JASON EVAN BROWNE, Appellant, v. THE STATE OF NEVADA, Respondent
Browne v. State
Shearing, C. J., and Rose, J., concur.
JASON EVAN BROWNE, Appellant, v. THE STATE OF NEVADA, Respondent.
JASON EVAN BROWNE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28378
February 26, 1997
933 P.2d 187
David M. Schieck, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney and James Tufteland, Chief Deputy District Attorney and David Schwartz, Deputy District Attorney, Clark County, for Respondent.
OPINION
By the Court,
Young, J.:
Appellant Jason Evan Browne ("Jason") was convicted of first degree murder for beating his wife, Chantelle Betty Elaine Browne ("Chantelle"), to death with a baseball bat. He was sentenced to death due to the aggravating factor of mutilation.
On appeal, Jason contends that certain statements made by the prosecutor during opening arguments constitute reversible error. He also alleges that certain hearsay statements were improperly admitted. In addition, he argues that the jury instructions on mutilation were constitutionally infirm. Lastly, he alleges that the evidence was insufficient to support his conviction of first degree murder and the death sentence.
We conclude that Jason's contentions are without merit and, accordingly, affirm the conviction and sentence.
FACTS
Jason and Chantelle were married in 1991. They each had children from prior relationships, and they had a baby together. All together, six children lived with the couple.
On November 5, 1993, the Browne family was visiting their next door neighbors, the Paynes. There, Jason had two to three bottles of beer. Around 6 p.m., the Browne family and the Payne children, Jeremy, Nichole, and Scottie, returned to the Browne residence where all the children were to spend the night. Around 9 p.m., Jason and Chantelle started arguing and fighting in their bedroom. At this time most of the children were in the living room, either sleeping or watching television. Shaun, Chantelle's nine-year-old son, heard his mother scream, "He's choking me!" She also yelled to Shaun to get Jason out of the house. Shaun opened the front door and told Jason to leave. Jason refused and Chantelle tried to run out the door. Jason blocked her way, slamming and locking the door to prevent her from leaving the house. Jason then dragged Chantelle by her arm along the hallway floor back into their bedroom. Shaun and Jeremy, the ten-year-old neighbor, attempted to intervene by pulling Jason and Chantelle apart.
Shaun went into his bedroom and got a baseball bat for himself and then retrieved another bat from the backyard for Jeremy. The boys returned to the living room to watch television. At some point in the evening, Jason tried to hug Chantelle and urged her to go out with him. Chantelle refused and started hitting and screaming at Jason. Jason then suggested they go into the kitchen to talk; Chantelle agreed.
Shortly thereafter, at around midnight, Shaun heard his mother screaming from the kitchen, "Shaun, get him off of me. He's going to kill me." Shaun ran into the kitchen, bringing his bat, and saw Jason punching Chantelle in the stomach six or seven times with his fist. In order to protect his mother, Shaun swung the bat at Jason, but missed. Jason grabbed the bat and pushed Shaun in the chest until Shaun was forced to release it. Chantelle was sitting in a kitchen chair when Jason kicked her down to the floor and began hitting her about the face and head with the bat. Shaun yelled and Jeremy entered the kitchen.
Chantelle attempted to defend herself with her arms until Jason hit her with the bat in the ribs, and Chantelle's arms fell helplessly to her sides. Jason paused and stated, "Now it's time to call the police." Jason then continued to hit Chantelle with the bat as she lay limp on the floor. Jeremy's, Nichole's, and Scottie's testimony was consistent. Specifically, Jeremy testified that during the small portion of the beating that he observed, Jason hit Chantelle at least fifteen times. It is undetermined exactly how many times Jason hit Chantelle throughout the entire beating.
Jeremy unlocked the front door for Nichole, and most of the children ran out of the house to the Payne residence next door screaming, "He's killing her, he's killing her." Scottie testified that while observing the beating, at one point he noticed that Jason paused, looked at Chantelle, and then continued to beat her although she was not moving. Scottie was the last child to run out of the house.
As Shaun left the house, he looked behind and saw Jason leave the house, get into his car, and drive away. After the children arrived at the Payne house, Ms. Payne's boyfriend went to the Browne residence and saw a body lying in the kitchen. He recognized who the body was only by hair color. Otherwise, Chantelle was unrecognizable.
Officer Robert Tanner was dispatched to the crime scene. Upon arriving at the Browne house, he went to the kitchen to check Chantelle for any signs of life, but did not find any. He noticed blood splattered on the floor, ceiling, and walls of the kitchen. He also observed a baseball bat lying across Chantelle's body.
