Hidalgo v. Eighth Judicial District Court
Hidalgo v. Eighth Judicial District Court
Concurring in Part
concurring in part and dissenting in part:
The majority correctly concludes that, under SCR 250, the imprecise language of the State’s notice of intent to seek the death penalty fails to clearly explain how the facts alleged support the aggravating circumstance defined by NRS 200.033(6), i.e., that “[t]he murder was committed by a person, for himself or another, to receive money or any other thing of monetary value.” I further concur with the majority that the State should be allowed to amend the notice of intent to remedy this deficiency. However, I would hold that the crime of solicitation to commit murder necessarily involves the communication of a “threat of violence to the person of another.”
NRS 200.033(2)(b).
Opinion of the Court
OPINION ON REHEARING
On December 27, 2007, this court issued an opinion in this case granting a petition for a writ of mandamus.
In this opinion, we consider whether solicitation to commit murder is a felony involving the use or threat of violence to the person of another within the meaning of the death penalty aggravator defined in NRS 200.033(2)(b). We conclude that it is not. We
FACTS
Petitioner Luis Hidalgo HI is awaiting trial on one count of conspiracy to murder Timothy Hadland, one count of first-degree murder for Hadland’s death (under alternative theories of principal, aiding and abetting, and coconspirator liability), and two counts of solicitation to commit the murders of two alleged witnesses to Had-land’s death. The State subsequently filed a timely notice of intent to seek the death penalty alleging three aggravating circumstances. The first and second aggravators are based on NRS 200.033(2)(b) and allege the two solicitation counts, assuming Hidalgo is found guilty of them, as prior felonies involving the use or threat of violence to another person.
On December 12, 2005, Hidalgo moved the district court to strike the State’s notice of intent. The district court heard argument on the motion in March and September of 2006 and denied the motion from the bench on September 8, 2006. This original petition challenges the district court’s ruling.
“This court may issue a writ of mandamus to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously.”
Aggravators one and two: solicitation to commit murder as a prior felony involving the use or threat of violence under NRS 200.033(2) (b)
Hidalgo argues that solicitation to commit murder cannot serve as a prior-violent-felony aggravating circumstance because it is not “[a] felony involving the use or threat of violence to the person of another” within the meaning of NRS 200.033(2)(b). We agree.
The crime of solicitation to commit murder is defined in NRS 199.500(2), which provides that “[a] person who counsels, hires, commands or otherwise solicits another to commit murder, if no criminal act is committed as a result of the solicitation, is guilty” of a felony. The elements of solicitation do not involve the use of violence to another, regardless of the crime solicited. The remaining question is whether solicitation of a violent crime can be considered an offense involving the threat of violence to the person of another. We conclude that it cannot.
As this court observed in Sheriff v. Schwarz, “[ujnlike other criminal offenses, in the crime of solicitation, ‘the harm is the
Other jurisdictions have concluded that solicitation to commit murder cannot support an aggravator based on a prior felony involving the use or threat of violence to another person. For instance, in Elam v. State, the Supreme Court of Florida held that solicitation to commit murder could not support an aggravator based on a prior felony involving the use or threat of violence to the person, concluding that “ [according to its statutory definition, violence is not an inherent element” of solicitation.
“The gist of criminal solicitation is enticement” of another to commit a crime. No agreement is needed, and criminal solicitation is committed even though the person solicited would never have acquiesced to the scheme set forth by the defendant. Thus, the general nature of the crime of solicitation lends support to the conclusion that solicitation, by itself, does not involve the threat of violence even if the crime solicited is a violent crime.12
The Supreme Court of Arizona addressed this issue in State v. Ysea.
The decisions in Elam, Lopez, and Ysea are not precisely on point because those courts relied on the statutory elements of the crime of solicitation, whereas we have held that the sentencer can look beyond the statutory elements to the charging documents and
Obviously, the nature of the crime Hidalgo allgedly solicited is itself violent. But this does not transform soliciting murder into threatening murder within our view of the meaning of the statute. As the Ysea court put it, “the mere solicitation to commit an offense cannot be equated with the underlying offense. . . . [Solicitation is a crime of communication, not violence, and the nature of the crime solicited does not transform the crime of solicitation into an aggravating circumstance.”
