DAVID E. RIGGINS, Appellant, v. THE STATE OF NEVADA, Respondent
Riggins v. State
Mowbray, C. J., and Steffen, J., concur.
DAVID E. RIGGINS, Appellant, v. THE STATE OF NEVADA, Respondent.
DAVID E. RIGGINS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 19873
March 28, 1991
808 P.2d 535
Mace J. Yampolsky, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Bill A. Berrett, Deputy District Attorney, Clark County, for Respondent.
OPINION
By the Court,
Young, J.:
On November 20, 1987, appellant David Riggins rode with his roommate, Lowell Pendrey, to Paul Wade's apartment, where Pendrey waited outside while Riggins went in for about half an hour. Shortly after Riggins left Wade's apartment, Wade's girlfriend went to his apartment when she was unable to reach him by telephone. She found Wade dead on the floor with multiple stab wounds and a number of dog bites. Police arrested Riggins the next evening. He was charged with first degree murder and robbery, both with use of a deadly weapon. After being found competent to stand trial, Riggins pleaded not guilty and not guilty by reason of insanity. Following a four-day trial held in November 1988, Riggins was convicted by a jury of first degree murder and robbery, both with use of a deadly weapon. The jury sentenced Riggins to death.
Within a week of being incarcerated, starting in late November 1987, Riggins was put on Mellaril, an antipsychotic drug. The medication was commenced because Riggins complained of hearing voices; he continued to be medicated through trial the following November, with increased dosages in December 1987, January, May, and July 1988. During February and March 1988 when Riggins was examined and found competent to stand trial, he was medicated with 450 mg. of Mellaril per day. At trial, Riggins was medicated with 800 mg. of Mellaril per day.
In June, defense counsel filed a motion to terminate administration of medication, arguing that medication during trial violated Riggins' right to present a defense and that Riggins had done nothing to demonstrate a need for medication. The State opposed the motion, contending that the medication was necessary to maintain Riggins' competency to stand trial. The court denied the motion following a hearing held in July.
On appeal, Riggins contends that his involuntary medication with antipsycotic drugs during the trial violated his Sixth Amendment right to a full and fair trial by depriving him of his right to present his natural demeanor to the jury as part of his insanity defense. Riggins also argues that the district court abused its discretion in denying his motion to terminate administration of medication. The State contends that the denial of the motion was within the discretion of the trial court and should not be disturbed on appeal absent a clear showing of abuse. See, e.g., Sparks v. State, 96 Nev. 26, 30, 604 P.2d 802, 804 (1980).
The question whether forced medication during trial violates a defendant's constitutional right to present a defense is one of first impression in Nevada. Other states that have considered this question all agree that the accused's demeanor has probative value where his sanity is in issue. See, e.g., Commonwealth v. Louraine, 453 N.E.2d 437 (Mass. 1983); State v. Law, 244 S.E.2d 302 (S.C. 1978). However, states are evenly divided over whether expert testimony about the effect of the medication can substitute for the jury's firsthand observation of the defendant's natural demeanor.
Those courts that have compelled medication have viewed the defendant's psychological makeup as evidence that can be explained to the jury. Accordingly, they have required that the jury be informed of the effect that the medication has on the defendant's behavior. See, e.g., Law, 244 S.E.2d 302. On the other hand, those courts that have upheld the defendant's right to be tried while unmedicated conclude that expert testimony may not substitute for firsthand observation of the defendant's natural demeanor. See, e.g., Louraine, 453 N.E.2d 437.
In this case, there was ample expert testimony regarding the effect that the Mellaril had on Riggins. After reviewing the differing decisions, we are persuaded that expert testimony was sufficient to inform the jury of the effect of the Mellaril on Riggins' demeanor and testimony. Accordingly, the district court did not abuse its discretion in denying the motion to terminate medication. Moreover, the denial of Riggins' motion to terminate medication did not deprive him of his rights to a full and fair trial and to present a defense. Compare Law, 244 S.E.2d at 306-307.
The jury's special verdict reveals that only one of the alleged aggravating circumstances was proved beyond a reasonable doubt: that the murder was committed while Riggins was engaged, alone or with others, in the commission of or an attempt to commit or flight after committing or attempting to commit a robbery, burglary, or kidnapping in the first degree. Riggins contends that the evidence was insufficient to establish burglary as an aggravating circumstance because there was no breaking and entering nor intent to commit a felony within Wade's house.
However, the instruction allowed the jury to find aggravation if Riggins was engaged in robbery or burglary. Because the jury found Riggins guilty of robbery during the guilt phase, they likely found that he committed the murder during the commission of the robbery, eliminating the necessity of establishing a breaking and entering with intent to commit a felony. We conclude that the jury's finding with respect to aggravation was supported by substantial evidence.
