Rodriguez (Pedro) v. State (Death Penalty-Pc) ( 2022 )

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IN THE SUPREME COURT OF THE STATE OF NEVADA
PEDRO RODRIGUEZ, No. 83169
Appellant,
VS. : Ay
THE STATE OF NEVADA, F L. iE i
Respondent. AUG 19 2027
ELIZASETH A. BROWN
CLERK O€ SUPREME COURT
a. Leesan.
DEPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying appellant
Pedro Rodriguez’s postconviction petition for a writ of habeas corpus.
Second Judicial District Court, Washoe County; Lynne K. Simons, Judge.
Rodriguez, Robert Paul Servin, and Brian Lee Allen, robbed
and murdered Kimberly Fondy on April 5, 1998. Rodriguez and Servin were
tried jointly and found guilty of first-degree murder with the use of a deadly
weapon and robbery with the use of a deadly weapon. The jury sentenced
Rodriguez to death for the murder and the district court sentenced
Rodriguez to two equal and consecutive terms of 72 to 180 months for the
robbery with the use of a deadly weapon. This court affirmed the
convictions and sentences on appeal. Rodriguez v. State, 117 Nev. 800, 32
P.3d 773 (2001). Rodriguez successfully challenged his sentence in a
postconviction petition for a writ of habeas corpus. See Rodriguez v. State,
No. 48291, 2009 WL 3711919 (Nev. Nov. 3, 2009) (Order Affirming in Part,
Reversing in Part and Remanding). At a new penalty hearing, a jury again
imposed a death sentence, which this court upheld on appeal. See Rodriguez
v. State, No. 63423, 2015 WL 5383890 (Nev. Sept. 11, 2015) (Order of
Affirmance).
2232-25900
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In this appeal from an order dismissing another postconviction
habeas petition, Rodriguez argues that penalty phase counsel should have
challenged the admission of “other matter” evidence, namely evidence about
an incident in which he threatened a resident and police officer at a trailer
park during his arrest on June 7, 1997, and the events resulting in a
temporary protective order (TPO), on the ground that its probative value
was outweighed by the danger of unfair prejudice. He contends that these
incidents that occurred roughly 16 years before his penalty phase retrial in
2013 did not provide an accurate depiction of who he was at the time of the
penalty phase retrial.
Under the two-part test established by the United States
Supreme Court in Strickland v. Washington, a petitioner must show that
(1) counsel’s performance fell below an objective standard of reasonableness
(deficient performance) and (2) a reasonable probability of a different
outcome but for counsel’s deficient performance (prejudice). 466 U.S. 668,
687-88, 694 (1984); Kirksey v. State, 112 Nev. 980, 987-88, 998, 923 P.2d
1102, 1107, 1114 (1996). A court need not consider both prongs of the
Strickland test if a petitioner makes an insufficient showing on either
prong. Strickland, 466 U.S. at 697. For purposes of the deficiency prong,
counsel is strongly presumed to have provided adequate assistance and
exercised reasonable professional judgment in all significant decisions. Id.
at 690; see Ennis v. State, 122 Nev. 694, 704-05, 137 P.3d 1095, 1102 (2006)
(“In order to avoid the distorting effects of hindsight, the evaluation begins
with the strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” (internal quotation marks
omitted)).
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Rodriguez’s ineffective-assistance claim turns on whether
counsel should have challenged the admission of evidence, whether that
challenge would have been successful, and whether there was a reasonable
likelihood of a different outcome at the penalty hearing had the evidence
been excluded. See Kirksey, 112 Nev. at 990, 923 P.2d at 1109. The district
court has broad discretion to admit evidence in a capital penalty hearing.
NRS 175.552(3); McKenna v. State, 114 Nev. 1044, 1051, 968 P.2d 739, 744
(1998). Pursuant to NRS 175.552(3), during a capital penalty 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 the sentence, whether or not the
evidence is ordinarily admissible.” In this vein, “other matter” evidence
may be introduced by the State “for jurors to consider in deciding on an
appropriate sentence after they have determined whether the defendant is
or is not eligible for death.” Hollaway v. State, 116 Nev. 732, 746, 6 P.3d
987, 997 (2000), overruled on other grounds by Lisle v. State, 131 Nev. 356,
351 P.3d 725 (2015).
Evidence of prior convictions and uncharged bad acts is
generally admissible during a penalty hearing. Johnson v. State, 122 Nev.
1344, 1353, 148 P.3d 767, 774 (2006); see Gallego v. State, 117 Nev. 348,
369, 23 P.38d 227, 241 (2001) (recognizing that evidence of police
investigations and uncharged crimes may be admissible in a capital penalty
hearing), overruled on other grounds by Nunnery v. State, 127 Nev. 749, 263
P.3d 235 (2011); Emil v. State, 105 Nev. 858, 866, 784 P.2d 956, 961 (1989)
(concluding that district court did not abuse its discretion in admitting
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testimony about prior murder conviction during penalty hearing). Prior bad
acts are relevant penalty phase evidence because a sentencing decision
“should be based on the entirety of a defendant’s character, record, and the
circumstances of the offense.” Nunnery, 127 Nev. at 769, 263 P.3d at 249(internal quotation marks omitted); see Mason v. State, 118 Nev. 554, 562,
51 P.3d 521, 526 (2002) (recognizing that evidence of unrelated offenses may
be admissible during a capital penalty hearing).
