Haberstroh (Richard) v. State (Death Penalty-Direct)

 convicted of a felony involving the use or threat of violence—and,
concluding that the mitigating circumstances did not outweigh the
aggravating circumstances, sentenced him to death. This appeal followed.
Issues relating to jurors
First, Haberstroh argues that the district court erred by
granting the prosecution's challenges for cause against two jurors because
their views on the death penalty did not disqualify them from serving on
the jury. "The test for evaluating whether a juror should have been
removed for cause is whether a prospective juror's views would prevent or
substantially impair the performance of his duties as a juror in accordance
with his instructions and his oath." Weber v. State, 121 Nev. 554, 580, 119
P.3d 107, 125 (2005) (internal quotation marks omitted).
With respect to prospective juror Anwar, in her questionnaire
she expressed her belief in the death penalty but also indicated her
discomfort with it; she expressed that the appropriateness of the death
penalty depended on the nature of the case and that life in prison was the
better option. Her answers during voir dire reflect a stronger opposition to
the death penalty, where she indicated that she would not consider the
death penalty because she did not believe "in killing someone as an option
for punishment," although she acknowledged that if the crime was
significant enough—something akin to mass murder—she might consider
the death penalty. When pressed by the district court as to whether she
could consider the death penalty, she responded that she could not. As to
prospective juror Gregan, he expressed in his questionnaire that he would
consider the death penalty where the crime was• severe but would not
automatically vote for or against it. During voir dire, when asked whether
he could consider all possible punishments, Gregan said that he would
SUPREME COURT
OF
NEVADA
2
(0) I947A
prefer not to sit on a death penalty jury and repeatedly expressed
discomfort with the death penalty. When pressed by the prosecutor and
the district court as to whether he could consider the death penalty, he
responded that he could not. We conclude that the district court did not
abuse its discretion by excusing these two prospective jurors for cause.
See United States v. Gabrion, 719 F.3d 511, 528 (5th Cir. 2013)
(concluding that trial court did not abuse its discretion by excluding
prospective juror who equivocated as to whether he could consider death
penalty); Walker v. State, 635 S.E.2d 740, 746-47 (Ga. 2006) (same); State
v. Tinsley, 143 S.W.3d 722, 733 (Mo. Ct. App. 2004) (same).
Second, Haberstroh argues that the district court abused its
discretion by dismissing juror Henshaw near the end of trial, over his
objection, where there was no misconduct and juror Henshaw indicated
that he could be fair and impartial after revealing to the district court that
he had been contacted the previous day by an investigator working on
behalf of Henshaw's nephew who was a defendant •in an out-of-state
capital prosecution. When asked if his ability to be fair and impartial in
this case was affected by his nephew's circumstances, Henshaw initially
responded that he did not believe that it would affect his ability to be fair
and impartial but that it caused him to "search [his] soul a little bit more."
Henshaw made several subsequent comments about how the information
about his nephew affected him but maintained that he could remain fair
and impartial. In excusing him, the district court concluded that no
misconduct had occurred but acknowledged that Henshaw "did seem
emotional in talking about these matters" and had "obviously" thought
about his nephew's case and what could potentially happen to him.
Noting Henshaw's representation that he could consider all the sentencing
SUPREME COURT
OF
NEVADA
3
(0) 1947A are,
options, the district court nevertheless expressed concern that his
performance as a juror would be affected or influenced by emotions and his
connection to his nephew's case. Given the district court's broad discretion
regarding for-cause challenges, see Leonard v. State, 117 Nev. 53, 67, 17
P.3d 397, 406 (2001) (observing that trial court enjoys broad discretion in
ruling on for-cause challenges because those rulings involve factual
determinations), and its ability to observe Henshaw's demeanor during
the inquiry, see id. (noting that "Mlle trial court is better able to view a
prospective juror's demeanor than a subsequent reviewing court"), we
conclude that the district court ruling is supported by the record and there
was no abuse of discretion in removing Henshaw. 1 See NRS 16.080
(providing that "[a]fter the impaneling of the jury and before the verdict,
the court may discharge a juror upon a showing of. . any other inability
to perform the juror's duty"); NRS 175.071 (providing that before the
conclusion of the trial, and there being no alternate juror called or
available, a juror dies, or becomes disqualified or unable to perform the
juror's duty, the court may duly order the juror discharged").
