel for Cross-Respondent

Per 21 U.S.C. § 848q(9)

RICHARD F. CORNELL, Esq.

150 Ridge St., Secoud Fleer, Ru

telephone (702) 329-1141 Facsimile |

0, Nevada 89501

702) 329-7651

b-mail/rcornlS0@aol.com

I. QUESTIONS PRESENTED FOR REVIEW

IV.

VIL.

TABLE OF CONTENTS

OPINIONS AND JUDGMENTS BELOW 2

JURISDICTIONAL STATEMENT/CONSTITUTIONAL AND STATUTORY

Kutt as Le 5. | RAS yes amare ease Sar ae aire trary rea a at 2

eee A SORE MR OMUNEE SS eS e 'e a 'e pp a ark dee ka a a ee as 2

eer: WAPUR ROEES CREED COUER WEMRC En 5 ka eds a ewes ee ole wl z

SE MUCAEURI IMU 2 Sao c 2k Sete oh ek ag fa, a We Oe a OR ge eee ews 2

i: A COMPARISON OF HOW CONDITIONAL CROSS-

PETITIONERS RAISE THE QUESTIONS PRESENTED

FOR REVIEW AGAINST HOW THEY PRESENTED

THE ISSUES TO THE UNITED STATES COURT

Ce Pare etka TAP Fates PORTE UEE GEMCUTE 6 a5 6 Ge ee ees 2

2. A BRIEF OVERVIEW OF NEVADA'S STATUTORY

PPL REe F CATIEL TT 0 GEES oe ae ew ae 5

B. A REVIEWING FEDERAL COURT SHOULD NEVER BE REQUIRED

TO CONDUCT A HARMLESS ERROR ANALYSIS UPON

FINDING THAT AN EXECUTIVE CLEMENCY

INSTRUCTION TO A NEVADA JURY IS

SEPP USNR EPO NOIRE bil Os a ee ee ee OR ae

C. THIS COURT SHOULD NOT GRANT CERTIORARI ON

_ CONDITIONAL CROSS-PETITIONER’S ASSERTION

THAT THE COURT OF APPEALS INCORRECTLY DETERMINED

THAT THE EXECUTIVE CLEMENCY INSTRUCTION GIVEN

HEREIN VIOLATED THE EIGHTH AMENDMENT ............ 12

Can agra Sa Na ie a aie gs te gillg alige pha Na laa lake 15

RICHARD F. CORNELL, Esq.

150 Ridge St.. Second Floor, Reno, Nevada 89501

lelephone (702) 329-1141 Facsunile (702) 329-7051

E-mail/rcornl 50@aol.com

TABLE OF AUTHORITIES

Auer v. Robbins.

U wey See ee ee

1738-41,

Bean v. State,

gi @ re Me Bp ae. ts Saeeneencn ean pent

Gi Nev. 23, 236, 396 Pia £04. Zot CE os es ee ie eee ee 13

Bennett v. State,

106 Nev. 135, 144, 787 P.2d 797, 803,

cert. denied, 498 U.S. 925 (1990) .....

Boulden v. Holman,

394 U.S. 478, 89 S.Ct. 1138,

oa 4.0. A SAS LI oS Ek ES Se

Brecht v. Abrahamson,

adE Ue RR AAPOR og ow ie woe Ro

Caldwell v. Mississippi,

472 U.S. 320, 342. 105 S.Ct. 2633, 2646,

OG 6. Ge. gO. ESE RA eee eae wa

Canape v. State,

109 Nev. 864, 859 P.2d 1023 (1993),

cert. denied, 115 S.Ct. 176 (1994) ....

Capital Cities Cable, Inc. v. Crisp,

467 U.S. 691, 697-98, 104 S.Ct. 2694.

2699. 81 L.fd. 2d 380 (1964) . 2...

Clemons v. Mississippi,

ath ee i Ree are eae ee

Eddings v. Oklahoma,

455 U.S. 104, 102 S.Ct. 869,

FA nell Sees & LAD cd ee ee CS

Franklin v. Lynaugh,

487 U.S. 164, 184, 108 S.Ct. 2320, 2333,

Mek Socks de $00 (EP Med

RICHARD F. CORNELL, Esq.

b-mail/ coral S0@aol.com

150 Ridge St., Second Floor, Reno, Nevada 89501

felephone (702) 329-1141 Facsimile (702) 329-7651

Gallego v. State,

LOL Nev. 782, 711 P.2d 856 (1985),

ue TW Na OTE RNOD yo0ou Liane ee irl eer ne 9, 12, 14

Gardner v. Florida.

RU EMUROD FO pie trad fee ge. 5 Mie eM cote os Wy one ltear Bi nd Mestad ty |3

Geary v. State,

Pie ees Seer Fae Pee FPP ANOOD, fre i gan ee Eee iT, a2

Hamilton v. Vasquez,

17 F.3d 1149.1161-64 (9th Cir.),

ai Gomied cee mae, S12 .S. 1220 (IGA) nc ce cc en : ie

Hoover v. Ronwin,

466 U.S. 558. 574. n. 25, 104 S.Ct. 1989, 1998 n. 25.

80 L.Ed 2d 590 (1984),

Ses re 00k, LEU CANO ke 8 ew he Sk he bck ele ce 4

Jones v. State,

a Pes Cae TE Eee MI AIOOEE, 5 iin's oR eke ee bee es Ll, 12. 14

Jurak v. Texas,

RUN As RI oS Bia eos Ga Wie Fe ee ee eg ee ee 13

See: OU Ah as. OUR RIN o's Nore Sky coke ale ei ee 8

McCleskey v. Kemp.