Officer Robert Mercer found Jason's parked car the next morning. However, Jason was not present. Approximately an hour later, Jason approached Officer Mercer and indicated that he was the individual the police were looking for. Jason had dried blood on his clothes and shoes.
Jason was arrested and indicted by the grand jury for first degree murder. The prosecutor sought the death penalty based on the aggravating circumstance of mutilation. Jason moved to strike this aggravator, and an evidentiary hearing was conducted. The district court upheld the aggravator.
At trial, Chantelle's father, Claude Goode ("Goode"), testified that within a few days before her death, Chantelle told him she planned on leaving Jason because she feared he was going to kill her. Goode also testified that in his opinion, they did not have a good marriage.
Dr. Robert Jordan, the medical examiner, performed the autopsy on Chantelle's body. He testified that Chantelle suffered significant trauma to her head. Her face was unrecognizable and had numerous lacerations and facial fractures. He stated the head was one large bruise due to the swelling and hemorrhaging into the underlying skin. In addition to the numerous defensive wounds on her arms, Chantelle had a "hinge fracture." This type of fracture is the result of tremendous force applied to the top of the head, transmitting force down the sides of the skull along the thinner bones to the base of the skull. The fracture occurs at the base of the skull, rather than the top. She also had a severe lacération at the top of her head, exposing her skull, which is consistent with a hinge fracture.
Dr. Jordan testified that there were "no real life-like contours to the head." He could not state which particular blow actually caused death because Chantelle died of multiple blunt trauma due to an accumulation of blows to her head and face. Dr. Jordan further testified that Chantelle may have lived for three to five minutes after the trauma began. He stated that although he could not be certain, it was possible that post mortem injuries existed.
The jury found Jason guilty of first degree murder.
At the penalty hearing, the State presented evidence of Jason's prior acts of violence and domestic violence. Eight police officers testified to Jason's violent nature. Jason had cut a prior girlfriend's throat, held a loaded gun to Chantelle's head, beat up Chantelle on several occasions, attempted to run over Chantelle while her children were in the car, and violently resisted arrest.
Dr. Jordan further testified at the penalty hearing, explaining Chantelle's injuries and cause of death. He testified that the brain and face are essential parts of the human body. Chantelle's head and face suffered considerable destruction and "extensive mutilation." He defined mutilation as something which cannot be recognized for what it is supposed to be. Dr. Jordan testified that her injuries were a result of "overkill"; that is, Jason inflicted more trauma than necessary to cause death.
Jason's sister and brother also testified at the penalty hearing. The sister was not aware of any violence perpetrated by Jason on his prior girlfriends, other than when Jason once cut a girlfriend's throat. She was, however, aware of the violence to Chantelle. She stated that Chantelle was very erratic and jealous, but the couple had attended counseling to work out their problems. The sister believed they had a good marriage, despite the abuse. However, she was unaware that Chantelle filed for divorce and obtained restraining orders against Jason.
Jason's brother testified he was unaware that Jason was violent with Chantelle. However, he was aware of six or seven restraining orders that she had against Jason. He testified that Chantelle had a bad attitude, was argumentative, and was often the instigator of arguments.
The jury found that Chantelle was mutilated and recommended a sentence of death. The district court sentenced Jason to death, but granted a stay of execution pending this appeal.
DISCUSSION
1. Prosecutorial misconduct
Jason argues that his conviction should be reversed because the prosecutor made allegedly improper comments during opening statements. Defense counsel objected to each comment, and the district judge sustained them. The judge and defense counsel admonished the jury that the prosecutor's opening statements are not evidence.
The allegedly improper comments were: (1) "What happened to Chantelle Browne in 1993, on November 5, 1993 was plain and simply a cold-blooded, premeditated murder, murder in the first degree"; (2) "[Tjhis trial is about a selfish and cruel man"; (3) Chantelle's home was "turned into a living hell that night"; and (4) "The evidence will show that this defendant made a decision to take a human life on November 6."
In Garner v. State, 78 Nev. 366, 371, 374 P.2d 525, 528 (1962), we held that during opening statements, a prosecutor can outline the theory of the case and propose facts he intends to prove, as long as he states the facts fairly.