Third, Haberstroh argues that misconduct occurred when one
or more jurors failed to acknowledge during jury selection that they did
not believe that a life-without-parole sentence meant that a defendant
1 We reject Haberstroh's contention that reversal is warranted
because the alternate juror who replaced Henshaw was unfavorably
disposed to him. He did not challenge the alternate juror for cause on any
basis and therefore cannot now complain that she was unqualified or
unsuitable to serve as a juror. See Moore v. State, 122 Nev. 27, 126 P3d
508 (2006) ("Failure to object during trial generally results in a waiver
thereby precluding appellate consideration of the issue.").
SUPREME COURT
OF
NEVADA
4
(0) 1947A Waco
would not be eligible for parole. As evidence of this misconduct, he
suggests that two notes sent out during deliberations that questioned the
meaning of a life-without-parole sentence contradicted the jurors'
representations in their questionnaires that they understood that they
must assume that a life-without-parole sentence meant the defendant
would not be released on parole. In response to the notes, the district
court directed the jurors to consult relevant instructions explaining the
sentencing options. Because Haberstroh concurred with the district
court's response and made no assertion of misconduct below, we review his
claim for plain error. See Saletta v. State, 127 Nev., Adv. Op. 34, 254 P.3d
111, 114 (2011); Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987
(1995). Merely requesting the district court to explain the meaning of a
life-without-parole sentence is not convincing evidence of misconduct and
absent some indication of an intentional misrepresentation during voir
dire, Haberstroh's allegation is nothing more than supposition. See
Maestas v. State, 128 Nev., Adv. Op. 12, 275 P.3d 74, 85 (2012) ("[W]here
it is claimed that a juror has answered falsely on voir dire about a matter
of potential bias or prejudice,' the critical question is whether the juror
intentionally concealed bias." (quoting Lopez v. State, 105 Nev. 68, 89, 769
P.2d 1276, 1290 (1989))). Accordingly, he has not shown error that is
unmistakable from a casual inspection of the record. Patterson v. State,
111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995) (defining "plain" error).
Fourth, Haberstroh argues that the voir dire process was
unfair because the district court rejected his request to alternate between
the prosecution and the defense with respect to who first questioned each
prospective juror on the ground that the prosecution questions the
prospective jurors first "under the law." While nothing in the statute or
SUPREME COURT
OF
NEVADA
5
(0) 1947A ato,
this court's jurisprudence requires that the prosecution be afforded the
first opportunity to query prospective jurors, see NRS 175.031, Haberstroh
articulates no specific prejudice from the district court's ruling and
therefore, we conclude that a new penalty hearing is not warranted on this
ground. See Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937-38
(1978) (acknowledging that scope and manner of voir dire falls within the
district court's sound discretion and that discretion is afforded
considerable latitude on review). We also reject Haberstroh's contention
that voir dire was unfair because the district court improperly limited his
inquiry into the prospective jurors' willingness to impose a life sentence,
as the record shows that he was able to query them about whether they
could consider a sentence of life with the possibility of parole. See Johnson
v. State, 122 Nev. 1344, 1354-55, 148 P.3d 767, 774 (2006) (noting that the
scope of voir dire rests with the district court's discretion and its decisions
are entitled to considerable deference).
Challenges to the fairness of the penalty hearing
Haberstroh contends that his penalty hearing was unfair
because the jury was deprived of the opportunity to consider an
appropriate sentence. In this, he makes several arguments that we have
previously rejected, including that the district court should have granted
his request to exclude witnesses from the courtroom during the testimony
of other witnesses, Witter v. State, 112 Nev. 908, 917, 921 P.2d 886, 892
(1996) (holding that the exclusionary rule does not apply to the penalty
phase of a capital trial), abrogated on other grounds by Nunnery v. State,
127 Nev., Adv. Op. 69, 263 P.3d 235 (2011); the district court erred by
denying his motion to bifurcate his penalty hearing, see Weber v. State,
121 Nev. 554, 584, 119 P.3d 107, 128 (2005) (holding that the district court
SUPREME COURT
OF
NEVADA
6
(0) 1947A 4A9Sy.
is not obligated to bifurcate the penalty hearing); and his constitutional
due process rights were violated by allowing the State to present the final
closing argument, see Blake v. State, 121 Nev. 779, 800, 121 P.3d 567, 580
(2005) (rejecting argument that due process concerns require allowing the
defense to argue last at the penalty hearing). Haberstroh's arguments
provide no compelling reason to abandon our prior decisions. See Miller v.
Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008) (explaining that
under stare decisis doctrine, this court will not overturn precedent absent
compelling reason).
Haberstroh next contends that he was unfairly prejudiced by
the prosecution's introduction of "other matter" evidence, see NRS
175.552(3), including his juvenile and adult criminal history along with
uncharged misconduct evidence including allegations that he sexually
assaulted three other women. Haberstroh's complaint concerning the
"other matter" evidence based on hearsay lacks merit as hearsay is
allowed in a capital penalty hearing as long as the evidence is reliable and
relevant, and its probative value is not substantially outweighed by the
danger of unfair prejudice. Summers v. State, 122 Nev. 1326, 1332 n.17,
148 P.3d 778, 783 n.17 (2006). He further argues that much of the "other
matter" evidence was highly suspect, impalpable, and stale. He refers to
his juvenile and adult criminal history that included offenses for which he
was not convicted or the charges were dismissed, specifically noting the
evidence that he sexually assaulted two women and evidence linking him
to a number o. from women that occurred approximately a month
after Kitowski's murder. Evidence of uncharged crimes is relevant and
" may be admitted at a capital penalty hearing as other matter evidence"
because a sentencing decision "should be based on the entirety of a
SUPREME COURT
OF
NEVADA
7
(0) 1907A e
defendant's character, record, and the circumstances of the offense, but it
may be excluded from a capital penalty hearing if it is impalpable or
highly suspect" Nunnery, 263 P.3d at 249 (internal quotation marks and
citations omitted). Although much of Haberstroh's criminal history
references offenses and incidents that occurred decades ago, before his
current lengthy incarceration for Kitowski's murder, it is no less relevant
to the issue of his character and record and presenting that evidence did
not render the proceedings unfair.
Jury instructions
Haberstroh challenges two jury instructions related to the
definition and scope of mitigating circumstances and the district court's
decision to strike his argument concerning the deliberative process and
failure to give a curative instruction.
Haberstroh first contends that the "moral culpability"
language in the jury instruction defining mitigating circumstances should
not have been included because it erroneously conveyed to the jury that
mitigating circumstances must relate to the offense and explain or justify
the offense. This court considered a similar instruction in Watson v. State
and explained that "the proper inquiry . . . is whether there is a
reasonable likelihood that the jury has applied the challenged instruction
in a way that prevents the consideration of constitutionally relevant
[mitigating] evidence." 130 Nev. Adv., Op. 76, 335 P.3d 157, 173 (2014)
(quoting Boyde v. California, 494 U.S. 370, 380 (1990)). "A reasonable
likelihood is more than a mere possibility that the jury misunderstood the
law, but a defendant need not establish that the jury was more likely than
not to have been impermissibly inhibited by the instruction." Id. (internal
quotation marks omitted).
SUPREME COURT
OF
NEVADA
8
(0) 1947A e
We conclude that there is not a reasonable likelihood that the
jury applied the mitigation instruction in a way that limited its
consideration of relevant mitigating evidence for three reasons. First,
although the first paragraph of the instruction used in this case uses the
" moral culpability" language addressed in Watson, the instruction allowed
the jury to consider as a mitigating circumstance "any desire to extend
mercy to the [d]efendant." Second, because all of the mitigating
circumstances found by the jurors related to Haberstroh's character or
background, the jurors clearly understood that they could consider
mitigating circumstances unrelated to the crime itself. Finally, nothing in
the prosecutor's arguments suggested to the jury that it could not consider
evidence of Haberstroh's character and record as mitigating evidence.
Haberstroh contends that the following jury instruction was
erroneous because it implied that the mitigating circumstances had to be
related to the crime rather than any reason for a sentence less than death.
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 reduce the degree of the
crime. Defendant submits the following
mitigating circumstances support a sentence less
than death.
He proposed an alternative instruction that replaced "Murder in the first
degree" with "A sentence of death." We conclude that the district court did
not abuse its discretion by giving the instruction. See Crawford v. State,
121 Nev. 744, 748, 121 P.3d 582, 585 (2005). The language tracks the
language found in NRS 200.035 (circumstances mitigating first-degree
murder), and does not imply that mitigation is limited to the
circumstances of the offense.