481 U.S. 279, 304... (1987)

cis Mdesciapictie wlio myc EO A aT aI er PI OP DD eee AA elt ie 7

Gallego v. McDaniel,

Eee Wine RU I a A i tly EN boy Rte ee De 2, 4, 12-14

Morgan v. Illinois,

$09 U.S.719, 112 S.Ct. 2222, 2235,

Beh Se A Eo Tei ag ORE EAD iil ear icy ae eee Be EL a A eer Sp) 9 10

O'Dell v.N land,

aa ee

FAR Ra RON sa a ep aes tee Miers ak ea 13, 14

iii

Cc Fe N Dn ee we Ne =

b-mail/reorn| W@ael.com

RICHARD F. CORNELL, Esq.

150 Ridge St., Second Fleer, Rene, Nevada 89501

telephoae (702) 329-1141 Facsumile (702) 329-7651

492 U.S. 302, 109 $.Ct. 2934,

OE es Oe PROD 6 ES Wh dia ndcb ok GA hicta Re ah eles army I a

Petrocelli v. State,

Pee Rs te eta g MEE Sa Ps PETE COE Fle vp ead os wince we ale wi

Ramos v. California,

463 U.S. 992 (1983)

Rogers v. State,

LOL Nev. 457, 705 P.2d 664 (1985),

ae ee i ee, ee oe oe ee ee oo a ee ee a a oe a oe a ee a ok oe ee oe an oe oe ey Gee fie ee

er NE, PNP AIO USNR RUUD on hob va a gic aha Neal a eG cas SES ee

Simmons v. South Carolina,

Dee OR ed ay te hoe Gg ce ee EL ON RE aD

Sochor v. Florida,

504 U.S. 527, 539-40, 112 S.Ct. 2114, 2123.

RUE ieee ein IED foi ern gl ose Are ae a eek ube ec wera kale eae po ae Te

Summers v. State,

Fea Oe ee, TORE. ee CO REO VE <0 .9 3) 3k sw wa ee 8a DR

Teague v. Lane.

EER A See: op) Wilh a woke Oe 4 RR Ve a ee a i a a ek a

United States v. Ortiz,

422 U.S. 891, 899, 95 S.Ct. 2585, 2589,

cath RS CML 5 BSR eS Irae CP PU eee ira, ee Pe ae nan en een ae

Wesley v. State,

112 Nev. 503. 916 P.2d 793, 803,

ee SS Ve ieee, ND Oe RUUD? 6S sg 44a aoa Ree RO Oak Wid Woe ate eee wt

Witherspoon v. [llingis,

er UR I Cs gt ie eh CHa keene em ate ig a ceidMar am ese nso eh

Wo Vv. Nortl lina,

ae es ae POON ne Wiens co fae 5 Kn ncn cK, Dh eae ea IE Thee ed

RICHARD F. CORNELL, Esq

150 Ridge St

Reno, Nevada 89501

Second Floor

2) 329-7651

) 329-1141 bacsunile (70

F -mail/ ccorn! S0@aol.com

lelephone (70

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II. OPINIONS AND JUDGMENTS BELOW

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= _ - af car “aw eh a | eh “NY dition rr ee

aiid pF ac ALALOSL Soer LOrctcn in ~11e CiOoOnal -LUSS

a Fm ~ba Armond >. } mle Der rf 4 Y

StC.ta0 BL S 2 s@raia Armone saiiegGo S$ recition 13

III. JURISDICTIONAL STATEMENT /CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

I iditi ro. «the authority set forth by the Conditi ]

Tross-petitioners, Nevada Revised Statutes, Sections 2

20 < S ang 175.3552

IV STATEMENT OF THE CASE

r etitioners’ recitation of the Statement of the Case 1

their iti il ross-Petition 1s accurate

V. REASONS FOR DENYING THE WRIT

A. INTRODUCTION:

1. A COMPARISON OF HOW CONDITIONAL CROSS-PETITIONERS RAISE THE

QUESTIONS PRESENTED FOR REVIEW AGAINST HOW THEY PRESENTED THE ISSUES

TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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south Carolina, 512 U.S. 154 (1994), and that Simmon constituted

a “new rule" for purposes of Teague v. Lane, 489 U.S. 288 (1989

However in fairness, the court below did pass on that issue, even

though t raised in the brief See > ba® #36 AE GF

It is fundamental that this Court does not consider issues not

raised or inadequately preserved in the briefs to the court below,

br 4

e3)

rehearing denied, 476 U.S. 1268 (1984); United States v. Ortiz, 422

u.S. 891, 895 93 &.Ct. 2585, 2599, 45 4.84: 24 623 {1975).; Auer v.

Pe, wt bd? SCC. L735, 1738-44, 128 L.A. 26. 352 (1997) :

citie rable, Inc. v. Crisp, 467 U.S. 691, 697-98, 104 S.Ct

2694, 2 S51 L.Ed. 2a 58 1984)

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ah 17 ny nae tt. RANnaes.s AS 7 ms | + : : rl sro _

shoulda not even Onsider Conditional Cross-petitioner’s first and

‘

Main issue presented, because not only was it inadequately raised

(at bes > he. court below, but the court below -— quite

understandably — did not even consider it at Gallego, 124 F.3d at

1074-765. Simply put, assu*iing arguendo that there is some viability

Co tne proposition that a federal appellate court can doa '"

i. on en pet HAPS psee F = trast hua? ' ¢ ee. 7 ho Ninth

Slt. review of a "deathworthy' issue, how can one blame the Nint

~-ircuit tor not engaging in such a "harmless error analysis" when

they were not specifically asked to do so relative to this issue?