We reviewed the statements Jason opposes and conclude that they do not amount to prosecutorial misconduct. To the contrary, the prosecutor was merely informing the jury that he intended to prove that the murder was premeditated. The only statement that could conceivably be considered improper was referring to Jason as "a selfish and cruel man"; however, we find that this comment did not rise to a level of misconduct requiring reversal. See Runningeagle v. State, 859 P.2d 169, 173-74 (Ariz. 1993) (holding the prosecutor's comment about the "evil" and "unspeakable horror" perpetrated by the defendant was merely characterizing the evidence); Benson v. State, 802 P.2d 330, 353-54 (Cal. 1990) (holding that the prosecutor's comment, "This crime is perhaps the most brutal, atrocious, heinous crime," was merely a comment on the nature of the offense and was permissible).
2. Hearsay statements
Jason argues that the district court committed reversible error by admitting two sets of hearsay statements. The first concerned Goode's opinion that his daughter had a bad marriage. Defense counsel objected to Goode's opinion of the marriage, because it was based on his conversations with Chantelle, rather than on his personal knowledge. The judge overruled the objection, ruling that the present sense impression exception applied. See NRS 51.085.
The second set of hearsay statements concern a conversation Goode had with his daughter a few days prior to her death. Goode testified that Chantelle's voice was quivering and she sounded upset and despondent. She told him she planned on leaving Jason because she was afraid he was going to kill her. The judge overruled defense counsel's hearsay objection, ruling that the excited utterance exception applied. See NRS 51.095.
Goode opinion about the marriage
Jason contends that the present sense impression exception is inapplicable because Chantelle told her father about the physical abuse on the phone, after any domestic violence incidents actually took place. The policy for admitting statements under this exception is that the statement is more trustworthy if made contemporaneously with the event described. Narciso v. State, 446 F. Supp. 252, 285 (E.D. Mich. 1977).
We agree with Jason that the present sense impression exception does not apply. The record does not indicate that Chantelle's statements to her father regarding the physical abuse occurred at the same time as the abuse itself. However, even if the district court gave the wrong reason for admission, no reversible error occurred if the statements were still admissible for another reason. Dearing v. State, 100 Nev. 590, 592, 691 P.2d 419, 421 (1984).
In Shults v. State, 96 Nev. 742, 747-48, 616 P.2d 388, 392 (1980), we held that out-of-court statements may be used as foundation for a non-hearsay purpose so long as the substance of those statements is not revealed to the jury. We also noted that the witnesses were subject to cross-examination as to the existence of the statements. Therefore, in Shults, we held the hearsay rule was not violated. Id.
In the present case, we note that the alleged hearsay statements were not offered to prove the truth of the matter asserted. Rather, the fact that Chantelle revealed certain information to her father was used solely as foundation for Goode's opinion regarding Chantelle's and Jason's marriage. We further conclude that Goode did not reveal the substance of Chantelle's statements and that defense counsel had ample opportunity to cross-examine him about these conversations. Accordingly, his opinion about Chantelle's marriage was not improperly admitted at trial. Regardless, we conclude Goode's opinion, standing alone, did little to convince the jury that Jason committed first degree murder; therefore, any potential error was harmless. See Franco v. State, 109 Nev. 1229, 1237, 866 P.2d 247, 252 (1993) (holding that hearsay errors are subject to harmless error analysis).
Chantelle's statements to Goode prior to her death
The statements that Chantelle planned to leave Jason and that she was afraid Jason was going to kill her were admitted as an excited utterance. In Hogan v. State, 103 Nev. 21, 23, 732 P.2d 422, 423 (1987), we held that the victim's hearsay statements to two witnesses that her husband had threatened to kill her were admissible as an excited utterance. The victim made these statements right after the threat and an hour after the threat. Both times, the victim was frightened, shaky, nervous, and crying. We decided that since the victim was still excited even one hour later (and not only contemporaneously), both statements were admissible as an excited utterance.
Similarly, when Chantelle spoke with her father, she was upset, excited, and frightened. According to Hogan, even if Chantelle's statements were made an hour after a startling event, they may still be considered an excited utterance. However, the record here does not indicate the timing of the event precipitating her fear. Accordingly, as timing is often the determining factor for an excited utterance, these statements cannot fall into this exception.
Therefore, the district court improperly admitted the statements as an excited utterance. However, after a harmless error analysis, we conclude reversal of Jason's conviction is unnecessary. See Franco, 109 Nev. at 1237, 866 P.2d at 252.
3. Admission of the photographs
Jason argues that "gruesome" autopsy pictures of Chantelle were erroneously admitted at trial and at the penalty hearing because "the prejudicial effect of the photographs outweighed any possible probative value."
