State Vs. Watson, Iii (John) (Death Penalty-Pc) ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 78780
Appellant, 17 L
vs.
JOHN MATTHIAS WATSON, III,
Respondent. DEC 3 2021
Euita A. BPOWN
CLE ikPREUE COURT
i
BY
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order granting
appellant's postconviction petition for a writ of habeas corpus. Eighth
Judicial District Court, Clark County; Michelle Leavitt, Judge.
Appellant John Watson and his wife, Everilda "Evey" Watson,
travelled to Las Vegas, Nevada, and while there, Watson killed Evey and
disposed of her body. A jury convicted him of first-degree kidnapping and
first-degree murder with the use of a deadly weapon and sentenced him to
death. This court affirmed the judgment of conviction and death sentence.
Watson v. State, 130 Nev. 764, 335 P.3d 157 (2014). Watson filed a timely
postconviction petition for a writ of habeas corpus, which the district court
granted after concluding that trial counsel acted unreasonably by conceding
Watson's guilt during closing argument when Watson had insisted on
maintaining his innocence. The State appeals. Because we agree with the
State that trial counsel did not concede Watson's guilt, we reverse and
remand.
The United States Supreme Court has recognimd there are
circumstances where it may be reasonable for trial counsel to concede a
client's guilt. See, e.g., Florida v. Nixon, 543 U.S. 175 (2004). "Defense
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counsel undoubtedly has a duty to discuss potential strategies with the
defendant." Id. at 178. Consequently prudent counsel should explain any
strategy that approaches a concession. See id. at 192 (recognizing that
counsel should inform the defendant of the strategy he believes is in the
defendant's best interest); cf. McCoy v. Louisiana, 138 S. Ct. 1500, 1509
(2018) (Counsel, in any case, must still develop a trial strategy and discuss
it with her client, explaining why, in her view, conceding guilt would be the
best option." (citation omitted)). But "[w]hen a client expressly asserts that
the objective of 'his defence is to maintain innocence of the charged criminal
acts, his lawyer must abide by that objective and may not override it by
conceding guilt." McCoy, 138 S. Ct. at 1509.
Here, the district court concluded that Watson's expressed
objective was to maintain his innocence and that trial counsel conceded
guilt during closing argument. The State challenges both conclusions. We,
however, address only the concession issue because our decision on that
issue is dispositive.'
Courts generally find a concession of guilt only when it is
explicit. For example, an attorney concedes a client's guilt by stating that
the jury should find the client guilty of the charged crime or opining that
the client is guilty, see, e.g., Francis v. Spraggins, 720 F.2d 1190, 1193 n.7
(11th Cir. 1983) CI think he went in the house and think he committed
the crime of murder probably . . ."), receded from. on other grounds by
'The State argues that McCoy announced a new constitutional rule
and does not apply retroactively. We need not address that issue given our
conclusion that trial counsel did not concede Watson's guilt.
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Presnell v. Kernp, 835 F.2d 1567 (11th Cir. 1988); People v. Lopez, 242 Cal.
Rptr. 3d 451, 456 (Ct. App. 2019) (I've never disputed it. He's guilty of it;
he should be punished for it."); People v. Hattery, 488 N.E.2d 513, 517 (111.
1985) (recognizing explicit statement that defendant did everything the
State described in opening statement as concession of guilt), or by
discouraging the jury from acquitting the client, State v. Matthews, 591
S.E.2d 535, 539 (N.C. 2004) CI'm not saying you should find [my client] not
guilty. That's very unusual. And it kind of cuts against the grain of a
defense lawyer. But I'm telling you in this case you ought not to find him
not guilty because he is guilty of something."). And although the Supreme
Court has not explained what counts as "conceding guilt," in McCoy the
concession was explicit. See McCoy, 138 S. Ct. at 1506-07. Defense counsel
told the jury during opening statement "there was 'no way reasonably
possible that they could hear the prosecution's evidence and reach 'any
other conclusion than Robert McCoy was the cause of these individuals'
death"' and "the evidence is unambiguous,"my client committed three
murders'" and then reiterated during closing argument that his client "was
the killer." Id. While a few courts have found implied concessions of guilt,
it is only when "a 'reasonable person' viewing the 'totality of the
circumstances' would conclude that counsel conceded the defendant's guilt."