Petitioners’ would suffer from the same problem,

insofar as their is concerned. However, the Ninth

Circui lid them the favor of raising the issue for them, and

reviewed.

of merit.

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SCHEME

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‘S STATUTORY DEATH PENAL

A_ BRIEF OVERVIEW OF NEVADA

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re jenied 498 U.S 925 (1990) )

- 5 oS ery y url > nowhere aa] + ed a KT “4 > 0) y

4 die de uc y + © aa IWNeLIZ — ment s yn ¢ d& 4s iV INO av }

ces + eae . me pce ! ; Tey

evel IRS 175.552 (3 Ex F provides that, at a penal

‘ - 2 ~ - - - “—~ar-

iri idence iy be presented oncerning aggravating and

- - )

- . “- - he - ~ a _

nitiga 1rcum stances relative tothe offense, defendant or victin

and on any other matter which the court deems relevant to the sentence

whether or not the evidence 1s ordinarily admissible. Thus, pursuant

to that statute, evidence regarding "executive clemency" is admissible

sn F y 1 a > = ox * - ae | De “met ¢

luring penalty phase of a Nevada capital murder trial. Petrocelli

1, , ‘ 1 whe tne s Ceimwre , ~ wr 7) 77 4 (7 - ar . = o

Thus, as the Nevada Supreme Court explained in Canape v. State,

{100A } “Away -“Anmastnsa ~ Fr ; ; _ oc : af yr + =sanroc

(1994), the court considers aggravating and mitigating circumstances

determining whether a capital defendant is death-eligible. See:

Canape, 109 Nev. at 877-83, 859 P.2d at 1031-35 However the

“ + — KT ~ : 7 ~ 1 wit}

"“weignin t goes on with a Nevada capital jury is only with respect

to the th-eligibility process; matters such as character evidence

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Vics 2aVUi Lida

matters f deathworthiness. See: Canape, 109 Nev. at 895-900, 859

TY oc "7°

Based upon Canape and Clemons v. Mississippi, 494 U.S. 738 (15

a "harmless error" analysis is possible when an error occurs viz.

an issue of death-eligibility. For example, ina hypothetical capital

prosecution, if the Notice of Intent to Seek the Death Penalty listed

four aggravating circumstances, the penalty jury found all four and

no mitigating circumstances, and one of the aggravators was found

to be invalid, the Nevada Supreme Court could decide that a "score

of 3-0" makes one just as "death eligible" as a "score of 4-0," and

could fi such an error to be harmless. But Nevada’s attorney

general’s position doesn’t implicate that scenario: Rather, she wants

‘our ) hold that where an error is made on a deathworthiness

issue, and it is impossible from the record to determine what degree

< wowahe “he A AnMIeK A) a aaa | rel h "gd he hatanta

of weight the capital jury placed on the erroneous eathworthy

information in returning the death penalty verdict, that nevertheless

the federal court of appeals on review can and should engage in a

"harmless error" analysis. As we shall show, Nevada’s attorney

general’s position is not only unsupported by any authority, it is

- 4

contradicted by every authority considering or marginally consider

B. A REVIEWING FEDERAL COURT SHOULD NEVER BE REQUIRED TO CONDUCT

A_HARMLESS ERROR ANALYSIS UPON FINDING THAT AN EXECUTIVE CLEMENCY

INSTRUCTION TO A NEVADA JURY IS UNCONSTITUTIONAL

Brecht v. Abrahamson, ante, was not a capital murder case, and

is necessarily limited to "guilt phase" or

trial" issues. Brecht arises out of the use of post-arrest silence,

Or infiuence in determining the jury’s verdict." Brecht clearly

addresses the issue of "constitutional harmless error" in a non-capital

ht begins to address how to assess a "deathworthy

ring the penalty hearing of a capital murder trial.

statements of this Court in other opinions, however, suggest

Strongly that error as to a “deathworthy" issue in a penalty hearing

1s not subject to a harmless error analysis, but rather, is structural

In Penry v.Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.

1989 this Court stated:

Im contrast to the carefully defined standards that narrow

a sentencer’s discretion to impose the death sentence, the

Constitution limits a State’s ability to narrow a sentencer’s

discretion to consider relevant evidence that might cause it

to decline to impose the death sentence. McCleskey v. Kemp,

481 U.S. 279, 304... . (1987) (emphasis in original) Indeed,

£3 precisely because the punishment should be directly related

to the personal culpability of the defendant that the jury must

be allowed to consider and give effect to mitigating evidence

relative to a defendant’s character or record or the circumstanc-

es of the offense. Rather than creating the risk of an unguided

emotional response, full consideration of evidence that mitigate S

against the death penalty is essential that the juries give a

reasoned moral response to the defendant’s background, character

and crime.’ Franklin [v. Lynaugh, 487 U.S. 164, 184, 108 S.Ct.

2320, 2333, 101 L.Ed. 2d 155 (1988) (O’Connor, J., concurring

in judgment) .. .] In order to insure ‘reliability in the

jetermination that death is the appropriate punishment in a

specific case,’ Woodson [v. North Carolina, 428 U.S. 280 (1976)],

the jury must be able to consider and give effect to any

m 1 id

lltigating evidence relevant to a defendant’s background ar

haracter the circumstances of the crime.

Ppemry, 4292 U:5. @t 327-28, i109 $.Ct. at 2951-52.

idings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71

L.Ed. 2d 1 (1982), this Court held that exclusion of evidence which

should have been admitted at the penalty phase could not be considered

harmless. In citing to Lockett v. Ohio, 438 U.S. 586 (1978), this

Just as the State may not by statute preclude the sentencer

from considering any mitigating factor, neither may the sentencer

refuse to consider, as a matter of law, any relevant mitigating

evidence. In this instance, it was as if the trial judge wast

instructed a jury to disregard the mitigating evidence Edding

proffered on his behalf. The sentencer and the Court of Cri minal

Appeals on review, may determine the weight to be given relevant

itigating evisence But they may not give it no weight by

excluding such evidence from their consideration.

