EDWARD LEE BEETS, Appellant, v. THE STATE OF NEVADA, Respondent
Beets v. State
EDWARD LEE BEETS, Appellant, v. THE STATE OF NEVADA, Respondent.
EDWARD LEE BEETS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 20694
December 20, 1991
821 P.2d 1044
[Rehearing denied March 3, 1992]
Morgan D. Harris, Public Defender and Stephen J. Dahl, Deputy Public Defender, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney and Daniel M. Seaton, Deputy District Attorney, Clark County, for Respondent.
OPINION
By the Court,
Mowbray, C. J.:
Appellant Edward Beets was Vanita Hames' boyfriend for approximately four months. Sometime after Christmas 1988, Vanita broke off her relationship with appellant. Vanita lived in North Las Vegas with her mother, Oretha Hames, aged 71, her daughter, Nicole, aged 7, and her son, Christian, aged IV2.
At approximately 3:00 or 4:00 a.m. on March 10, 1989, Vanita awoke to find appellant standing over her. Vanita asked appellant what he was doing there and, when he did not reply, she ran out of her room to the kitchen to use the telephone. The telephone did not work as the telephone lines leading into the home had been cut.
Vanita then saw appellant walk toward her, enter her bedroom, and re-emerge with a pillowcase which had been in the linen closet. Appellant withdrew a hammer from the pillowcase, which Vanita recognized as one she kept in a kitchen drawer with other tools. Appellant chased Vanita through the living room, caught her and hit her on her back two or three times with the hammer. Vanita heard her mother, Oretha, yell, "What's going on in there." Oretha then opened her bedroom door, saw appellant, and told him to stop and get out. When Oretha walked toward appellant, he hit her with the hammer once on the top part of her body and she fell.
Vanita crawled around the furniture in an attempt to get away from appellant, but he caught up with her in the hallway and dragged her into the bathroom. Vanita was crying and screaming and appellant told her to be quiet before she woke up the children. Vanita could hear her mother moaning and having difficulty breathing. Inside the bathroom, appellant again hit Vanita with the hammer, including a blow to the back and a blow which broke her arm. Appellant then tied Vanita's hands and feet with a torn sheet and then left, closing the door. Vanita was unable to get loose from the bindings.
About ten minutes later, appellant returned to the bathroom with a sofa cushion which he placed under Vanita's broken arm. Appellant then untied her, opened his fly, and took off her underpants. Appellant knelt between Vanita's legs and waved the hammer around as if he was going to hit her between her legs. He then turned the end of the hammer around and stuck the handle up her vagina.
Appellant left the bathroom with the door open and returned about a minute later with a kitchen knife. Appellant told Vanita he was going to kill her and then himself. Appellant knelt in front of her and, with both hands on the knife, stabbed her near her left breast. Appellant threw the knife down, turned off the bathroom light, and left, closing the door.
About ten minutes later, Vanita heard appellant walk toward the children's room. Vanita felt around for the knife, left the bathroom, and lunged at appellant with the knife. Appellant knocked the knife out of her hand and hit her across the face with his fist. He again dragged Vanita to the bathroom, pushed her down and, with the hammer, hit her on the knees and on the side of her head. Appellant closed the bathroom door and left. After a few minutes, Vanita heard her daughter crying and heard her say, "No, no."
Vanita got up and went to her daughter's room and found Nicole lying on the bed with her ankles tied. Vanita went into the kitchen to get a knife to cut the bindings. Vanita gave the knife to Nicole, who cut the bindings, and told Nicole to go to a neighbor's house for help. Vanita then went into the living room where she found her mother lying face down on the floor. She turned her over and knew she was dead.
Nicole testified regarding appellant's acts in her bedroom. Appellant entered Nicole's bedroom with no clothes on. He climbed into bed with Nicole and removed her underwear. Appellant then laid on top of Nicole and stuck his finger and penis in her vagina. Appellant left the room and returned a few seconds later and tied her arms and legs. Appellant then left again.
As a result of her injuries, Vanita still could not lift her wrist at trial on August 1, 1989, due to nerve damage. Vanita testified she did not know if she would be able to use her wrist again.
Appellant was charged with the following: burglary; first degree murder with use of a deadly weapon, victim 65 years of age or older; attempted murder with use of a deadly weapon; mayhem with use of a deadly weapon; first degree kidnaping with use of a deadly weapon; sexual assault with use of a deadly weapon; and two counts of sexual assault with a minor.
At the close of the State's case at trial, appellant moved to dismiss the kidnaping and mayhem charges. The district court denied the motion as to both charges. The jury found appellant guilty on all counts. At the penalty hearing, the State introduced two judgments of conviction, one for robbery in April 1980, and one for burglary in April, 1985. The defense called witnesses who testified that appellant suffered several serious head wounds as a child and testified regarding appellant's good character.