SUPREME COURT
OF
NEVADA
9
(0) I947A co9gO44
Haberstroh next argues that the district court erred by
striking his explanation of the weighing process during opening
statements and failing to offer a curative instruction because it was a
correct statement of the law under Evans v. State, 117 Nev. 609, 636, 28
P.3d 498, 517 (2001). Defense counsel informed the jurors that if any one
juror finds that the aggravators do not outweigh the mitigating
circumstances, they deliberate on the options of life with or without the
possibility of parole. At the prosecution's request, the district court struck
that portion of counsel's argument as an incorrect statement of law and
advised the jury that it would be instructed later in the proceedings. The
district court later acknowledged that defense counsel's opening statement
was correct but declined to give counsel's proposed curative instruction
and instead instructed the jury on the deliberative process in accordance
with Evans. While the district court erred by striking the challenged
comments, Haberstroh suffered no prejudice because the jury was
correctly instructed before deliberations began and jurors are presumed to
follow their instructions. See Leonard v. State, 117 Nev. 53, 66, 17 P.3d
397, 405 (2001). 2
Aggravating circumstances
Haberstroh argues that the two aggravating circumstances
found—he was under a sentence of imprisonment when he murdered
2 Haberstroh asserts that the prosecutor committed misconduct by
misrepresenting the law regarding the weighing process at the eligibility
phase of the jury's sentence determination. Haberstroh suffered no
prejudice because the jury was correctly instructed on the law. Therefore,
no relief is warranted on this claim.
SUPREME COURT
OF
NEVADA
10
(0) 1947A c4g4:7
Kitowski and he had a prior conviction for a felony involving the use or
threat of violence—are invalid.
Under sentence of imprisonment
Haberstroh argues that the under-sentence-of-imprisonment
aggravating circumstance is invalid because the State was precluded from
seeking it. In this, he contends that the trial court's decision in his prior
penalty hearing that the aggravating circumstance did not apply to
persons on parole was equivalent of an acquittal on the aggravating
circumstance and therefore double jeopardy precluded the State from
seeking it in the second penalty hearing. Because Haberstroh did not
challenge the aggravating circumstance on this ground below, we review
for plain error affecting his substantial rights. See Valdez v. State, 124
Nev. 1172, 1190, 196 P.3d 465, 477 (2008). We conclude that the State's
use of the under-sentence-of-imprisonment aggravating circumstance did
not violate double jeopardy principles where the trial court in the first
penalty hearing dismissed the aggravating circumstance based on a
misunderstanding of the law. See Poland v. Arizona, 476 U.S. 147, 149-51
(1986). Therefore, Haberstroh has not demonstrated plain error.
Haberstroh next argues that the under-sentence-of-
imprisonment aggravating circumstance is invalid because it violates ex
post facto principles as this court did not acknowledge that it applied to
persons on parole until years after Kitowski's murder. Because he did not
object to the aggravating circumstance on this ground below, his claim is
reviewed for plain error affecting his substantial rights. See Valdez, 124
Nev. at 1190, 196 P.3d at 477. We have recognized that the Supreme
Court has applied ex post facto principles "to the judicial branch through
the Due Process Clause, which precludes the judicial branch 'from
SUPREME COURT
OF
NEVADA
11
(0) 1947A e
achieving precisely the same result' through judicial construction as would
application of an ex post facto law." Stevens v. Warden, 114 Nev. 1217,
1221, 969 P.2d 945, 948 (1998) (quoting Bouie v. Columbia, 378 U.S. 347,
353-54 (1964)). "This 'judicial ex post facto' prohibition prevents judicially
wrought retroactive increases in levels of punishment in precisely the
same way that the Ex Post Facto Clause prevents such changes by
legislation." Id. Haberstroh points to Parker v. State, 109 Nev. 383, 393,
849 P.2d 1062, 1068 (1993), and Geary v. State, 110 Nev. 261, 266, 871
P.2d 927, 930 (1994), as the first cases where this court established that
the under-sentence-of-imprisonment aggravating circumstance included
persons on parole and suggests that because they were decided after the
murder in this case, applying them to him would be an ex post facto
violation. In concluding that NRS 200.033(1) encompasses probationers,
Parker_ relied on two cases—Grant v. State, 99 Nev. 149, 659 P.2d 878(1983), and Adams v. Warden, 97 Nev. 171, 626 P.2d 259 (1981)—both of
which predated Kitowski's murder (1986) and Haberstroh's first trial
(1987). In those cases, we concluded that a grant of probation is a