Bogings, 455 U.S. at 113-15, 102 $.Ct. at 876-77

even if an appellate court could engage ina "harmless

error" analysis of a "deathworthy" issue, the United States Court

co A enon ‘. ~ ars ‘« } ft sé anmie : ‘“ 5 + ne

9f Appeals for the Ninth Circuit would not be the one to do so. Where

reweighing 1S appropriate, 1t 1s the state court’s duty to do so;

one cannot "imply" that the state court did so, if it does not appear

clearly in the state court’s opinion. Sochor v. Florida, 504 U.S.

S27, $39+40, 212 3,CO.- 22448, <iss, 239 te. BG: Oe See. (288s). eee,

v,. State, 101 Nev. 782, 711 P.24@ 856 (1985), cert. denied, 479 U.S.

871 (1986). As appears clearly at the short discussion on this point

at 101 Nev. at 789, 711 P.2d at 861-62, the Nevada Supreme Court

did not find the executive clemency instructions given to be "harmless

error," but rather, to be "no error."

yreover, even if the federal court of appeals could "reweigh"

a non-weighing "deathworthiness" factor, in lieu of the state court

of appeal orwithstanding all of the authority to the contrary,

this ld not be the caSe in which reweighing would bear any fruit

for the Conditional Cross-petitioners. An argument made to the Court

belo t reached by it, was as follcws: Amongst the 12 juror:

who were seated, 7 jurors expressed the opinion during voir dire that

a finding of guilt as to first degree murder would preclude or probably

preclude his/her decision of life imprisonment with the possibility

of parole. See: ER 33: 68-71

> ER 34: 247-48; ER 36: 619; ER 33

101; ER 640-46; ER 36: 595; ER 35: 433, 437; and ER 36: 708

In Nevada, the "penalty jury" is the same 12 people as the "guilt

phase jury," and 1s picked at the beginning of the trial. NRS

175.552(1)'; 175.021. Pursuant to Morgan v. Illinois, 509 U.S.719,

112 S.Ct. 2222, 2235, 119 L.Ed. 2d 492 (1992), it was constitutional

error to all jurors to sit who were not inclined from the get-go

to retur > of the three available penalty verdicts. Although Morgan

was decided in 1992, Morgan is not a "new rule" to this case because

citing Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), this Court

Simun 394 9.5.. 470,: 88.6 .Ce. 4338; 22 Ue

2d 443 (1969) that prospective jurors must be willing to consider

all of the penalties provided by state law and that they may not be

irrevocably committed before the trial has begun to reject any one.

Boulden, 394 U.S. at 482-83, 89 S.Ct. at 1140. However, this jury

had over half of its members committed to returning either verdicts

of death or life without the possibility of parole, only, from the

jet-go The executive clemency instructions herein told this jury

tnat if it returned a verdict of life without the possibility of

bay

parole, such a judgment could be commuted by the Pardons’ Board,

ich a commutee could thereby be paroled and on the streets within

67)

(

nof the sentence. This combination of factors

neant hat o over half of Gallego’s jury, death was the ni,

realistic option. In view of the blatant Morgan/Boulden constitut:°:na)

error, which has never yet been addressed by any reviewing ccur*

how any revlewlng court could conclude that the "executive clemen-

instructi error here is harmless is completely unfathoman.+

Certainly, Conditional Cross-petitioners do not begin to discuss

point in their Conditional Cross-petition.

Finally, in an attempt to obtain certiorari based upon an al.~ :

2pinions, the Conditional Cross-petitioners suggest that

—

he Nevada Supreme Court’s opinions on the subject matter are in

conflict, at pages 8-9 of the Conditional Petition. That is simply

H Rogers v. State, 101 Nev. 457, 705 P.2d 664 (1985),

cert. denied, 476 U.S. 1130 (1986) and in Petrocelli vy. State, 101

Nev. 46, 692 P.2d 503 (1985), there is nothing indicating that those

Capital appellants were either not eligible or not likely for either

executive clemency or release on parole pursuant thereto, if they

received life without the possibility of parole sentences. In both

cases, the Nevada Supreme Court indicated that it was troubled by

the clemency instruction actually given, but nowhere in either opinion

did the Nevada Supreme Court state that the instruction was either

inaccurate or misleading. See: Rogers, 101 Nev. at 468-69, 705 P.2d

at 672; Petrocelli, 101 Nev. at 54-56, 692 P.2d at 509-11.

In contrast, however, in Geary v. State, 112 Nev. 1434, 930 P.2d

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00)

vacated the death penalty because

he executive clemency instruction given there, although complying

with the Nevada Supreme Court’s directive of the appropriate executive

clemency instruction to give per Petrocelli, was unconstitutional

ly, for the same reason that it was unconstitutional in

this case; per the terms of NRS 213.1099(4), at the time Geary was

convicted, he was not eligible for parole, even if the sentence was

commuted. 30 FP. 2a ak. 74, The instruction, coupled with the

mislead the jury into believing that, inorder

to avoid the specter of Geary’s being released into society, had to

eer

choose death. 930: F268 at. 726.

than two months prior to Gallego, or Jones v. State, 101 Nev. 573,

707 P.2d 1128 (1985). There, the Nevada Supreme Court vacated the

death penalty on that appellant, finding that the jury may have imposed

the death sentence therein arbitrarily and under the influence of

passion, based upon the prosecutor’s suggestion to the jury that a

sentence of life without the possibility of parole could be commuted,

but a sentence of death could not. The latter statement was

inaccurate, and thus, the argument as a whole was misleading. Jones,

101 Nev. at 580-81, 707 P.2d at 1133-34.

Taken together, Rogers, Petrocelli, Geary and Jones stand for

An executive clemency instruction which

}

is neither inaccurate nor misleading is not unconstitutional; but

an executive clemency instruction which is either inaccurate or

misleading is. As we shall next show, that is also precisely the

State of federal law. There is simply nothing inconsistent with how

lanl

the Nevada Supreme Court has handled this issue, except in Gallego

at 101 Nev. 782, but the handling there was corrected at 124 F.3<

1065.