The jury was deadlocked and unable to reach a verdict after the penalty phase. In an order filed August 15, 1989, we ordered a three-judge panel to conduct a penalty hearing pursuant to NRS 175.556. At the second penalty hearing, the judges indicated that they had reviewed the transcripts of the previous proceedings, both the guilt and penalty phases.
The three-judge panel found no mitigating circumstances and the following four aggravating circumstances: (1) the murder was committed by the defendant while under a sentence of imprisonment, to wit: Burglary; (2) the murder was committed by the defendant who was previously convicted of a felony involving the use or threat of violence to another, to wit: Robbery; (3) the murder was committed while the defendant was engaged in the commission of sexual assault; and (4) the murder was committed while the defendant was engaged in the commission of burglary. On November 7, 1989, appellant was sentenced to death.
On appeal, appellant contends: (1) insufficient evidence of premeditation was presented to support the conviction of first degree murder; (2) the district court erred in denying his motion to dismiss the kidnaping charge; (3) insufficient evidence was presented to support the mayhem conviction; (4) the reasonable doubt instruction was unconstitutional; and (5) three of the aggravating circumstances provided to the jury were improper and constituted prejudicial error. For the reasons stated below, we conclude that all of appellant's contentions lack merit.
Appellant first contends that the evidence adduced at trial was insufficient to support the first degree murder conviction because there was insufficient evidence as to the required element of premeditation. See Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981). See also NRS 200.030(l)(a). We have previously stated that the time lapse between the premeditation and deliberation and the act of killing "need only be an instant." Scott v. State, 92 Nev. 552, 555, 554 P.2d 735, 737 (1976). We conclude that a jury, acting reasonably, could have been convinced beyond a reasonable doubt that appellant killed Oretha with premeditation. Wilkens v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).
Appellant next contends the district court erred when it denied his motion to dismiss the first degree kidnaping charge. Appellant argues that he was charged with kidnaping Vanita for the purposes of committing sexual assault, pursuant to NRS 200.310, and contends that the movement or asportation of Vanita was incidental to the physical attack against her.
In Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988), overruled on other grounds Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), we concluded that the physical restraint of the victim is sufficient to establish kidnaping as an additional offense. Moreover, we further stated: "[t]he kidnaping was not incidental to the extortion because the restraint increased the risk of harm. Finally, the restraint had an independent purpose and significance as it was essential to the accomplishments of mayhem." Id. at 354, 760 P.2d at 105. We thus conclude that the act of binding Vanita's hands and feet was sufficient evidence to establish the kidnaping charge since these acts increased the risk of harm to Vanita and had independent significance with regard to appellant's ability to commit the sexual assault.
Appellant next contends there was insufficient evidence adduced at trial to support the mayhem conviction because there was no evidence presented that Vanita's arm injury was permanent. NRS 200.280 states in pertinent part that "[m] ay hem consists of unlawfully depriving a human being of a member of his body, or disfiguring or rendering it useless. If any person cuts out or disables the tongue . or disables any limb or member of another . . . that person is guilty of mayhem . . . ."
Appellant argues the only evidence presented regarding the injury was Vanita's testimony that she had nerve damage and had not regained full ability to lift her wrist at the time of trial. We have previously stated: "Whether the victim is disfigured, and whether the disfigurement is permanent, are questions of fact for the jury." Lomas v. State, 98 Nev. 27, 29, 639 P.2d 551, 552 (1982). We conclude that the jury had sufficient evidence to find that Vanita's injuries were permanent. See Wilkens, 96 Nev. at 374, 609 P.2d at 313 (1980).
Appellant next contends that Jury Instruction No. 32, which instructed the jury on reasonable doubt, is unconstitutional. We recently upheld the identical instruction in Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991). We decline appellant's invitation to re-examine our holding in Lord.
Finally, appellant challenges the instructions regarding three aggravating circumstances that were given to the jury during the first penalty hearing. We conclude that there was no prejudicial error.
Jury Instruction No. 46 contained the aggravating circumstances alleged by the State. Alleged aggravating circumstance No. 1 stated that the "murder was committed by a person under sentence of imprisonment, to wit: Robbery." In support of this allegation, the State offered two judgments of conviction during the penalty phase: an April 1980 robbery conviction and an April 1985 burglary conviction.
At the second penalty hearing before the three-judge panel, the State again offered the aggravating circumstance. At that time, the court pointed out that a pre-sentence report, previously admitted during that proceeding, indicated the robbery conviction had expired on July 18, 1987. Upon motion of the State, the court then amended the instructions to read "to wit: Burglary."