The State claims that California and Oklahoma both allow solicitation to commit murder to support a prior-violent-felony aggravator. However, the cases the State cites are not helpful to the State’s position. The defendant in the Oklahoma case stipulated that his two prior convictions involved the use or threat of violence, and the case contains no useful analysis of this issue.
We conclude that the threat provision of NRS 200.033(2)(b) was meant to apply in cases like Weber v. State
We conclude that solicitation to commit murder, although it solicits a violent act, is not itself a felony involving the use or threat of violence within the meaning of NRS 200.033(2)(b). We therefore conclude that the first two aggravators must be stricken.
Aggravator three: murder to receive money or any other thing of monetary value under NRS 200.033(6)
Hidalgo argues that the State’s notice of intent to seek the death penalty violates SCR 250 in alleging the third aggravating circumstance pursuant to NRS 200.033(6) — “[t]he murder was committed by a person, for himself or another, to receive money or any other thing of monetary value.” SCR 250(4)(c) provides that the notice of intent to seek death “must allege all aggravating circumstances which the state intends to prove and allege with specificity the facts on which the state will rely to prove each aggravating circumstance.” Furthermore, “a defendant cannot be forced to gather facts and deduce the State’s theory for an aggravating circumstance from sources outside the notice of intent to seek death. Under SCR 250, the specific supporting facts are to be stated directly in the notice itself.”
The State’s notice alleges in pertinent part:
The murder was committed by a person, for himself or another, to receive money or any other thing of monetary value, to-wit by: by [Espindola] (a manager of the PALOMINO CLUB) and/or [Hidalgo] (a manager of the PALOMINO CLUB) and/or Luis Hidalgo, Jr. (the owner of the PALOMINO CLUB) procuring DEANGELO CARROLL (an employee of the PALOMINO CLUB) to beat and/or kill TIMOTHY JAY HADLAND; and/or LUIS HIDALGO, JR. indicating that he would pay to have a person either beaten or killed; and/or by LUIS HIDALGO, JR. procuring the injury or death of TIMOTHY JAY HADLAND to further the busi*338 ness of the PALOMINO CLUB; and/or [Hidalgo] telling DEANGELO CARROLL to come to work with bats and garbage bags; thereafter, DEANGELO CARROLL procuring KENNETH COUNTS and/or JAYSON TAOIPU to kill TIMOTHY HADLAND; thereafter, by KENNETH COUNTS shooting TIMOTHY JAY HADLAND; thereafter, [Hidalgo, Jr.] and/or [Espindola] providing six thousand dollars ($6,000) to DEANGELO CARROLL to pay KENNETH COUNTS, thereafter, KENNETH COUNTS receiving said money; and/or by [Espindola] providing two hundred dollars ($200) to DEANGELO CARROLL and/or by [Espindola] and/or [Hidalgo] providing fourteen hundred dollars ($1400) and/or eight hundred dollars ($800) to DEANGELO CARROLL and/or by [Espindola] agreeing to continue paying DEANGELO CARROLL twenty-four (24) hours of work a week from the PALOMINO CLUB even though DEANGELO CARROLL had terminated his position with the club and/or by [Hidalgo] offering to provide United States Savings Bonds to DEANGELO CARROLL and/or his family.
This quoted portion of the notice includes a number of specific factual allegations. But the State’s repeated use of “and/or” to connect the numerous allegations undercuts rather than bolsters the notice’s specificity. The State is permitted to plead alternative fact scenarios in support of an aggravator, but the notice of intent must still be coherent, with a clear statement of the facts and how the facts support the aggravator. The notice here is not a clear statement of how the facts support the aggravator. When a notice connects a string of facts with “and/or,” it permits the finding of the aggravator based on any of the facts taken separately as well as together. If the State pleads its notice in this manner, each separate fact must support the aggravator, not just any of the facts taken together. The notice here, however, fails in this regard.