The State responds that the pictures were admitted to (1) show Chantelle's defensive wounds, (2) demonstrate the extent of her injuries, (3) prove mutilation at the penalty hearing, and (4) aid in Dr. Jordan's testimony.
We have repeatedly held that "[djespite gruesomeness, photographic evidence has been held admissible when . . . utilized to show the cause of death and when it reflects the severity of wounds and the manner of their infliction." Theriault v. State, 92 Nev. 185, 193, 547 P.2d 668, 674 (1976) (citations omitted). Thus, gruesome photos will be admitted if they aid in ascertaining the truth. Scott v. State, 92 Nev. 552, 556, 554 P.2d 735, 738 (1976); Allen v. State, 91 Nev. 78, 82, 530 P.2d 1195, 1197-98 (1975).
In addition, the admission of photographs lies within the sound discretion of the district court. Absent an abuse of discretion, we will not reverse that admission. Domingues v. State, 112 Nev. 683, 695, 917 P.2d 1364, 1367 (1996); Redmen v. State, 108 Nev. 227, 231, 828 P.2d 395, 398 (1992); Benson, 802 P.2d at 348.
In Jason's case, the district court observed all the photographs that the prosecution wanted admitted as evidence and decided that the prejudice of some pictures substantially outweighed their probative value. Therefore, those photographs were excluded. However, the court found that the particular photographs at issue, which were admitted, were extremely probative, and the probative value was not substantially outweighed by prejudice. Consequently, we conclude that the judge did not abuse his discretion by admitting these photographs.
4. Sufficiency of the evidence in the guilt phase
Jason contends that the evidence presented at trial was enough to constitute only second degree murder because "the events happened upon a quick rage and [Jason] demonstrated remorse and confusion thereafter."
The test for sufficiency of the evidence upon appellate review "is not whether this court is convinced of the defendant's guilt beyond a reasonable doubt, but whether a jury, acting reasonably, could be convinced to that certitude by evidence it had a right to accept." Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974); see also Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974). Therefore, we must determine whether the jury acted unreasonably in assessing the evidence before them. Edwards, 90 Nev. at 258-59, 524 P.2d at 331.
Here, evidence which a jury could reasonably conclude amounted to premeditation consists of (1) Shaun's and Scottie's testimony that Jason stopped beating Chantelle, stated "Now it's time to call the police," and resumed the beating; (2) Shaun's and Nichole's testimony that shortly before the beating Chantelle screamed, "He's choking me" and "He's going to kill me"; (3) Scottie's testimony that during the beating, Jason paused, looked at Chantelle, and continued beating her despite the fact that she was not moving; and (4) Dr. Jordan's testimony regarding the extent of Chantelle's injuries.
Accordingly, we conclude that the evidence is sufficient for "any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original).
5. Constitutionality of the mutilation aggravating factor
Jason argues that the mutilation aggravating circumstance in NRS 200.033(8) is unconstitutionally vague and overbroad. He contends every murder involves mutilation under the definition that the district court gave to the jury.
In Deutscher v. State, 95 Nev. 669, 677, 601 P.2d 407, 412 (1979), we held the mutilation aggravating factor is not vague because this court found the "legislative enactment [NRS 200.033(8)] to be plain and intelligible." See also Rogers v. State, 101 Nev. 457, 467, 705 P.2d 664, 671 (1985). We further held that since the district court defined the term "mutilate" for the jury, the aggravator passed constitutional muster. Deutscher, 95 Nev. at 677, 601 P.2d at 412.
Furthermore, the United States District Court for the District of Nevada and United States Court of Appeals for the Ninth Circuit have already specifically upheld as constitutional the same mutilation instruction, defining mutilation, used in Jason's case. Deutscher v. Whitley, 884 F.2d 1152, 1162 (9th Cir. 1989); Deutscher v. Whitley, 682 F. Supp. 1098, 1106 (D. Nev. 1988). Accordingly, we conclude that the instructions for the mutilation aggravator were not constitutionally infirm.
6. Sufficiency of the evidence in the penalty phase
Jason alleges that the State's evidence did not prove mutilation beyond a reasonable doubt. Mutilation requires an act beyond the act of killing itself. Jason states that since the cause of death was multiple blunt trauma, he did no act beyond that; therefore, no mutilation could exist. He further contends that if this court rules that multiple blows is sufficient to constitute mutilation, the consequences will be great. Jason alleges the ramifications of upholding his death sentence will be that a mutilation aggravator can be created for
1. Any case where there is more than one gunshot wound;
2. Any case where there is more than one stab wound;
3. Any blunt trauma case where there is more than the number of blows sufficient to cause death (irrespective of the knowledge, belief or intent of the perpetrator); and
4. Any case where there is injury to any part of the body other than the injury that caused death, i.e., make a limb imperfect.