C. THIS COURT SHOULD NOT GRANT CERTIORARI ON CONDITIONAL CROSS-

PETITIONER’ S ASSERTION THAT THE COURT OF APPEALS INCORRECTLY DETERMINED

THAT THE EXECUTIVE CLEMENCY INSTRUCTION GIVEN HEREIN VIOLATED THE

EIGHTH AMENDMENT

Very frankly, in spite of the length of the Ninth Circuit’s

published opinion at 124 F.3d 1065, that court’s handling of most

of the issues was quite summary. The exception was this issue — the

‘

one and only issue upon which Gallego’s position was found to be

meritorious — and the Ninth Circuit rendered a very thorough,

he bottom line of the Ninth Circuit’s journey through the

jurisprudence of this issue is that, prior to the final state court

disposition herein in December 1985, the hallmark of a constitutional

executive clemency instruction is one that is _accurate and not

Misleading. See: Caldwell v. Mississippi, 472 U.S. 320, 342, 105

S.Ct. 2633, 2646, 86 L.Ed. 2d. 231 (1985). [J.O’Connor, concurring].

Conditional Cross-petitioners would have this Court hold that an

executive clemency instruction which is technically not an incorrect

Statement of the law, but which nevertheless is misleading in terms

of its import, does not violate the constitution as long as it and

the prosecutor do not expressly invite the jury to speculate upon

its meaning, and thereby return a death penalty verdict as a result

of the misimpression created thereby. But, as the Ninth Circuit noted

.3d at 1075, this type of thinking simply has not passed muster

with this Court in cases such as Gurdner v. Florida, 430 U.S. 349

(1977), and Jurak v. Texas, 428 U.S. 262 (1976), as well as Ramos

alifornia, 463 U.S. 992 (1983) and Caldwell, ante.

Conditional cross-petitioners have further set up their argument

to say that, in order to grant Gallego habeas relief, the Ninth Circuit

in fact applied the "new rule" of Simmons v. South Carolina, 512 U.S.

154, 114 S.Ct. 2187, 129 L.Ed. 2d 133 (1994), in violation of 0’ Del]

v. Netherland, 7 a ; eet Beles DECR, GAO te. Oe. 2a 252. (2997).

But the Ninth Circuit probably gave its greatest degree of reliance

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use sucn a sentence might be commuted and the defendan

t be released into society. Jones, 101 Nev. at 579-81

: we Say "“lronically," because NRS 213.1099 was i

sallego was decided, yet the Nevada Supreme Court

~ either that statute or Jones in its opinion

f is the reason that prosecutors seek to have "executive

ructions given; and equally as obviously, they n’t

em given so that the jury can ignore them and not think

may mean. And, in this case, what with over half

ted being in favor of no possibility of any rel

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IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 96-99006

D.C. No. CV-N-93-631-HDM

(Nevada, Reno)

GERALD ARMOND GALLEGO,

Petitioner-Appellant.

vs.

E. K. MCDANIEL, et al.,

Respondents~Appellees.

Appeal from the United States District Court

for the District of Nevada

ANSWERING BRIEF OF APPELLEES

RICHARD F. CORNELL, ESQ. FRANKIE SUE DEL PAPA

150 Ridge Street, 2nd Floor Attorney General

Reno, Nevada 89501 ROBERT E. WIELAND

Deputy Attorney General

Criminal Justice Division

Heroes’ Memorial Building

Capitol Complex

Carson City, Nevada 89710

ATTORNEY FOR PETITIONER- ATTORNEY FOR RESPONDENTS-

APPELLANT. ; APPELLEES.

At trial, GALLEGO did not show good cause in support of his:

| :

| / f

motion to continue his trial. As a result, there was not an abuse)

, of discretion for the failure to grant his motion for continuance,

4 , nor was there a violation of due process. However, should this.

5 | court determine that the trial court abused its discretion, this

a error does not rise to the level of a federal due process error)

7 | because his trial was not arbitrary or fundamentally unfair vt

8 GALLEGO pointed to no witnesses below who, but for time

9 | limitations prior to and during trial, could have been produced.

10 | G. The Federal District Correctly Denied Federal Habeas Relief,

On The Claim Presented In Ground Ten Of The Instant Federal.

12 Petition.

13 | GALLEGO alleged in ground ten that:

14 | The trial court denied petitioner a fair

| penalty hearing and due process of law by

15 | instructing the jury at the penalty hearing

that executive clemency was available to a

16 person sentenced to life without possibility

I of parole.

17 |

18 | At the penalty phase of GALLEGO’s trial, the jury received

19 the following instructions:

20 . Instruction No. 5, in its entirety, states:

| ; The punishment of death may be imposed

only if one or more of the aggravating

2? circumstances are found and any mitigating

| circumstance or circumstances which are found

3 do not outweigh the aggravating circumstance

or circumstances.

Otherwise, the punishment imposed shall

25 be imprisonment in the state prison for life

with or without the possibility of parole.

