BILLY RAY RILEY, Appellant, v. THE STATE OF NEVADA, Respondent
Riley v. State
Springer and Steffen, JJ., concur.
BILLY RAY RILEY, Appellant, v. THE STATE OF NEVADA, Respondent.
BILLY RAY RILEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21240
March 28, 1991
808 P.2d 560
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 William, T. Root, Deputy District Attorney, Clark County, for Respondent.
OPINION
By the Court,
Rose, J.:
This case involves the conviction of Billy Ray Riley for first degree murder with use of a deadly weapon and a sentence of death. The issue at hand is whether this court should impose sanctions against Riley's attorney, Deputy Public Defender Stephen J. Dahl, for failing to comply with the briefing schedule. We conclude that sanctions should not be imposed.
On July 25, 1990, this court entered an order setting forth a briefing schedule in accordance with SCR 250(IV)(H). Pursuant to that schedule, appellant's opening brief was due to be filed on or before August 30, 1990. The order admonished counsel that, pursuant to SCR 250(IV)(H), "sanctions may be imposed for failure to comply with this schedule." On August 3, 1990, Dahl moved for reconsideration of the order of July 25, 1990, or, in the alternative, for leave to withdraw from defending Billy Ray Riley. On August 8, 1990, this court denied the motion, concluding that counsel did not lack the time, ability, resources and commitment to comply with the briefing schedule set forth in the prior order.
On August 30, 1990, Dahl moved for another extension of time within which to file the opening brief. On September 13, 1990, this court denied the motion and directed Dahl to file the opening brief within five working days. The brief was therefore due on or before September 20, 1990. On September 20, 1990, Dahl submitted a partial opening brief and a motion requesting a 30-day extension of time within which to file a completed opening brief. In support of the motion, he detailed the various steps which he and the Public Defender's Office had taken to complete the opening brief since entry of the order of July 25, 1990, setting forth the briefing schedule. These steps included the assignment of a deputy to assist Mr. Dahl in this appeal, the reorganization of the capital murder team, and Dahl's personal efforts to complete the brief after the deputy assisting him was interrupted in her efforts by her delivery of twins.
Mr. Dahl represented that during the 35-day period between August 13 and September 17, 1990, he worked a total of 22 days and spent almost 81 hours (44.7 percent of his time) working on the Riley appeal. The briefing was further delayed because Dahl spent 28.5 hours instituting a federal suit to enjoin the capital case guidelines promulgated by our court which require, among other things, strict briefing schedules. Dahl also contended that he had expected the appeal to be governed by "the old rules and practice" under which he had until September 19, 1990, before he was required to seek any extensions of time from this court. He further argued that SCR 250 does not apply to the Riley appeal, and that the Clark County Public Defender's Office had no notice that it would be governed by SCR 250. He indicated that because of this lack of notice, the Public Defender's Office had not commenced work on the appeal as of July 25, 1990, the date of this court's order setting a briefing schedule, and that this court's order shortened the time for preparation of the opening brief to 30 days.
On October 15, 1990, this court entered an order stating that Dahl had made a sufficient effort to comply with this court's prior orders. We returned the partial opening brief unfiled, and we granted Dahl 10 days to file the opening brief. On October 22, 1990, Dahl filed a third motion for an extension of time, stating that anticipating either a prompt response to the September 20 motion, or 30 days from an order granting the application, he ceased work on the opening brief in the instant case and devoted his efforts to working on other long-pending matters.
On November 5, 1990, this court entered an order granting Dahl until November 13, 1990, to file the opening brief. The order further gave Dahl 15 days to show cause why this court should not impose sanctions against him for his "dilatory conduct." Dahl filed a response on November 13, 1990, requesting that the one-signature order of November 5, 1990, be reconsidered by the entire court. He further submitted his affidavit setting forth reasons why he was not dilatory in the instant case, and why sanctions should not be imposed, noting that his motion of September 20, 1990, requested an extension of time or, in the event this court determined that he has not represented Riley adequately, for leave to withdraw from the case. Dahl stated that the latter request rendered uncertain his status as Riley's attorney pending this court's ruling on the request. Under these circumstances, Dahl felt he could not continue working on the opening brief at the expense of other important pressing matters, including a petition for rehearing, a reply brief, two death penalty hearings and various related motions, interviews with his clients at the Ely State Prison and a case involving the murder of an FBI agent. Dahl was unable to complete preparation of the opening brief within six days of October 19, 1990, the date on which he received this court's order of October 15, 1990.
Dahl had other important matters which had been put on hold and awaited his attention. As team chief of the capital murder team, he had many tasks, including the preparation of appeals and assisting other deputies with trial preparation and motions. Each team trial deputy has at least six death penalty cases at a time. There is no indication that Dahl purposely violated our briefing orders or could have complied by using due diligence. Dahl gave compelling reasons for the delays in this case, and there was no willful failure to comply with our briefing rules.
The dissenting opinion provides a list of cases to establish that the system is flawed. We agree that there have been unconscionable delays in many death penalty cases. However, the facts of those cases are distinctly different from the case at hand. Riley's notice of appeal was filed on April 16, 1990, and today, March 28, 1991, we issue our opinion affirming his conviction and death sentence. This court has done everything possible to prevent such delays, including the adoption of the death penalty case guidelines; and we do share the frustration expressed by the dissenting opinion relative to the inability to finalize the death penalty cases. However, the delays in processing death penalty cases occur far more frequently and involve much more time in the federal court system than those generally encountered in Nevada courts.
We see no reason to conclude that because Dahl could not meet the strict briefing schedule, he is the sole and primary person at fault. Rather, it is more likely the fault of the system. The Public Defender should assign sufficient personnel to the appellate division to meet the briefing requirements of this court. And, if the Public Defender does not have an adequate number of attorneys, it is the county's obligation to provide them. It would be inappropriate to impose sanctions on a deputy public defender who has informed us of his problems and has caused no egregious delays. Therefore, we conclude that he was not dilatory in his professional duties in this matter, and sanctions will not be imposed.
Springer and Steffen, JJ., concur.