Wilson v. State
Wilson v. State
Opinion of the Court
OPINION
By the Court,
Appellant Edward Thomas Wilson pleaded guilty to first-degree murder and related felonies in the killing of an undercover Reno police officer in 1979. A three-judge panel sentenced Wilson to death for the murder. In this appeal from the denial of Wilson’s third state habeas petition, we address whether our decision in McConnell v. State (McConnell I), 120 Nev. 1043, 102 P.3d 606 (2004), invalidates two of the aggravating circumstances used to make Wilson eligible for the death penalty. In particular, we consider whether McConnell I precludes the State from relying on the same predicate felony to support felony murder and felony aggravating circumstances when the defendant has pleaded guilty to first-degree murder based on both premeditated and deliberate murder and felony murder. We conclude that McConnell I does not preclude the State from using the same predicate felony in those circumstances. Because we conclude that this and Wilson’s remaining claims do not warrant relief, we affirm the district court’s order.
FACTS
The crime and the trial
In the afternoon of June 24, 1979, Reno Police Officer James Hoff met with Wilson while posing as a narcotics dealer. Hoff and Wilson discussed a drug transaction in which Wilson agreed to sell Hoff ten ounces of cocaine for $1,600. During the meeting, Wil
Unbeknownst to Hoff, Wilson and John Olausen had been plotting to make a drug deal and kill the dealer. After Wilson met with Hoff, he and Olausen enlisted the help of David Lani and Fred Stites in executing the plan, and the four men discussed how and where to kill the drug dealer. The group settled on a location near a convalescent center in Reno. Once at the convalescent center, the four men cut and gathered bushes to conceal themselves. Wilson left the area to contact Hoff while the other three remained hidden in the bushes, each armed with a knife.
Meanwhile, Hoff was making his own preparations for the meeting with Wilson. He obtained $1,600 in $100 bills which were photocopied and their serial numbers recorded. He and another officer installed a listening device on Hoffs vehicle. Numerous surveillance teams were dispatched throughout the area to observe the transaction.
Shortly after midnight on June 25, Hoff met Wilson at a motel in Reno. After the rendezvous, Hoff and Wilson drove around Reno until approximately 1:30 a.m., at which time Hoff parked the car in a wooded area near the convalescent center. Unfortunately, shortly after Hoff met Wilson, the listening device on Hoff’s vehicle malfunctioned and visual contacts were lost on several occasions throughout the night.
As Hoff and Wilson got out of the car, Lani jumped out of the bushes and stabbed Hoff in the back. The others emerged from their hiding places and together stabbed Hoff repeatedly. About 15 minutes later, the vehicle left the wooded area at a high rate of speed and the surveillance teams lost contact with it near Verdi, Nevada. The vehicle was found much later, unoccupied and stained with blood. After that discovery, the police searched for Hoff and the suspects. They eventually found Wilson and Olausen later that afternoon, sleeping in some bushes alongside a trailer park. On the ground between them, police officers found a vest containing approximately $1,600. Fourteen of the sixteen $100 bills in the vest matched the prerecorded buy money. Wilson and Olausen were immediately placed under arrest. A few hours later, officers found Hoffs body buried under a pile of rocks in a drainage ditch in Verdi. Stites and Lani were arrested later in Oklahoma.
The State charged Wilson with first-degree murder, alleging that the killing was willful, deliberate, and premeditated and/or was committed in the perpetration or attempted perpetration of kidnapping and/or robbery. The State also charged Wilson with kidnapping and robbery, both with the use of a deadly weapon. Wilson pleaded guilty to all of the charges. A three-judge panel found three circumstances aggravated the murder — (1) the murder occurred during the commission of a robbery, (2) the murder oc
Post-conviction proceedings
Wilson filed two state post-conviction petitions, which were denied in the district court. This court upheld the district court decisions in both instances. Wilson v. State, 105 Nev. 110, 771 P.2d 583 (1989); Wilson v. State, Docket No. 29802 (Order Dismissing Appeal, April 9, 1998). On November 21, 2005, Wilson filed his third post-conviction petition, raising 29 claims for relief. The State sought to dismiss the petition on the ground that it was procedurally barred. The district court agreed, concluding that Wilson’s claims were procedurally defaulted and that he failed to demonstrate good cause and prejudice. The district court further concluded that he did not make a colorable showing of actual innocence or a fundamental miscarriage of justice to avoid the procedural bars. This appeal followed.
