Richardson v. State

381 P.3d 656 (Table)

Thomas RICHARDSON, Appellant,

v.The STATE of Nevada, Respondent.

No. 54951.

Supreme Court of Nevada.

Nov. 9, 2012.

Special Public Defender

Attorney General/Carson City

Clark County District Attorney

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 first-degree 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 phases 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 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, 106 S.Ct. 938, 89 L.Ed.2d 50 (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, 183–84, 980 P.2d 1062, 1067 (1999). Therefore, the district court 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 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 inferences from the facts in the record.’ “ (quoting U.S. v. 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, 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”). 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. Second, as discussed above, Dehnart's testimony was corroborated on other 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 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. See 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...