26 ,

You are instructed that the sentence of

7 life imprisonment without the possibility of

parole does not exclude executive clemency.

28 :

aco: 84

NE bans

a, Co

If the punishment is fixed at life

imprisonment with the possibility of parole,

eligibility for parole begins when a minimum

of ten years has been served.

Instruction No. 6

Executive clemency involves a decision

by the State Board of Pardon Commissioners to

commute or reduce a defendant’s sentence from

life without possibility of parole to life

with possibility of parole.

Executive clemency may also involve a

decision by the State Board of Pardon

Commissioners to shorten the time a defendant

is eligible for parole.

The State Board of Pardon Commissioners

consists of the Governor, the Attorney

General,and the five Justices of the Supreme

Court of the State of Nevada. The Board can

change a sentence only by a majority vote,

and only if the Governor is in the majority

voting *o change the sentence.

CR 66, Exhibit 222(B) at 2036. At trial, GALLEGO objected to

Penalty Instruction No. 6 on the basis that the law as stated in

the instruction could possibly be changed by public referendun.

In his petition, GALLEGO shifted the focus of his arguments to

whether the instruction adequately explained Nevada law on.

executive clemency. om 2, GR. 36.

"In analyzing whether a sentencing phase instruction violates

the Eighth Amendment, a court must determine if there is a

reasonable likelihood that the jury applied the instruction in

such a way that prevented consideration of relevant mitigating)

evidence." Hamilton v. Vasquez, 17 F.3d 1149, 1160 (9th Cir.) |

cert. denied sub nom. Calderon v. Hamilton, 114 S.Ct. 2706 (1994),

(citing Boyde v. California, 494 U.S. 370, 380 (1990)). Thus, if

a penaity phase instruction "prevents the jury from giving a

ae ye ; :

reasoned moral response to the petitioner’s mitigating evidence,

/ la

or creates the risk that the death penalty would be imposed

| despite evidence which may call for a life sentence," it violates

the eighth amendment. Id. (citations omitted). In Hamilton, the

Ninth Circuit found constitutional error in a lengthy instruction

'on commutation that was designed to correct a misleading

| instruction which was given concurrently. The court found the

| combination of instructions to be unacceptable because they were

confusing and forced the jury to speculate on the likelihood of|

commutation. Id. at 1163. GALLEGO did not argue below that the

executive clemency instruction given to the jury at the sentencing

phase of his trial misstated the law. Rather, he contended that

it was misleading because it failed to adequately and accurately)

explain how semote the possibility of parole would be in his case. |

CR 36 at 79-80. In Nevada, the parole board (as distinguished|

from the pardons board) may not release a prisoner who has his

life sentence commuted to include the possibility of parole

unless,

it finds that the prisoner has served at

least 20 consecutive years in the _ state

prison, is not under an order that he be

detained to answer for a crime or violation

of parole or probation in another

jurisdiction, and that he has no history of:

(a) Recent misconduct in the

institution, and that he has been recommended

for parole by the director of the department

of prisons;

(b) Repetitive criminal conduct;

of alcohol or drugs;

(d) Repetitive sexual deviance,

violence or aggression; or

(e) Failure in parole, probation, work

release or similar programs.

NRS 213.1099-4 (provision enacted 1981 Nev. Stat. 873).

Although the Penalty Instruction No. 6 failed to explain the

intricate limitations on the parole of a prisoner with a commuted

' sentence, it was not so inaccurate or misleading that this court

finds it reasonably likely that the jury failed to consider

relevant mitigating factors. Each statement in the instructions

accurately stated the law. An instruction which contains all of

| the factors relevant to clemency and parole runs the risk of

unduly focusing the jury’s attention on those issues, thereby

encouraging the jurors to speculate on the likelihood that the

| defendant’s sentence would be commuted. And where a clemency

| instruction is allowed to inform the jury that a sentence of life

| without the possibility of parole is subject to executive

| clemency, brevity is valued. See generally Hamilton, 17 F.3d at

1160, 1162, 1163 (repeatedly noting the "two-sentence instruction"

| approved in California v. Ramos, 463 U.S. 992 (1983)).

Hamilton is distinguishable from this case. In that case,

the instruction at issue began with the two-sentence clemency)

| instruction approved by the United States Supreme Court in Ramos.

Hamilton, 17 F.3d at 1161-62. However, the instruction went on to

partially discuss a limitation on the commutation power for twice-

convicted felons. It also inaccurately suggested that the

imposition of any life sentence would cause Hamilton to be

eligible for parole in less than seventeen years. Id. Further, |

the disapproved instruction cautioned the jury not to speculate on

the likelihood that Hamilton would be pardoned or paroled. Id.

On these facts, the court found that the "jury .. . was diverted

from (the task of considering relevant mitigating evidence] by

‘having its attention focused on commutation procedures rather than

the significant mitigating evidence defense counsel introduced at

| the penalty phase." Id. at 1163.

Although Penalty Instruction No. 6 did discuss the.

composition of the Nevada State Board of Pardon Commissioners and_|

that a sentence can be changed cnly by a majority of the Pardons

Board which must include the governor, it did not urge the jury to

speculate on the possible votes. Neither did the instruction

inaccurately suggest that any life sentence would automatically

lead to parole eligibility. |

In addition to the objectionable contert of the instruction, |

the Hamilton court found that "[t]he probability of the saree

improper speculation was compounded by the prosecutor’s

_inappropriate assertion in closing argument that Hamilton, if

| sentenced to prison, would be conniving and devising ways to

| manipulate the system and get out." 17 F.3d at 1162. In closing

| argument, the prosecution relied on “inflammatory and largely

irrelevant letters written by Hamilton" to support its contention.