suspension of execution of a state prison sentence, not a suspension of the
sentence; therefore a person on probation, although not incarcerated, is
under a sentence of imprisonment. Grant, 99 Nev. at 150, 659 P.2d at
878-79; Adams, 97 Nev. at 172, 626 P.2d at 260. While Grant and Adams
do not concern NRS 200.033(1), they were instructive as to the meaning of
"under a sentence of imprisonment" at the time Haberstroh murdered
Kitowski Based on our reasoning in Grant and Adams and the use of
NRS 200.033(1) with respect to probationers in other capital cases tried
around the time of Kitowski's murder, see, e.g., Browning v. State, 124
Nev. 517, 539, 188 P.3d 60, 75 (2008); Bejarano v. State, 122 Nev. 1066,
SUPREME COURT
OF
NEVADA
12
(0) 194Th en
1070, 146 P.3d 265, 268 (2006); Nevins v. State, 101 Nev. 238, 243, 699
P.2d 1053, 1056 (1985), the meaning of "under sentence of imprisonment"
expressed in Parker was not "unexpected and indefensible by reference to
the law which had been expressed prior to the conduct in issue,' Stevens,
114 Nev. at 1221, 969 P.2d at 948 (quoting Bouie, 378 U.S. at 354), and
therefore applying the aggravating circumstance consistent with Parker
does not violate judicial ex post facto principles. Therefore, Haberstroh
has not demonstrated plain error. 3
Haberstroh next asserts that the under-sentence-of-
imprisonment aggravating circumstance fails to perform the narrowing
function required by the Eighth Amendment. He encourages this court to
overrule Parker and hold that this aggravating circumstance does not
apply to parolees and probationers. We decline to overrule Parker, see
Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008), and further
conclude that Haberstroh is not entitled to relief as he fails to adequately
explain why the aggravating circumstance fails to perform the
constitutional narrowing function where it applies to a discrete group of
defendants.
Haberstroh further contends that the prosecution established
the under-sentence-of-imprisonment aggravating circumstance through
substantial hearsay over his objection, leaving him unable to cross-
examine his accusers as to the allegation that he was on parole when
3 We reject Haberstroh's contention that the under-sentence-of-
imprisonment aggravating circumstance is unconstitutionally vague on
the ground that there was no authority from this court holding that it
could apply to a person on parole prior to the decision in Parker.
SUPREME COURT
OF
NEVADA
13
(0) I.947A
Kitowski was murdered. He suggests that the Sixth Amendment right to
confrontation should apply to capital penalty trials, "especially when the
evidence at issue applies to an aggravating circumstance that is necessary
to establish eligibility for the death penalty." He urges this court to
reconsider its contrary decision in Summers v. State, 122 Nev. 1326, 1327,
148 P.3d 778, 779 (2006), "insofar as it concerns aggravators and the death
penalty." We have affirmed Summers' holding, including challenges to the
admission of hearsay evidence related to the eligibility prong of Nevada's
death penalty scheme. See Thomas v. State, 122 Nev. 1361, 1367, 148
P.3d 727, 732 (2006); Johnson v. State, 122 Nev. 1344, 1353, 148 P.3d 767,
773 (2006). We are not persuaded that it is appropriate to alter that
holding. See Miller, 124 Nev. at 597, 188 P.3d at 1124.
Haberstroh further argues that reversal of his death sentence
is warranted because the prosecution introduced false and misleading
evidence to support the under-sentence-of-imprisonment aggravating
circumstance. Because he did not object to the challenged evidence, his
claim is reviewed for plain error. Valdez, 124 Nev. at 1190, 196 P.2d at
477. Haberstroh points to a federal agent's explanation of what it means
to expire a sentence. Because the agent's explanation did not take into
account sentence credits that may accelerate the expiration of a sentence,
he argues that the testimony was misleading and prejudicial. We
conclude that he has not shown plain error as other evidence showed that
he was on parole at the time of Kitowski's murder.
Finally, Haberstroh argues that insufficient evidence supports
the under-sentence-of-imprisonment aggravating circumstance. In this,
he contends that the State should have introduced official documentation
establishing that he was on parole at the time of Kitowski's murder or
SUPREME COURT
OF
NEVADA
14
10) 1947A are
testimony from a federal parole officer or other official charged with
determining when his federal sentence expired, instead of presenting
hearsay evidence and testimony from witnesses who had no personal
knowledge of his parole status. While the type of evidence Haberstroh
suggests was not presented, there is no authority compelling to State to
prove the aggravating circumstance through any particular means.