Appellant contends that, since he was not under a sentence of imprisonment for robbery when he committed the murder, the court erred in giving Jury Instruction No. 46. We conclude that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1966). Appellant was under a sen tence of imprisonment for burglary. Three other aggravating circumstances were present. There were no mitigating circumstances. Appellant's crimes were brutal and heinous. Considering all of these circumstances, we cannot believe that the jury might have returned an acquittal but for the instructional error.
Aggravating Circumstance No. 3 in Jury Instruction No. 46 stated that "[t]he murder was committed while the person was engaged in the commission of or an attempt to commit any sexual assault." Appellant contends that the aggravating circumstance is unsupported by the evidence because, although appellant did commit a sexual assault, he did not kill the sexual assault victim. We conclude that NRS 200.033(4) does not require the sexual assault to be perpetrated against the homicide victim.
NRS 200.033(4) authorizes an aggravating circumstance for murder committed in the commission of the following crimes: robbery, sexual assault, arson in the first degree, burglary, invasion of the home or kidnaping in the first degree. See id. Nothing in the statute implies that the victim of the robbery, kidnaping, or sexual assault must be the homicide victim. Rather, the statute is intended to punish defendants who commit a murder while in the commission of certain inherently dangerous felonies.
In the present case, appellant murdered Oretha Hames in the commission of a sexual assault against Vanita. Since NRS 200.033(4) is not limited to cases involving sexual assaults perpetrated against the homicide victim, the instruction regarding Aggravating Circumstance No. 3 was proper.
Appellant lastly contests the validity of the aggravating circumstance based upon depravity of mind. Appellant's contention has merit.
This court recently addressed the constitutionality of an aggravating circumstance based upon depravity of mind. See Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990), cert. denied, . U.S. . (1991). In Robins, we construed NRS 200.033(8) as requiring "[tjorture, mutilation or other serious and depraved physical abuse beyond the act of killing itself, as a qualifying requirement to an aggravating circumstance based in part upon depravity of mind." Id. at 629, 798 P.2d 570. Accord Jimenez v. State, 106 Nev. 769, 801 P.2d 1366 (1990). Since no factual predicate for a finding of torture, mutilation or depraved physical abuse existed beyond the killing of the victim by a blow with a hammer, we are forced to conclude that the aggravating circumstance based upon depravity of mind must fail.
Despite our rejection of the aggravating circumstance based upon depravity of mind, we are convinced that the sentence of death should stand because of the weight properly accorded to the remaining, valid aggravating circumstances. The murder was committed in basic conjunction with a brutal sexual assault. Also, at the time of the murder, appellant was under sentence of imprisonment for burglary. Considering these circumstances, and the lack of any mitigating circumstances whatsoever, we conclude that the infirm aggravating circumstance based upon depravity of mind is harmless beyond a reasonable doubt.
Appellant's remaining contentions are meritless. We therefore affirm appellant's conviction and sentence of death.
Clark County Medical Examiner Dr. Nina Hollander performed the autopsy on Oretha and labeled the cause of death as "multiple blunt trauma and stab wounds of the head and neck."
NRS 175.556 states in pertinent part:
If a jury is unable to reach a unanimous verdict upon the sentence to be imposed, the supreme court shall appoint two district judges from judicial districts other than the district in which the plea is made, who shall with the district judge who conducted the trial, or his successor in office, conduct the required penalty hearing to determine the presence of aggravating and mitigating circumstances, and give sentence accordingly.
Jury Instruction No. 32 states:
The defendant is presumed to be innocent until the contrary is proved. This presumption places upon the State the burden of proving beyond a reasonable doubt every material element of the crime charged and that the defendant is the person who committed the offense.
A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire comparison and consideration of all the evidence, are in such a condition that they can say they feel an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must be actual and substantial, not mere possibility or speculation.
If you have a reasonable doubt as to the guilt of the defendant, he is entitled to a verdict of not guilty.
NRS 200.033(8) states that an aggravating circumstance may be found where "[t]he murder involved torture, depravity of mind or the mutilation of the victim." Jury Instruction No. 47 states:
The condition described as depravity of mind is characterized by an inherent deficiency.of moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for human dignity and which is indifferent to human life. It is a state of mind outrageously, wantonly vile, horrible or inhuman.
Pursuant to NRS 177.055, we have considered all errors enumerated by way of appeal. We also determine that the evidence was sufficient to establish the existence of aggravating circumstances and holds that appellant's sentence was not imposed under the influence of passion, prejudice, or any arbitrary factor. Additionally, we conclude that appellant's sentence of death is not excessive, considering both the crime and the defendant.