Riggins next contends that the voir dire violated his Sixth Amendment right to an impartial jury because the cursory questioning of the venire panel as a whole did not afford a reasonable assurance that individual prejudice would be revealed. Riggins also argues that the district court abused its discretion in denying his motion for individual sequestered voir dire.
In the designation of the record on appeal, Riggins' counsel designated "[a]ll pleadings and motions, the complete trial transcripts, excluding voir dire, and the Judgment of Conviction." (Emphasis added.) Thus, the record does not contain a transcription of the voir dire. Nor does the record contain the State's oral opposition to the motion and the possible basis of the district court's ruling on sequestered voir dire because counsel did not designate transcripts of the hearing on the motion.
It is the responsibility of the objecting party to see that the record on appeal before the reviewing court contains the material to which they take exception. If such material is not contained in the record on appeal, the missing portions of the record are presumed to support the district court's decision, notwithstanding an appellant's bare allegations to the contrary. See, e.g., State v. Zuck, 658 P.2d 162, 165-66 (Ariz. 1982); People v. Wells, 776 P.2d 386, 390 (Colo. 1989). Moreover, the scope and manner of voir dire examination is within the sound discretion of the district court and, on review, such discretion is accorded considerable latitude. Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937-38 (1978) (quoting Oliver v. State, 85 Nev. 418, 424, 456 P.2d 431, 435 (1969) and Spillers v. State, 84 Nev. 23, 27, 436 P.2d 18, 20 (1968)). For the foregoing reasons, we reject appellant's assignments of error regarding the voir dire examination.
Riggins next contends that the district court abused its discretion in denying his motion for co-counsel. He maintains that the court's failure to appoint co-counsel deprived him of his constitutional right to the effective assistance of counsel. After reviewing the record, however, we conclude that the district court did not abuse its discretion, pursuant to NRS 260.060, in denying the motion for co-counsel. See Sechrest v. State, 101 Nev. 360, 368, 705 P.2d 626, 632 (1985).
Riggins also contends that the district court abused its discretion in admitting a number of photographs during the penalty phase. He contends that the photographs, which depicted various scenes from the victim's apartment after the homicide, were duplicative because expert testimony and photographs previously admitted during the guilt phase were sufficient to illustrate the State's theory of murder by torture. Further, he asserts that the photographs were gory and inflammatory, and unduly prejudiced him. The State contends that the photographs were relevant and admissible to show torture, one of the three aggravating circumstances alleged by the prosecution.
Pursuant to NRS 48.035(2), the trial judge has discretion to exclude relevant evidence if its probative value is substantially outweighed by considerations including needless presentation of cumulative evidence. Moreover, under NRS 48.035(1), relevant evidence is not admissible if the danger of unfair prejudice substantially outweighs the probative value of the relevant evidence. However, NRS 175.552 allows evidence during the penalty hearing that may ordinarily be inadmissible.
Without deciding whether the photographs admitted during the penalty hearing were duplicative, we conclude that, given the trial court's broad discretion and the provisions of NRS 175.552, there was no error in allowing the photographs into evidence.
Lastly, Riggins contends that the district court erred in allowing the State to cross-examine Lowell Pendrey, the sole defense penalty phase witness, regarding his alleged homosexual relationship with Riggins. Riggins asserts that the court further erred in allowing the State's rebuttal witness to testify concerning a conversation she overheard regarding this alleged relationship. Rig-gins contends that this testimony inflamed the jury and unduly prejudiced him, requiring a new penalty hearing.
During cross-examination, Pendrey denied having a conversation in which he allegedly acknowledged that he and Riggins were homosexual lovers. The prosecution then called Ellen Bezian, sister of the victim's girlfriend, to rebut Pendrey's truthfulness. Over defense counsel's objection, the court first ruled that the State's effort to impeach Pendrey with questions about the conversation did not involve a collateral matter. Following two additional objections by defense counsel, the court ordered stricken the entire conversation, apparently finding the conversation too tenuous for impeachment purposes. The court then instructed the jury to disregard the conversation.
We conclude that the cross-examination of Pendrey was proper for purposes of showing possible bias. Therefore, we conclude that the district court did not err in initially allowing the prosecutor to question Bezian about the conversation.
In reviewing the overall record, we conclude that Riggins' contentions lack merit and that the sentence was not excessive, considering both the crime and the individual characteristics of the defendant. We hereby affirm his death sentence and the underlying convictions of first degree murder and robbery with use of a deadly weapon.
Mowbray, C. J., and Steffen, J., concur.