DISCUSSION
In this opinion, we focus on Wilson’s challenge to the sentence based on our decision in McConnell I and take this opportunity to answer the corollary to a question left open after that decision: whether the use of a felony aggravator is precluded if the defendant pleads guilty to first-degree murder based on both a willful, deliberate, and premeditated killing and a killing committed during the perpetration of or attempted perpetration of the same felony. Before answering that question, we must address the procedural defaults that apply to Wilson’s petition- and resulted in the district court’s dismissal of the petition.
Because Wilson filed his petition approximately 22 years after this court issued its remittitur on direct appeal from the judgment of conviction and he had previously sought post-conviction relief, the petition was untimely under NRS 34.726(1) and successive under NRS 34.810(2). Therefore, the petition was procedurally barred absent a demonstration of good cause and prejudice. NRS 34.726(1); NRS 34.810(3). McConnell I applies retroactively, Bejarano v. State, 122 Nev. 1066, 1074-79, 146 P.3d 265, 271-74
In McConnell I, we held that it is “impermissible under the United States and Nevada Constitutions to base an aggravating cir
Wilson first suggests that he pleaded guilty solely to felony murder and therefore the State could not use the same underlying felonies as aggravating circumstances consistent with McConnell I. The record does not bear that out. Wilson pleaded guilty to the charge of first-degree murder, which included allegations that the killing was willful, deliberate, and premeditated and that it was committed in the perpetration or attempted perpetration of a felony. Relative to willful, deliberate, and premeditated murder, the district court advised Wilson during the plea canvass that one of the elements of murder was premeditation and asked Wilson what premeditation meant, to which he responded, “We preplanned it.’ ’ Wilson also acknowledged that premeditation included a specific intent to kill. Later, during the plea canvass, the prosecutor asked the district court to ensure that Wilson understood that he was pleading guilty to premeditated murder as well as felony murder. And defense counsel expressed to the district court that there was no objection to Wilson pleading guilty to premeditated murder. Considering the record as a whole, we conclude that Wilson pleaded guilty to premeditated and felony murder. This court reached the same conclusion on appeal from the judgment of conviction when we declined to reach the issue later addressed in McConnell / — whether a felony can be used as an aggravating circumstance where the defendant has been convicted of first-degree murder predicated on the felony-murder rule. Wilson v. State, 99 Nev. 362, 373 n.7, 664 P.2d 328, 335 n.7 (1983). We declined to reach that issue specifically because Wilson “pleaded guilty to first degree murder upon the theories of premeditation and deliberation, as well as robbery and kidnapping.” Id. at 373, 664 P.2d at 335.
Alternatively, Wilson argues that McConnell I precludes the use of the felony as an aggravator even if he pleaded guilty to premeditated murder as well as felony murder. He primarily focuses on the following language in McConnell I: ‘ ‘where the State bases a first-degree murder conviction in whole or part on felony murder, to seek a death sentence the State will have to prove an ag-gravator other than one based on the felony murder’s predicate felony.” 120 Nev. at 1069, 102 P.3d at 624 (emphasis added).
When read in the full context of the opinion, the language highlighted by Wilson does not support his argument. Following the
This case presents a corollary to the question that McConnell I left open as to a special verdict showing that the jury unanimously found that a murder was deliberate and premeditated and was felony murder: is use of a felony aggravator precluded if a defendant pleads guilty to first-degree murder based upon the theories of premeditation and deliberation as well as felony murder? We answered that question in the negative in Wilson’s appeal from the judgment of conviction, Wilson, 99 Nev. at 373-74, 664 P.2d at
Here, Wilson pleaded guilty to first-degree murder based on premeditated and deliberate murder and felony murder. As explained above, the plea was not limited to felony murder. His death eligibility therefore was permissibly based on the felony aggravating circumstances found by the sentencing panel. Accordingly, the district court did not err by dismissing this claim.