Further, the State presented sufficient evidence from which the jury could
infer that he was under a sentence of imprisonment at the time of the
murder. See Origel-Candido ix State, 114 Nev. 378, 381, 956 P.2d 1378,
1380 (1998); Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The jury learned that Haberstroh had two 1974 convictions
pursuant to the National Motor Vehicle Theft Act (NMVTA) (also known
as the Dyer Act) for which he received two concurrent six-year prison
terms. He was paroled from those offenses on February 16, 1978. While
on parole, he absconded but was eventually apprehended and incarcerated
at the Leavenworth county jail in Kansas. On July 18, 1978, he attempted
to escape from the Leavenworth County jail. On August 3, 1978, he
pleaded guilty to escape and was sentenced to five years in prison to run
consecutively to the two concurrent six-year terms he received on the
NMVTA convictions. His sentences related to the NMVTA convictions
expired on May 2, 1980. Haberstroh then started serving the sentence for
the escape conviction. He was paroled on the escape conviction on
December 2, 1983, had his last contact with his parole officer in January of
1985, and thereafter absconded from parole. A bench warrant was issued
on August 28, 1985. Testimony was introduced explaining that a sentence
does not continue to run when a person is in absconder status and that
from the time the bench warrant issued until the time of Kitowski's
SUPREME COURT
OF
NEVADA 15
(0) 1947A
murder, Haberstroh was still under the sentence for the Leavenworth
escape. The jury also learned that Haberstroh admitted at his previous
trial that he was a parole violator when he "came out here," apparently
referring to Las Vegas, which his presentence investigation report
indicates occurred in February of 1985.
Prior-violent felony aggravating circumstance
The prior-violent-felony aggravating circumstance is based on
Haberstroh's felony conviction for escape from the Leavenworth County
jail During his escape, he threatened jail officer Michael Weber with a
shank. The State supported this aggravating circumstance in part by
introducing Weber's testimony from Haberstroh's first trial where he
described the circumstances of Haberstroh's escape. Haberstroh pleaded
guilty to escape. He complains that this aggravating circumstance is
invalid because the State failed to present sufficient evidence to show that
the felony escape conviction involved the use or threat of violence for the
purpose of NRS 200.033(2)(b) in accordance with Redeker v. Eighth
Judicial Dist. Court, 122 Nev. 164, 127 P.3d 520 (2006).
Redeker addressed what evidence may be relied on to satisfy
NRS 200.033(2)(b). 122 Nev. at 172, 127 P.3d at 526. In that case, the
State alleged a prior-violent-felony-conviction aggravating circumstance
based on the defendant's second-degree arson conviction, which was based
on a guilty plea. Id. at 168, 127 P.3d at 523. We concluded that where, as
with second-degree arson, it is not readily apparent from the statutory
elements that the offense involves the use or threat of violence, the
factfinder may look beyond the statutory elements to determine whether
the prior offense involved the use or threat of violence but that NRS
200.033(2)(b) "does not indicate that no limits should be placed on the sort
SUPREME COURT
OF
NEVADA
16
(0) 1947A e
of evidence that can be considered in making that determination." Id. at
172, 127 P.3d at 526. In those circumstances, the fact-finder may consider
the charging documents, jury instructions, written plea agreement,
transcript of plea colloquy, and "any explicit factual finding by the district
court judge to which [the defendant] assented" underlying the prior
conviction to determine whether the offense involved the use or threat of
violence for purposes of NRS 200.033(2)(b). Id. at 172-73, 127 P.3d at 526;
see Hidalgo v. Eighth Judicial Dist. Court, 124 Nev. 330, 335-36, 184 P.3d
369, 374 (2008).
Officer Weber's testimony revealed that Haberstroh
threatened him with a shank during the escape but that testimony is not
the type of evidence that may be used to establish this aggravating
circumstance under Redeker because it did not involve any explicit factual
finding by the trial judge to which Haberstroh assented. Although the
documentary evidence introduced—copies of his petition to plead guilty,
the indictment, and the judgment of conviction—may be considered under
Redeker, none of those documents indicate that Haberstroh's escape
involved the use or threat of violence. Because insufficient evidence
supports the aggravating circumstance, it is invalid. 4
Because the prior-violent felony aggravating circumstance is
invalid, we must consider whether Haberstroh's death sentence may be
upheld. See Clemons v. Mississippi, 494 U.S. 738, 741 (1990) (holding that
4 Since we conclude that the prior-violent-felony aggravating
circumstance was not validly established, but that the error does not merit
reversal, we do not consider Haberstroh's remaining challenges to the
validity of this aggravator.