Id. The prosecutor in GALLEGO’s trial did not engage in such

conduct.

GALLEGO contends that Instruction No. 5 was inaccurate

because it stated that if the punishment is fixed at life

imprisonment with the possibility of parole, eligibility for

parole begins when a minimum of ten years has been served. |

GALLEGO- states that it is inaccurate because NRS 213.1099-4)

requires that GALLEGO serve @ minimum of 20 years. GALLEGO’ s|

statement is false and a deliberate attempt to mislead this Court.

Had the jury imposed a sentence of life with the possibility of!

parole as stated by the instruction, GALLEGO would have been

eligible for parole within ten years as stated by the instruction.

NRS 200.030, 1977 Statutes of Nevada 864. In his brief GALLEGO

has deliberately misinterpreted NRS 213.1099-4 to suggest that if]

the jury sentenced him to life with the possibility of parole, NRS|

nats |

213.1099-4 would apply and GALLEGO would have to serve 20 years)

before he was eligible for parole, contrary to the instruction.

That suggestion is false. NRS 213.1099-4 would apply only if

GALLEGO had been sentenced to life imprisonment without the

possibility of parole and the pardons board (as distinguished from

the parole board) and had commuted his sentence to a sentence’

allowing parole, i.e., life with the possibility of parole and the

parole board was going to consider parole.

H. The Federal District Court Correctly Denied Federal Habeas

Relief On His Claim Advanced In Ground Fourteen Of The Petition.

GALLEGO alleged in ground fourteen that:

Petitioner was deprived of [the]

effective assistance of counsel, in that

trial counsel failed to challenge the Wey

contingent, revocable plea bargain of the

alleged accomplice as violative of due

process of law.

Plea bargains are often contingent upon an agreement that the

beneficiary will testify against others. See United States v.

Moody, 778 F.2d 1380, 1385, amended 791 F.2d 707 (9th Cir. 1986).

Further, where a plea agreement requires the witness to testify

truthfully and completely, the agreement is not so coercive that

it violates due process simply because the benefit is contingent

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 9396-99006

D.C. No. CV-N-93-631-HDM

(Nevada, Reno)

GERALD ARMOND GALLEGO,

Petitioner-Appellant.

vs.

E. K. MCDANIEL, et al.,

Respondents-~Appellees.

Appeal from the United States District Court

for the District of Nevada

ANSWERING BRIEF OF APPELLEES

RICHARD F. CORNELL, ESQ. FRANKIE SUE DEL PAPA

150 Ridge Street, 2nd Floor Attorney General

Reno, Nevada 89501 ROBERT E. WIELAND

Deputy Attorney General

Criminal Justice Division

Heroes’ Memorial Building

Capitol Complex

Carson City, Nevada 89710

ATTORNEY FOR PETITIONER- ATTORNEY FOR RESPONDENTS~-

APPELLANT. APPELLEES.

C C

Cartwright, in light of the crimes and the nature of the crimes

and GALLEGO’s prior criminal record, would not have resulted ina

different sentence. Having failed to establish that presentation.

of such evidence probably would have resulted in a lesser

sentence, GALLEGO cannot establish that trial counsel was.

ineffective for failing to present such evidence, and, thus, |

cannot establish prejudice to overcome procedural default. The

federal district court properly found that ground 39 was”

procedurally barred.

M. If This Court Should Find Error, Such Error Is Harmless.

If this Court should find error, Respondents respectfully)

submit that any such error is harmless. Further, respondents.

|; submit that this court should apply the harmless-error standard

enunciated in Brecht v. Abrahamson, me , 333 Se. 5788!

(1993). In Brecht, the United States Supreme Court held that the

standard for determining whether habeas relief must be granted is |

| whether the Doyle error "had substantial and injurious effect or

influence in determining the jury’s verdict." If this Court.

| should find error, this Court should determine whether the error

| had a substantial and injurious effect or influence in determining

the jury’s verdict.

124

CRIMES AGAINST THE PERSON

200.035

aggravating circumstances sufficiently specific wo

render terms “torture.” “depravity of mind” and

“munlaton™” not unconsntnonally vague. Deut-

scher v. Whitey, 682 F. Supp. 1098 (D. Nev

1988)

Depravity instruction not equivalent to

insanity instruction and not constitutionally

improper. NRS 200.033 provides that first de

gree murder may be aggravated if jury finds that

murder involved torture, depravity of mind or

mutilanon of vicum. On pennon for wrt of ha

beas corpus, pehtioner contended that depravity

instruction unconsotunonally allowed jury to find

aggravating circumstance from fact that defendant

was unable to tell difference between mght and

wrong of to appreciate value of human life. Court

found that instructon was not equivalent to isan

ity instrucnon because msamity instrucnon requires

defendant w suffer from mental disease or defect

which prevented hum from understanding nght

NRS 200.035

Circumstances mitigating first degree murder.

and wrong. Depravity instrucnon merely requires

that there be condinon of mind that defendant

lacks moral sense and possesses evi or vile state

of mind. Therefore. there was no consttunonal

impropriety mM using petiponer's depraved state of

mind aS aggravating circumstance against him

Deutscher v. Whitley. 682 F. Supp. 1098 (D

Nev. 1988)

Jury instruction concerning aggravating

circumstance of depravity of mind was uncon-

stitutional. Jury instruction concerning aggravat

ing circumstance of depravity of mind see NRS

200.033) that failed to channel and lumu jury's

discrenon in imposing death penalty did not suffi

ciendy minimue msk of wholly arburary and

Capricious achon and was unconsntunhonal Deut

scher v. Whitley. 884 F.2d 1152 (Hh Cur 1989)

cited, Baal v State. 106 Nev 69. at 74. 787 P ld

391 (1990)

Murder of

the first degree may be mitigated by any of the following circumstances, even

though the mitigating circumstance is not sufficient to constitute a defense or re

duce the degree of the crime:

1. The defendant has no significant history of prior criminal activity

2. The murder was comunitted while the defendant was under the influence of

extreme mental or emotional disturbance

3. The victim was a participant in the defendant's criminal conduct or con

sented to the act.