We conclude that Jason exaggerates the State's position and the consequences of upholding Jason's sentence. This is not a case where there was simply "more than one" blow to the head. This case involves well over fifteen severe blows. Therefore, although Dr. Jordan could not ascertain exactly which blow killed Chantelle, he testified that any one of those blows could have caused Chantelle's death. Accordingly, due to the severity of the beating in its entirety, we hold that a jury could conclude that Jason committed acts beyond the killing itself.
Moreover, in Parker v. State, 109 Nev. 383, 394-95, 849 P.2d 1062, 1069-70 (1993), we affirmed a death sentence, holding that enough evidence existed for the jury to find, beyond a reasonable doubt, that the victim was mutilated. In Parker, the victim's brain and skull were crushed and destroyed when the defendant repeatedly hit the victim's head with a rock. The medical examiner testified to the extensive damage to the victim's head and that her brain was "an essential part of [the victim's] body." We noted that even after the victim lost consciousness, the defendant continued to strike her with the rock, splattering blood on the walls, stove and countertops of the kitchen. Id.
Likewise, Dr. Jordan testified that Chantelle's brain was an essential part of her body, that her brain was completely destroyed, and that in his opinion this was "extensive mutilation" and "overkill." There was also evidence that even after Chantelle lost consciousness, Jason continued to hit her in the head with the bat. In addition, blood was splattered on the kitchen ceiling, walls, floor, cupboards, and door; one drop even made its way into the next room.
Jason contends Parker is distinguishable because the Parker victim's body was found with a knife plunged into her chest, ligatures around her neck, and evidence of sexual penetration after death. Jason argues these extra facts, taken together, constituted the mutilation in Parker. He contends since these extra facts are not present here, no mutilation was proven. However, we determined in Parker that these extra facts contributed to the depravity of mind aspect of the aggravator and not to the mutilation portion of the aggravator. Parker, 109 Nev. at 394-95, 849 P.2d at 1069-70.
We stated that "[t]he evidence presented at trial supports the jury's finding of mutilation, in that Parker 'permanently destroy[ed]' an essential part of [the victim's] body, her brain." Id. at 394, 849 P.2d at 1069 (emphasis added). We then explained the extent of damage to the victim's brain inflicted by the beating. As an additional factor, but not as a determining one, we noted the existence of the knife. Subsequently, as a separate issue, we discussed the other facts in the context of depravity of mind. Id. at 395, 849 P.2d at 1070.
Therefore, according to Parker, multiple blunt trauma which destroys the brain is sufficient for mutilation. After a thorough review of the record, we conclude that the evidence presented in Jason's case was sufficient for the jury to find mutilation based on the "overkill" nature of the baseball bat beating.
In cases in which the death penalty is imposed, this court is also statutorily required to consider whether the death sentence was imposed under the influence of passion, prejudice, or any arbitrary factor and whether the sentence of death is excessive considering both the crime and the defendant. NRS 177.055(2). We conclude that the death sentence was not imposed under the influence of passion, prejudice, or any arbitrary factor, nor was it excessive in this case considering the senseless and violent nature of the crime and the defendant.
CONCLUSION
We conclude that Jason's contentions do not present enough error, if any at all, to overturn his conviction or his death sentence. Consequently, we affirm the conviction and sentence.
Shearing, C. J., and Rose, J., concur.
The standard for excluding evidence based on prejudice is: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." NRS 48.035(1) (emphasis added). Jason never contends the probative value is substantially outweighed, merely that it is "outweighed." Consequently, even if Jason were correct, these pictures do not meet the statutory requirement for exclusion.
DePasquale v. State, 106 Nev. 843, 848, 803 P.2d 218, 221 (1990), held that "[p]remeditation and deliberation can be inferred from the nature and extent of the injuries, coupled with repeated blows."
Instruction 11 reads: "You are instructed that the term 'mutilate' means to cut off or permanently destroy a limb or essential part of the body or to cut off or alter radically so as to make imperfect."
Instruction 12 reads: "In order for mutilation to be found as an aggravating circumstance there must be mutilation of the victim beyond the act of killing."
The Honorable A. William Maupin, Justice, did not participate in the decision of this appeal.