Torres v. State, 688 N.W.2d 569, 573 (Minn. 2004). Under either approach,
we are not convinced that trial counsel conceded Watson's guilt.
During closing arguments, defense counsel attacked the
credibility of witnesses who had testified that Watson openly contemplated
killing Evey and that Watson and Evey had been arguing. He challenged
the State's theory that Watson killed Evey and then used power tools to
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dismember her body in the hotel room, pointing out that there had been no
noise complaints and only a small amount of physical evidence was
recovered from the hotel room. Given that some forensic evidence was found
in the hotel room and Evey had not been seen for several years, defense
counsel acknowledged that Islomething happened in that room" and
"admittedly something happened to Mrs. Watson." But defense counsel
nonetheless maintained that the nature and amount of evidence recovered
from the room did not in-and-of-itself support a conviction for first-degree
murder with the use of a deadly weapon. Counsel then told the jury, "At
most — at most, though 1 don't agree entirely, at most, perhaps you have a
second-degree murder. . . [Old in all candor, I'd like to stand here and say
you have to find [him] not guilty of murder. Well, I'm not an idiot." Counsel
continued to argue that the evidence did not support a conviction for first-
degree murder, "Admittedly, you may very well find him guilty of second-
degree murder, if and only if, you feel that the circumstantial evidence
warrants it."
Counsel did not opine that Watson was guilty or implore the
jury to find him guilty of any offense. And counsel's acknowledgment of the
evidence against Watson and the reality that the victim had not been seen
in four years did not amount to a concession of guilt. See, e.g., United Stales
v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995) (concluding that
counsel's acknowledgment that the events that were the subject of the
prosecution occurred and that some prosecution witnesses were telling the
truth was not a concession of guilt); People v. Wiley, 651 N.E.2d 189, 202-03
(Ill. 1995) (recognizing that admission that defendant may have
participated in some events that were the subject of the prosecution was not
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a concession of guilt); Commonwealth v. Richards, 153 N.E.3d 1226, 1248-
49 (Mass. 2020) (holding that counsel did not concede guilt when he
admitted defendant's involvement in the homicide as he argued defendant
was not guilty of first-degree murder); State v. Gainey, 558 S.E.2d 463, 476
(N.C. 2002) (concluding that counsel did not concede guilt even though
counsel admitted defendant was present during crime, involved in events
attendant to crime, and engaged in other uncharged conduct). Similarly,
counsel did not concede guilt by discussing second-degree murder as an
alternative to the top charge of first-degree murder. Cf. State v. Chambers,
955 N.W.2d 144, 149-50 (Wis. 2021) (concluding that guiding jury toward
lesser included offense did not constitute a concession of guilt). Counsel's
acknowledgement that the jury could find Watson guilty of second-degree
murder was contingent on the jury finding sufficient circumstantial
evidence to support that offense, not on counsel's opinion or concession that
Watson was guilty of that crime. Cf. id. at 151-52 (concluding that counsel's
statement that jury should consider lesser included offense was restatement
ofjury instruction and not a concession of guilt); People v. Bell, 562 N.Y.S.2d
681, 682 (App. Div. 1990) (holding that argument that State rnay have only
proven at most lesser included offense was not a concession of guilt).
Indeed, the judge who presided over the trial, who heard and observed
defense counsel's comments and who then canvassed Watson, stated on the
record that the defense attorney did not say, nor did he intend to say, that
Watson was guilty. Moreover, when queried by the court, Watson stated
that he did not believe that the argument amounted to a concession when
it was uttered.
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Because counsel's argument did not concede guilt, the district
court erred in granting relief on this claim. The district court addressed
only this claim in the petition, concluding that its decision in Watson's favor
on this claim rendered the other claims moot. On remand, the district court
should address the other claims in the petition. This order constitutes our
final disposition of this appeal. Any subsequent appeal shall be docketed as
a new matter. We therefore
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Hardesty
e-k-4-Th' ,J
Parraguirre Stiglich
el.
Cadish Silver
cc: Hon. Michelle Leavitt, District Judge
Attorney General/Carson City
Clark County District Attorney
Resch Law, PLLC d/b/a Conviction Solutions
Eighth District Court Clerk
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