SCR 250(4)(c) is “intended to ensure that defendants in capital cases receive notice sufficient to meet due process requirements.”
Although the State is not required to include exhaustively detailed factual allegations to satisfy SCR 250(4)(c), the notice of intent must provide a simple, clear recitation of the critical facts supporting the alleged aggravator, presented in a comprehensible manner. Here, the principal problem with the notice of intent in this case is not the lack of factual detail. Rather, the State has alleged the factual allegations supporting the pecuniary gain aggravator in an incomprehensible format such that it fails to meet the due process requirements of SCR 250(4)(c).
In addition to the confusing “and/or” format, one example of a lack of clarity in the notice of intent appears in the State’s allegation that “[Hidalgo’s father] procur[ed] the injury or death of [Hadland] to further the business of the PALOMINO CLUB.” Although this allegation identified a victim and asserted that the murder was motivated by monetary gain, i.e., furthering the business, it lacked sufficient specificity because it failed to explain how the business would be furthered by Hadland’s murder. The submissions before this court indicate that Hadland verbally discouraged cab drivers from bringing customers to the Palomino Club and that the Club had suffered a marked decline in business as a result. However, absent from the notice of intent is any fact explaining how Hadland’s murder benefited the Palomino Club’s business interest. We conclude that the phrase in the notice of intent “to further the business” is impermissibly vague. As the State may amend its notice of intent, it must provide specific factual allegations as to how Hadland’s murder furthered the business interests of the Palomino Club if the State intends to pursue this factual allegation at trial.
Although the notice of intent fails to clearly explain the factual allegations supporting the pecuniary gain aggravator, we conclude that the State should be allowed to amend the notice of intent to
Further, allowing the State to amend the notice of intent under the particular facts of this case would not contravene any statute or decision by this court. We have published only two decisions in which we struck notices of intent to seek the death penalty that were not compliant with SCR 250(4)(c) — Redeker v. District Court
In Redeker, this court concluded that the State’s notice of intent to seek the death penalty failed to allege with specificity any facts showing that Redeker had been convicted previously of a felony involving the use or threat of violence to the person of another.
Redeker is distinguishable from the instant case. In Redeker, this court concluded that the notice of intent compelled Redeker to speculate about facts not included in the notice of intent that would have established that his second-degree arson conviction was a violent felony.
We reject any interpretation of Redeker as suggesting that the State can never amend a notice of intent to cure any deficiencies in the factual allegations supporting an aggravator where, as here, they are not pleaded in a clear and comprehensible manner. Therefore, we expressly limit the holding in Redeker to the particular facts and circumstances in that case.
The other published decision in which this court struck a notice of intent based on SCR 250(4)(c) is State v. District Court (Marshall), where we upheld a district court’s decision to deny the State’s motion to file untimely notices of intent to seek the death penalty against two defendants.
To the extent Hidalgo contends that allowing the State to amend the notice of intent would render the notice untimely without a showing of good cause, we find that argument unpersuasive under the particular facts of this case. SCR 250(4)(d) provides that “[u]pon a showing of good cause, the district court may grant a motion to file a late notice of intent to seek the death penalty or of an amended notice alleging additional aggravating circumstances.” (Emphasis added.) Here, the State is not seeking to amend its notice of intent to allege new aggravators but rather to clarify the factual allegations supporting the pecuniary gain aggravator, which was alleged in a timely notice of intent. This circumstance sets Hidalgo’s case apart from the situation in Marshall, where the State simply neglected to follow SCR 250(4)(c)’s timing requirement and failed to demonstrate good cause for the delay.
Although the notice of intent is deficient under SCR 250(4)(c) to the extent that it fails to provide a clear, comprehensible expression
CONCLUSION
For the reasons stated above, we grant this petition in part. The clerk of this court shall issue a writ of mandamus instructing the district court to strike the two aggravating circumstances alleging solicitation to commit murder as prior violent felonies pursuant to NRS 200.033(2) and to allow the State to amend its notice of intent to seek the death penalty to declare the factual allegations supporting the pecuniary gain aggravator in a clear, comprehensible manner and to further explain its allegation that the victim’s murder served to further the business interests of the Palomino Club.