SUPREME COURT
OF
NEVADA
17
(0) I 947A ceen
"the Federal Constitution does not prevent a state appellate court from
upholding a death sentence that is based in part on an invalid or
improperly defined aggravating circumstance either by reweighing of the
aggravating and mitigating evidence or by harmless-error review");
Pertgen v. State, 110 Nev. 554, 563, 875 P.2d 361, 366-67 (1994)
("Reweighing involves disregarding the invalid aggravating circumstances
and reweighing the remaining permissible aggravating and
mitigating circumstances.").
In mitigation, the jury heard evidence concerning
Haberstroh's family history and background. His parents and older
siblings were deceased. The family was plagued by alcoholism; his mother
drank alcohol while pregnant with him. Haberstroh's sister, Judith, was
tasked with caring for her younger siblings, including Haberstroh. Judith
resented that duty and physically abused her charges, with Haberstroh
receiving the brunt of the abuse. On at least one occasion, Judith placed
him in a dark closet for hours. An aunt discovered him in the closet; it
appeared that he had been hung by his neck and was in and out of
consciousness. His father struck him with a belt with sufficient force to
leave welts. When Haberstroh was a teenager, his father engaged him in
fist fights as a disciplinary tool. His mother imposed punishment by
requiring him to kneel on the floor on top of dry grains of rice. Haberstroh
dropped out of school in the sixth grade. Psychological evaluations
completed while Haberstroh was in elementary school revealed that he
had an IQ of 87, had deep feelings of inadequacy, suffered from the effects
of his mother's alcoholism and emotional instability, suffered from
depression, and had issues with females in his life, including his mother.
He acted out in class, disturbed other children, and acted immaturely for
SUPREME COURT
OF
NEVADA
18
(0) 1947A e
his age. Haberstroh was prescribed tranquilizers, which he took four
times a day. When he reached 16 years old, Haberstroh began huffing
paint on a regular basis. He married at age 17 but divorced within one
year and joined the Navy. His abuse of alcohol and other substances
continued, and he had disciplinary problems during his brief time in the
Navy. Alter his discharge from the service, Haberstroh's alcohol abuse
continued, and he was unable to maintain steady employment and
engaged in various criminal activities. No family members have visited
Haberstroh during his incarceration.
The jury also heard evidence that Haberstroh had not engaged
in any assaultive misconduct in the past 27 years of incarceration and no
disciplinary infractions in the past 10 years of incarceration. Previous
confinements in the federal prison system noted two fistfights. He
obtained his GED in 1981, which decreased the likelihood that he would
be involved in serious violence in prison. His age, 58, also suggested a
lower risk of violence in prison. Haberstroh suffers from a number of
health issues, including fatigue, shortness of breath, low heart rate,
diabetic neuropathy, peripheral artery disease, cardiovascular disease,
and high blood pressure. His diabetes places him at risk for diabetic
retinopathy, which can lead to blindness and kidney damage. He is also in
need of dental care and routine health screenings. A neuropsychologist
explained that Haberstroh suffered from mental impairments that are
consistent with fetal alcohol syndrome and that had been diagnosed with
attention deficit hyperactivity disorder (ADHD). A psychologist related
that Haberstroh suffered from cognitive deficiencies and that he has
adjusted well to incarceration due the highly structured prison
environment. Finally, the jury learned about how parole operates and the
SUPREME COURT
OF
NEVADA
19
(0) 1947A e
factors the Parole Board considers in determining whether parole should
be granted, as well as the conditions of confinement at the Ely correctional
facility.
As other matter evidence, see NRS 175.552(3), the State
introduced evidence of Haberstroh's extensive juvenile and adult record,
including arrests/convictions for multiple instances of larceny of a motor
vehicle, possession of burglary tools, theft of money, forgery, absconding
from juvenile probation, eluding a police officer, two convictions under the
NMVTA, escapes from incarceration, numerous parole violations, strong-
arm robbery, unauthorized use of a vehicle, and trespassing. The jury also
heard evidence that Haberstroh sexually assaulted a woman after
abducting her at knifepoint from a grocery store parking lot. Another
woman testified about an incident on May 1, 1986, where a man abducted
her from a grocery store parking lot, forced her to drive her car to a
secluded area, and sexually assaulted her. The State introduced evidence
linking Haberstroh to thefts involving several women in August 1986—
approximately one month after Kitowski's murder; he was never charged
with those offenses. While the prior-violent-felony aggravating
circumstance is invalid, the jury could nevertheless consider evidence that
Haberstroh threatened a guard with a shank to effectuate his escape from
the Leavenworth jail in selecting the appropriate sentence after weighing
the aggravating and mitigating circumstances. See NRS 175.552(3)
("During 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 the sentence,
whether or not the evidence is ordinarily admissible."); Browning v. State,
124 Nev. 517, 526, 188 P.3d 60, 67 (2008) (observing that the focus of a
SUPREME COURT
OF
NEVADA
20
(0) I947A a4S9(>
capital penalty hearing is on a defendant's "character, record, and the
circumstances of the offense"). Kitowski's mother, stepfather, and two
brothers testified about the devastating impact of Kitowski's murder and
described her as a caring, loving, helpful, and phenomenal sister.
Kitowski's 28-year-old son, an infant when she was murdered, is unable to
speak about his mother's death.
Considering all of the evidence presented, we conclude that
the jury would have found Haberstroh death eligible absent the prior-
violent-felony aggravating circumstance. The remaining under-sentence-
of-imprisonment aggravating circumstance is compelling as it indicates
that Haberstroh had not been amenable to rehabilitation or restraint.
Further, in light of his extensive juvenile and adult criminal history,
including the sexual assault of two women under circumstances similar to
Kitowski's murder, we conclude that the jury would have imposed death
absent the prior-violent-felony aggravating circumstance.
Mandatory review
NRS 177.055(2) requires that this court review every death
sentence and consider whether (1) sufficient evidence supports the
aggravating circumstances found, (2) the verdict was rendered under the
influence of passion, prejudice or any other arbitrary factor, and (3) the
death sentence is excessive. First, as explained above, the prior-violent-
felony aggravating circumstance is invalid because the State failed to
prove beyond a reasonable doubt that Haberstroh's conviction for escape
involved the use or threat of violence under NRS 200.033(2)(b), but the
under-sentence-of-imprisonment aggravating circumstance was proved
through evidence presented during the penalty hearing. Second, nothing
in the record indicates that the jury acted under any improper influence in
SUPREME COURT
OF
NEVADA
21
(0) 1947A elm
imposing death. Although the jurors did not find all of the mitigating
circumstances Haberstroh proffered, at least one juror found that the
murder was mitigated by his family history of alcoholism, the physical
abuse he suffered from his parents and older siblings, his mental
deficiencies, and his current age. These findings evidence a reflective jury.
Third, the death sentence is not excessive. Although Haberstroh
presented credible mitigation evidence, the nature and circumstances of
his crimes, his lengthy criminal record, and evidence of his other sexual
assaults of women are compelling factors that favor a death sentence.
Under the circumstances, we conclude that based on the crime and the
defendant, the death sentence is not excessive. See generally Dennis v.
State, 116 Nev. 1075, 1084-87, 13 P.3d 434, 440-42 (2000) (discussing and
applying excessiveness analysis) . 5
5 We reject Haberstroh's constitutional challenges to his death
sentence based on a 28-year delay between the time the offenses occurred
in 1986 and the penalty hearing in 2013, see Jones u. State, 539 S.E.2d
154, 158-59 (Ga. 2000) (finding meritless a "waiting for execution is
intolerably cruel' argument"), the lack of a constitutionally adequate
clemency process, see Nunnery v. State, 127 Nev., Adv. Op. 69, 263 P.3d
235, 257 (2011), and the failure of the capital penalty scheme to genuinely
narrow the defendants eligible for the death penalty, see Leonard v. State,
117 Nev. 53, 82-83, 17 P.3d 397, 415-16 (2001). We further reject
Haberstroh's claim of cumulative error, as the cumulative effect of any
errors established do not require reversal of the death sentence. See
Valdez v. State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008) (noting
factors to consider in cumulative-error analysis).
SUPREME COURT
OF 22
NEVADA
(0) I947A ec)
Because review of this appeal reveals no errors that warrant
reversal of Haberstroh's death sentence, we
ORDER the judgment of the district court AFFIRMED. 6
tea-4-etn, ,C.J.
Hardesty Parraguirrer j.
(
Saitta
(7 C/1a J.
Gibbons Pickering
cc: Hon. Elissa F. Cadish, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
6 The Honorable Michael Douglas, Justice, did not participate in the
decision in this matter.
SUPREME COURT
OF
NEVADA
23
(0) I947A mille4:9,