4. The defendant was an accomplice in a murder committed by another person

and his participation in the murder was relatively minor

5S. The defendant acted under duress or under the domination of another per

son

6. The youth of the defendant at the time of the crime

7. Any other mitigating circumstance

(Added to NRS by 1977, 1543)

WEST PUBLISHING CO.

Homicide <== 357(4)

WESTLAW Topi No. 203.

C.J.S. Homicide §§ 367. 368.

NEVADA CASES.

Death penalty was not cruel and unusual

punishment. Death penalty imposed pursuant to

NRS 175.552 et seq.. 200.033 and 200.035 was

not cruel and unusual punishment and did not

offend either U.S. Consmtution or Nevada consn-

tunon (see Nev. Art. 1, § 6). Bishop v. State, 95

Nev. S11, 597 P.2d 273 (1979), cited, Deutscher

v. State, 95 Nev. 669. at 677, 601 P.2d 407

(1979), Lenhard v. Wolff, 443 U.S. 1306, 100 S

Ct. 3 (1979), Rogers v. State, 101 Nev. 457. at

465, 705 P.2d 664 (1985), Ford v. State, 102

Nev. 126, at 138, 717 P.2d 27 (1986), see also

Nevius v. State, 101 Nev. 238, 699 P.2d 1053

(1985), Williams v. State, 103 Nev. 227, 737

P_2d 508 (1987)

Effect of disregarding defendant's mental

and physical impairments as mitigating circum-

Stamees. At penalty hearing. pursuant NRS

175.558, for defendant convicted of murder of

first degree. panel of three judges dui nxt umprop

erly disregard defendant's vanous menial and

physical umpairments in finding that no mit ganing

circumstances (see NRS 200 035) crusted «hah

were sufficient to outweigh aggravanng um

stances. because. after consxicring <saleme

panel could have reasonably found tui Je'en

dant’s mental condimon was only cura ter Jin

der which did not bar imposipon of weuwn of

death. Farmer v. State, 101 Nev 419 <P 2s

149 (1985). cuted. Baal v. State. |b Nee OW at

74, 787 P.2d 391 (1990)

Comments concerning youth of defendant

not improper at penalty bearing. Pr ~«.uew +

comments at penalty hearing for murder 4 rw

degree (see NRS 175.552) regarding Jefe utare s

200-41 a)

a ne ee

175.552 TRIAL

the prosecuting attorney, before the commencement of the trial, files and serves |

upon the defendant a written notice of his intention to request such a hearing

2. A hearing requested pursuant to subsection | must be conducted before

(a) The court imposes its sentence; or

(b) A separate penalty hearing is conducted

3. At the hearing, only evidence concerning the question of whether the of.

fense was sexually motivated may be presented. The prosecuting attorney must

prove beyond a reasonable doubt that the offense was sexually motivated

4. The court shall enter its finding in the record

5. For the purposes of this section, an offense is “sexually motivated” if

. one of the purposes for which the person committed the offense was his sexual

gratification.

(Added to NRS by 1995, 413; A 1997, 1666)

PENALTY HEARING FOR FIRST DEGREE MURDER

NRS 175.552 Requirement; jury; panel of judges; evidence; waiver.

~—_ 1. Except as otherwise provided in subsection 2, in every case in which there

is a finding that a defendant is guilty of murder of the first degree, whether or not

the death penalty is sought, the court shall conduct a separate penalty hearing. The

separate penalty hearing must be conducted as follows

(a) If the finding is made by a jury, the separate penalty hearing must be con-

ducted in the trial court before the trial jury, as soon as practicable

(b) If the finding is made upon a plea of guilty or guilty but mentally ill or a

trial without a jury and the death penalty is sought, the separate penalty hearing

must be conducted before a panel of three district judges, as soon as practicable

trial without a jury and the death penalty is not sought, the separate penalty hearing

must be conducted before the judge who conducted the trial or who accepted the

plea, as soon as practicable.

2. In a case in which the death penalty is not sought, the parties may by

stipulation waive the separate penalty hearing required in subsection |. When

stipulating to such a waiver, the parties may also include an agreement to have the

t sentence, if any, imposed by the trial judge. Any Stipulation pursuant to this sub-

section must be in writing and signed by the defendant, his attorney, if any, and the

prosecuting attorney.

3. In the hearing, evidence may be presented concerning aggravating and

mitigating circumstances relative to the offense, defendant or victim and on any

other matter which the court deems relevant to sentence, whether or not the ev:

dence is ordinarily admissible. Evidence may be offered to refute hearsay matters

No evidence which was secured in violation of the Constitution of the United States

or the constitution of the State of Nevada may be introduced. The state may intro

duce evidence of additional aggravating circumstances as set forth in NRS 200 033

other than the aggravated nature of the offense itself, only if it has been disclosed

to the defendant before the commencement of the penalty hearing.

4. Ina case in which the death penalty is not sought, the jury or the trial judge

shall determine whether the defendant should be sentenced to life with the possi bul

ity of parole or life without the possibility of parole.

(Added to NRS by 1977, 1543; A 1993, 322; 1995, 258, 2451)

(1997) 175-64

IN THE SUPREME COURT OF THE UNITED STATES

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.