Hidalgo v. Dist. Ct., 123 Nev._, 173 P.3d 1191 (2007) (opinion withdrawn February 21, 2008).
In response to the State’s argument that counsel for petitioner Luis Hidalgo IH has an impermissible conflict of interest due to his representation of Hidalgo’s father in an unrelated matter, Hidalgo has moved this court to file certain exhibits under seal. Cause appearing, we grant the motion. Based on the affidavits submitted by Hidalgo, his counsel, and Hidalgo’s father, we perceive no current or potential conflict sufficient to warrant counsel’s disqualification at this time. See RPC 1.7. The State may renew its motion below in the future, however, if such a conflict arises.
NRS 200.033(2) permits the State to allege as an aggravating circumstance any felony involving the use or threat of violence that is charged in the same indictment or information as the first-degree murder count. Specifically, the statute provides that “[fjor the purposes of this subsection, a person shall be deemed to have been convicted at the time the jury verdict of guilt is rendered.”
Anabel Espindola was charged with the same offenses and given notice of the same aggravators as Hidalgo. On April 9, 2008, we granted Espindola’s motion to dismiss her from this original proceeding because she had reached a plea agreement with the State.
Redeker v. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006); see also NRS 34.160.
NRS 34.170; Redeker, 122 Nev. at 167, 127 P.3d at 522.
Redeker, 122 Nev. at 167, 127 P.3d at 522.
108 Nev. 200, 202, 826 P.2d 952, 954 (1992) (quoting People v. Miley, 204 Cal. Rptr. 347, 352 (Ct. App. 1984)).
636 So. 2d 1312, 1314 (Fla. 1994).
864 So. 2d 1151, 1152-53 (Fla. Dist. Ct. App. 2003) (citations omitted).
956 P.2d 499, 502 (Ariz. 1998).
Id. (quoting Ariz. Rev. Stat. § 13-703(F)(2)).
Id.
See Redeker v. Dist. Ct., 122 Nev. 164, 172, 127 P.3d 520, 525 (2006).
636 So. 2d at 1314; Fla. Stat. Ann. § 777.04(2), (4)(b) (West 1991). Nevada’s solicitation statute similarly particularizes solicitation to commit murder: NRS 199.500(2) makes solicitation of murder a felony, while NRS 199.500(1) provides that solicitation of kidnapping or arson is a gross misdemeanor.
956 P.2d at 503.
Woodruff v. State, 846 P.2d 1124, 1144 (Okla. Crim. App. 1993).
People v. Edelbacker, 766 P.2d 1, 8, 15 (Cal. 1989).
121 Nev. 554, 119 P.3d 107 (2005).
Redeker v. Dist. Ct., 122 Nev. 164, 168-69, 127 P.3d 520, 523 (2006).
State v. Dist. Ct. (Marshall), 116 Nev. 953, 959, 11 P.3d 1209, 1212 (2000).
Laney v. State, 86 Nev. 173, 178, 466 P.2d 666, 669 (1970); see Sheriff v. Levinson, 95 Nev. 436, 437, 596 P.2d 232, 233 (1979) (“[T]he prosecution is required to make a definite statement of facts constituting the offense in order to adequately notify the accused of the charges and to prevent the prosecution from circumventing the notice requirement by changing theories of the case.”).
122 Nev. 164, 127 P.3d 520 (2006).
116 Nev. 953, 11 P.3d 1209 (2000).
122 Nev. at 168, 127 P.3d at 523.
Id.
Id. at 169, 127 P.3d at 523.
Id.
Id. at 168-69, 127 P.3d at 523.
Id. at 169, 127 P.3d at 523.
116 Nev. 953, 968, 11 P.3d 1209, 1218 (2000).
Id. at 964, 11 P.3d at 1215.
Reference
- Full Case Name
- LUIS HIDALGO, III, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE DONALD M. MOSLEY, District Judge, Respondents, and THE STATE OF NEVADA, Real Party in Interest
- Cited By
- 25 cases
- Status
- Published