Relevant character evidence is not admissible when its
probative value is substantially outweighed by the danger of unfair
prejudice. NRS 48.025; NRS 48.035(1); Johnson, 122 Nev. at 1353, 148 P.3d
at 774. While prior bad act evidence is “obviously prejudicial,” whether the
evidence is unfairly prejudicial depends on its probative value. McConnell
v. State, 120 Nev. 10438, 1058, 102 P.3d 606, 617 (2004). Guilt phase
evidence is unfairly prejudicial when it appeals to jurors’ emotion or “lure[s]
the [jurors] into declaring guilt on a ground different from proof specific to
the offense charged.” State v. District Court (Armstrong), 127 Nev. 927,
933-34, 267 P.3d 777, 781 (2011) (quoting Old Chief v. United States, 519
U.S. 172, 180 (1997)). But other bad act evidence may not be unfairly
prejudicial when introduced during a capital penalty hearing because it can
be “probative of [a defendant’s] cruel and violent character and lack of
remorse,” McConnell, 120 Nev. at 1058, 102 P.3d at 617, or “reveal[s] a
pattern of escalating violent criminal behavior,” Johnson, 122 Nev. at 1354,
148 P.3d at 774.
Here, the other acts involving threats made during the trailer
park incident and the threats set forth in Gabriella Ruiz’s TPO had
significant probative value in showing Rodriguez’s character and the
escalation of his pattern of behavior leading up to Fondy’s murder and that
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the murder was not an isolated instance of violence. See Witter v. State, 112
Nev. 908, 921, 921 P.2d 886, 895 (1996) (holding that defendant’s veiled
threat to arresting officers was probative to showing future dangerousness
and was not unfairly prejudicial), abrogated on other grounds by Nunnery,
127 Nev. 749, 263 P.3d 235. Thus, an objection would have been futile.
Counsel is not objectively unreasonable in failing to object to the other act
evidence under these circumstances. Ennis v. State, 122 Nev. 694, 706, 137
P.3d 1095, 1103 (2006) (“Trial counsel need not lodge futile objections to
avoid ineffective assistance of counsel claims.”).
Relying on Phillips v. State, 121 Nev. 591, 119 P.3d 711 (2005),
receded from on other grounds by Cortinas v. State, 124 Nev. 1013, 195 P.3d
315 (2008), Rodriguez asserts that the prior bad acts were unfairly
prejudicial because they were significantly remote from the penalty phase
retrial. But the holding in Phillips is inapposite. Remoteness in Phillips
was not measured as the time between the prior bad act and the current
trial but instead as the time between the prior bad act and the charged
conduct. Id. at 602, 119 P.3d at 719; see also Gallego v. State, 101 Nev. 782,
789, 711 P.2d 856, 861 (1985) (concluding that prior killings “were not
remote in time from the killing here considered” and therefore were not so
remote as to be inadmissible under NRS 48.035(1)).
Rodriguez further failed to demonstrate prejudice.! The jury
heard evidence that Rodriguez led two codefendants to Fondy’s home for the
1As Rodriguez introduced mitigation testimony from Ruiz, the State
could, and in fact did, cross-examine her about her relationship with
Rodriguez, the abuse that prompted her to obtain a TPO, and the threats
she later received from him and his family.
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purpose of robbing her. Due to their numbers, weaponry, and her disability
requiring the use of a wheelchair, they handily subdued her and prevented
her from completing a call for help. While detaining her in the bathroom of
her home, they repeatedly struck her causing cuts and abrasions. After
Rodriguez completed the robbery, his compatriot shot Fondy four times,
killing her. Afterward, the three assailants bragged about the robbery and
their efforts to inflict more suffering on Fondy. The jury also heard evidence
that Rodriguez had been convicted of sexually assaulting a fourteen-year-
old girl at knifepoint. The testimony about this crime demonstrated that
Rodriguez was capable of significant, callous violence against a victim he
happened upon in a friend’s home. Witnesses described how he had wanted
to kill the victim to avoid arrest and had arrived at that decision almost
immediately and after very little consideration. In addition to Rodriguez’s
criminal history, the State introduced expert psychological testimony
opining that he was highly likely to reoffend violently based on his exhibited
characteristics of antisocial personality disorder with narcissistic features.
Considering the evidence introduced about the murder and the evidence
supporting the aggravating circumstances, Rodriguez has not alleged
sufficient facts to show a reasonable likelihood that he would not have been
sentenced to death had the jury not heard testimony about the two prior
uncharged acts. Therefore, the district court did not err in denying this
claim without holding an evidentiary hearing. See Hargrove v. State, 100
Nev. 498, 502-03, 686 P.2d 222, 225 (1984) (holding that a postconviction
petitioner is entitled to an evidentiary hearing on claims supported by
specific factual allegations that would have entitled petitioner to relief); see
also Johnson v. State, 117 Nev. 153, 161, 17 P.38d 1008, 1013 (2001) (noting
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that evidentiary hearing may “be of little value” when the issue presented
is purely legal). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
.)
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cc: Hon. Lynne K. Simons, District Judge
Edward T. Reed
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk