Adams (Larry) v. State (Death Penalty-Pc)

IN THE SUPREME COURT OF THE STATE OF NEVADA
LARRY EDWARD ADAMS, No 60606
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. JAN 2 2 2016
CL
BY
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is an appeal from an order denying a postconviction
petition for a writ of habeas corpus in a death penalty case. Eighth
Judicial District Court, Clark County; Valorie J. Vega, Judge.
Appellant Larry Edward Adams shot to death his wife,
Pamela Adams, and his three-year-old daughter, Laura Adams, in the
family home. A jury convicted him of two counts of first-degree murder
and burglary and sentenced him to death for each murder. This court
affirmed the convictions and sentence. Adams v. State, Docket No. 17966
(Order Dismissing Appeal, April 28, 1988).
This appeal involves the denial of Adams' third postconviction
petition for a writ of habeas corpus. Because Adams filed the petition
approximately 20 years after remittitur issued in his direct appeal and he
had previously filed two other postconviction petitions, the petition was
untimely under NRS 34.726(1) and successive pursuant to NRS 34.810(2).
The petition therefore was procedurally barred absent a demonstration of
good cause and prejudice. See NRS 34.726(1); NRS 34.810(3). When a
petitioner cannot demonstrate good cause, the district court may
nevertheless excuse a procedural bar if the petitioner demonstrates that
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failing to consider the petition would result in a fundamental miscarriage
of justice. Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001).
A fundamental miscarriage of justice requires "a colorable showing" that
the petitioner is "actually innocent of the crime or is ineligible for the
death penalty." Id. Where the claim of a fundamental miscarriage is
based on ineligibility for the death penalty, the petitioner "must show by
clear and convincing evidence that, but for a constitutional error, no
reasonable juror would have found him death eligible."' Id.
Adams challenges the district court's decision on two grounds:
(1) the State's withholding of impeachment evidence concerning a key
witness violated Brady v. Maryland, 373 U.S. 83 (1963) and establishes
good cause and prejudice to excuse his procedural defaults and (2) he is
actually innocent of first-degree murder, burglary, and the death penalty.
Brady claim
Adams argues that the State withheld impeachment evidence
concerning a key witness, Joe Left Hand Bull, in violation of Brady and
therefore he established good cause for the delay in filing his claim that
trial counsel were ineffective for failing to investigate his case. See State
v. Bennett, 119 Nev. 589, 599, 81 P.3d 1, 8 (2003) (providing that to raise a
Brady claim in an untimely or successive petition, "the petitioner has the
burden of pleading and proving specific facts that demonstrate good cause
and prejudice to overcome the procedural bars"). In particular, he asserts
that the State withheld Bull's true identity and criminal history. We
'The State also pleaded laches pursuant to NRS 34.800(1), which
permits the dismissal of a petition if delay in the filing of the petition
prejudices the State.
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conclude that Adams has provided sufficient support to warrant an
evidentiary hearing. See Nika v. State, 124 Nev. 1272, 1300-01, 198 P.3d
839, 858 (2008) (observing that postconviction petitioner is entitled to an
evidentiary hearing on his claims of good cause only if he "asserts specific
factual allegations that are not belied or repelled by the record and that, if
true, would entitle him to relief'). Therefore, we remand this matter to
the district court to conduct an evidentiary hearing on Adams' claim that
the State's withholding of impeachment evidence concerning Bull
constituted good cause to overcome the procedural default rules and
whether he raised this claim within a reasonable time after it became
available. See Bennett, 119 Nev. at 599, 81 P.3d at 8 ("Good cause and
prejudice parallel the second and third Brady components; in other words,
proving that the State withheld the evidence generally establishes cause,
and proving that the withheld evidence was material establishes
prejudice").
Actual innocence
Adams argues that he is actually innocent of first-degree
murder because the premeditated murder instruction given at trial was
erroneous and constitutionally vague and that his burglary conviction
must be vacated in light our recent decision in White v. State, 130 Nev.
Adv. Op. 56, 330 P.3d 482 (2014). He further argues that he is actually
innocent of the death penalty because all of the aggravating circumstances
found are invalid.
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First-degree murder
Adams argues that he is actually innocent of first-degree
murder because the premeditation instruction given, an instruction
substantially similar to that commonly referred to as the Kazalyn 2
instruction, was erroneous and unconstitutionally vague as it "failed to
meaningfully define the statutory elements of first-degree murder in a
way that distinguishe[d] between first- and second-degree murder." He
contends that the trial court's use of the Kazalyn instruction was wrong
because this court's decision in Hem v. State was the rule at the time of
his trial. 97 Nev. 529, 532, 635 P.2d 278, 280 (1981). In this, he relies on
this court's observation in Hem n that lift is clear from the statutes that all
three elements, willfulness, deliberation, and premeditation, must be
proven beyond a reasonable doubt before an accused can be convicted of
first degree murder." Id.
The flaw in Adams' argument is that even assuming the
Kazalyn instruction failed to meaningfully define the elements for first-
degree murder, 3 that deficiency would not establish that he is actually
innocent of first-degree murder, which requires a showing that he is
2 Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992).
3 We also do not agree with the underlying premise of his argument.
See Nika, 124 Nev. at 1280-87, 198 P.3d at 845-48 (discussing history of
Nevada law on the phrase "willful, deliberate, and premeditated,"
including Hem, and explaining that prior to Byford v. State, 116 Nev. 215,
994 P.2d 700 (2000), this court had not required separate definitions of the
terms and had instead viewed them as together conveying a meaning that
was sufficiently described by the definition of "premeditation" eventually
approved in Kazalyn and Powell v. State, 108 Nev. 700, 838 P.2d 921
(1992)).
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factually innocent. See Mitchell v. State, 122 Nev. 1269, 1273-74, 149 P.3d
33, 36 (2006) (observing that "[a]ctual innocence means factual innocence,
not mere legal insufficiency" (internal quotation marks omitted)). The
evidence at trial showed that Pam was shot in the bedroom and then fled
to the living room where she died. The evidence suggested that Laura
either witnessed Pam's shooting or happened upon her body and Adams
shot her in the head to eliminate her as a witness. That evidence
overwhelmingly proves that Adams acted willfully and with premeditation
and deliberation when he killed Pam and Laura. See NRS 200.030(1)(a).
Because Adams failed to demonstrate that any error in the premeditation
instruction rendered him factually innocent of first-degree murder, the
district court did not err by denying his claim that he is actually innocent
of first-degree murder.
Burglary
Adams contends that his burglary conviction must be vacated
in light of our decision in White in which we held that "a person with an
absolute right to enter a structure cannot commit burglary of that
structure." 330 P.3d at 485-86. We have observed that a gateway actual-
innocence claim contemplates the discovery of new evidence showing that
the petitioner is factually innocent of the crime. Brown v. McDaniel, 130
Nev., Adv. Op. 60, 331 P.3d 867, 875 (2014); see Calderon v. Thompson,
523 U.S. 538, 559 (1998); Schlup v. Delo, 513 U.S. 298, 327 (1995). Here,
Adams has not presented new evidence that he is actually innocent of
burglary; rather, his claim is based on the sufficiency of the evidence
presented at trial. See Brown, 331 P.3d at 875 (rejecting actual-innocence
claim that "relie[d] on [defendant's] legal claims that there was
insufficient evidence of first-degree murder presented at trial and that
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trial counsel provided ineffective assistance at trial"); see also Thompson,
523 U.S. at 559 ("To be credible,' a claim of actual innocence must be
based on reliable evidence not presented at trial." (quoting Schlup, 513
U.S. at 324)). Because Adams' contention does not satisfy the narrow
actual-innocence exception to the procedural bars, no relief is warranted
on this claim.
Death penalty
Adams argues that he is actually innocent of the death
penalty because all of the aggravating circumstances found are invalid.
The jury found three circumstances aggravated Pamela's murder: (1) the
murderer knowingly created a great risk of death to more than one person,
(2) the murder was committed during the commission of a robbery, and (3)
the murder was committed during the commission of a burglary. The jury
found the same three aggravating circumstances for Laura's murder plus
an additional aggravating circumstance: the murder was committed to
prevent or avoid a lawful arrest. Although the Supreme Court has opined
that the actual innocence exception requires a petitioner to present new
evidence demonstrating his innocence, see House v. Bell, 547 U.S. 518,
536-37 (2006); Schlup, 513 U.S. at 316, and the actual innocence
exception is grounded in factual rather than legal innocence, see Bousley v.
United States, 523 U.S. 614, 623-24 (1998) (citing Sawyer v. Whitley, 505
U.S. 333, 339 (1992)); Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920,
922 (1996), this court has allowed a broader approach when considering a
gateway claim that the petitioner is actually innocent of the death penalty
because aggravating circumstances are invalid, effectively extending the
actual innocence gateway in that context to include legal innocence, see,
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e.g., Bennett, 119 Nev. at 597-98, 81 P.3d at 7; Leslie v. Warden, 118 Nev.
773, 779-80, 59 P.3d 440, 445 (2002).
Preventing-a-lawful-arrest aggravating circumstance
Adams challenges the preventing-a-lawful-arrest aggravating
circumstance on two grounds, both of which lack merit. First, he argues
that insufficient evidence supports the aggravating circumstance because
the evidence does not prove that he killed Laura with the intent to prevent
or avoid a lawful arrest. On direct appeal, this court concluded that
Fitzgerald's testimony that Adams shot Laura because she woke up,
coupled with medical evidence suggesting that Laura was awake when
Adams shot her at close range was sufficient to satisfy the aggravating
circumstance. Adams v. State, Docket No. 17966 (Order Dismissing
Appeal, April 28, 1988) at 5. This court's ruling constitutes the law of the
case, Hall v. State, 91 Nev. 314, 316, 535 P.2d 797, 799 (1975), and Adams
provides no compelling reason to reconsider that decision. See Hsu v.
County of Clark, 123 Nev. 625, 629-30, 173 P.3d 724, 728-29 (2007);
Pellegrini v. State, 117 Nev. 860, 884-85, 34 P.3d 519, 535-36 (2001).
Second, he contends that the aggravating circumstance must be struck
because it is unconstitutionally vague and overbroad as applied to him. In
this, he argues that the aggravating circumstance should be based on
evidence that the killing was accomplished with the intent to avoid or
prevent an imminent arrest. We have consistently refused to interpret
NRS 200.033(5) to require an imminent arrest. See, e.g., Blake v. State,
121 Nev. 779, 793-94, 121 P.3d 567, 576-77 (2005); Evans v. State, 112
Nev. 1172, 1196, 926 P.2d 265, 280 (1996); Cavanaugh v. State, 102 Nev.
478, 486, 729 P.2d 481, 486 (1986).
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Great-risk-of-death aggravating circumstance
Adams argues that the great-risk-of-death aggravating
circumstance must be struck for four reasons. First, he asserts that
insufficient evidence was introduced to support the aggravating
circumstance because the State failed to prove that he knew that other
children were asleep in the house and that because the shootings occurred
serially, only one person at a time was endangered. On direct appeal, we
concluded that the proximity of Pam and Laura to each other when they
were shot and the presence of three other children sleeping in the
adjoining bedrooms, was sufficient to prove the aggravating circumstance.
Adams, Docket No. 17966 (Order Dismissing Appeal, April 28, 1988) at 5.
Our ruling constitutes the law of the case, Hall, 91 Nev. at 316, 535 P.2d
at 799, and Adams articulates no compelling reason to revisit that
decision. See Hsu, 123 Nev. at 629-30, 173 P.3d at 728-29. Second, Adams
argues that the aggravating circumstance was intended to apply only to
situations such as a bombing, shooting into a crowd, or driving a vehicle
onto a crowded sidewalk. We have upheld this aggravating circumstance
under substantially similar facts to those here. E.g., Flanagan v. State,
112 Nev. 1409, 1420-21, 930 P.2d 691, 698-99 (1996); Evans, 112 Nev. at
1195-96, 926 P.2d at 280; Hogan v. State, 103 Nev. 21, 23-24, 732 P.2d
422, 424 (1987). Third, Adams argues that our decisions upholding the
aggravating circumstance where there are multiple murders or cases
involving a second victim shot while standing near the murder victim are
inconsistent. We disagree. He points to this court's decisions in Leslie v.
State, 114 Nev. 8, 952 P.2d 966 (1998) and Jimenez v. State, 105 Nev. 337,
775 P.2d 694 (1989), but those cases are factually distinguishable from
cases where the court has upheld the aggravating circumstance, such as
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Lisle v. State, 113 Nev. 540, 555-56, 937 P.2d 473, 482-83 (1997);
Flanagan, 112 Nev. at 1420-21, 930 P.2d at 698-99; Evans, 112 Nev. at
1195, 926 P.2d at 280; and Hogan, 103 Nev. at 23-24, 732 P.2d at 424.
Fourth, Adams complains that the aggravating circumstance is
unconstitutional because it does not rationally narrow the class of death
eligible defendants. We have repeatedly rejected that argument and do so
here. E.g., Blake, 121 Nev. at 793-94, 121 P.3d at 576-77; Evans, 112 Nev.
at 1196, 926 P.2d at 280; Cavanaugh, 102 Nev. at 486, 729 P.2d at 486.
Felony aggravating circumstances
Adams argues that the felony aggravating circumstances
based on burglary must be struck because he could not burglarize his own
home, as he had a• possessory interest in the home and that the felony
aggravating circumstance based on robbery must be •struck because it was
based upon the theft of property (money and drugs) belonging to him. 4
Even accepting Adams' contentions, two aggravating circumstances
remain for Laura's murder—Adams knowingly created a great risk of
death to more than one person and the murder was committed to prevent
or• avoid a lawful arrest—and one remains for Pam's murder—Adams
4Adams argues that the felony aggravating circumstances based on
burglary and robbery are also invalid under McConnell v. State, 120 Nev.
1043, 1069, 102 P.3d 606, 624 (2004), because the State relied on those
felonies to prove first-degree murder. However, the record shows that the
State did not pursue a first-degree-murder theory based on felony murder;
therefore, McConnell does not invalidate those aggravating circumstances.
We reject Adams' suggestion that the State's closing argument showed
that the State relied on a felony-murder theory, where the information
does not include felony murder as a theory of first-degree murder and he
conceded in his post-conviction petition that the State did not seek an
instruction on felony murder.
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knowingly created a great risk of death to more than one person. Because
valid aggravating circumstances remain, he is not actually innocent of the
death penalty. See Lisle v. State, 131 Nev., Adv. Op 39, 351 P.3d 725
(2015) (observing that only aggravating circumstances are relevant to a
gateway claim that the defendant is actually innocent of the death
penalty). Therefore, the district court did not err by rejecting this claim. 5
Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceed consistent with this order.
, C.J.
Parraguirre
h-LA, sg-t-t\
Saitta
V We J.
Gibbons Pickering 1
5To the extent Adams argues that his Brady claim, the
premeditation instruction, the unreliability of reweighing, and the popular
election of the Nevada judiciary are relevant to determining prejudice as a
result of any invalid aggravating circumstance, his contention lacks merit
because prejudice plays no role in resolving his actual innocence claim.
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cc: Hon. Valorie J. Vega, District Judge
Federal Public Defender/Las Vegas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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