CONCLUSION
We hold that where a defendant pleads guilty to a charge of first-degree murder based on theories of premeditation and deliberation
We have considered Wilson’s challenges to the procedural default of his other claims and conclude that they lack merit and the district court did not err in denying the petition as untimely and successive under NRS 34.726 and NRS 34.810. Although Wilson suggests that the procedural default statutes cannot be applied to his petition because this court applies them inconsistently and in its discretion, we disagree for the reasons expressed in State v. District Court (Riker), 121 Nev. 225, 236, 112 P.3d 1070, 1077 (2005), and Pellegrini v. State, 117 Nev. 860, 886, 34 P.3d 519, 536 (2001). And to the extent that Wilson argues that his second post-conviction counsel’s alleged ineffective assistance provided good cause to excuse his procedural default, we disagree because Wilson was not entitled to the effective assistance of that counsel. See Crump v. Warden, 113 Nev. 293, 303, 934 P.2d 247, 253 (1997) (stating that “petitioner who has counsel appointed by statutory mandate is entitled to effective assistance of that counsel”).
We have also considered Wilson’s claims that failure to consider his petition on the merits would result in a fundamental miscarriage of justice and therefore this court should overlook the procedural default. As to his guilty plea, Wilson has not demonstrated that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him” even considering the evidence that trial counsel allegedly failed to uncover and the evidence allegedly withheld by the State. See Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotations omitted); U.S. v. Torres, 163 F.3d 909, 914 (5th Cir. 1999) (Dennis, J., concurring); Trotter v. State, 907 So. 2d 397, 401 (Miss. Ct. App. 2005). And as to the death penalty, even assuming that new mitigating evidence previously omitted due to ineffective assistance of trial counsel could provide a basis for an actual innocence claim, see Sawyer v. Whitley, 505 U.S. 333, 345-47 (1992), we are not convinced that Wilson demonstrated “by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found him death eligible,” Pellegrini, 117 Nev. at 887, 34 P.3d at 537. Nor are we convinced that he demonstrated actual innocence based on his allegation that the sentencing panel did not find that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt. See McConnell v. State (McConnell III), 125 Nev. 243, 254, 212 P.3d 307, 314-15 (2009).
We decline, however, to consider Wilson’s challenge to the validity of his guilty plea on various grounds related to our decision in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000) (prospectively rejecting Kazalyn instruction on premeditation), because this claim was not raised below, see State v. Powell, 122 Nev. 751, 756, 138 P.3d 453, 456 (2006) (observing that claims not raised below are generally barred from consideration on appeal). As a separate and independent basis for denying relief, Byford does not apply to this case because the conviction was final in 1985, long before Byford changed the law, see Nika v. State, 124 Nev. 1272, 1287, 198 P.3d 839, 849-50 (2008).
Wilson argues that the district court erred by dismissing his claim that he is actually innocent of the receiving-money aggravator, NRS 200.033(6), because that aggravator is based on the same underlying facts supporting the felony aggravator based on robbery. He recognizes that this court previously rejected the same challenge to this aggravator in his direct appeal from the judgment of conviction, Wilson v. State, 99 Nev. 362, 376-77, 664 P.2d 328, 337 (1983), but he urges this court to reconsider this determination in light of our subsequent decision in Lane v. State, 114 Nev. 299, 304, 956 P.2d 88, 91 (1998), that robbery and receiving-money aggravators are impermissibly du-plicative when based on the same facts. Lane was decided approximately 16 years after Wilson’s conviction was final. We have yet to decide whether that case recognized existing law or set forth a new rule, but we need not do so here. Even if the receiving-money aggravator is invalid, Wilson is not actually innocent of the death penalty because the felony aggravators based on robbery and kidnapping remain. Accordingly, the district court did not err by dismissing Wilson’s challenge to his death sentence on this ground.
Because Wilson failed to overcome the procedural default rules and did not demonstrate his actual innocence of the crimes or the death penalty, the district court did not err by dismissing the petition as procedurally barred, including the following claims: (1) the trial court violated Wilson’s due process rights by refusing to conduct a hearing on his presentence motion to withdraw his guilty plea; (2) the guilty pleas to kidnapping and robbery were the product of ineffective assistance of counsel and a deficient plea canvass; (3) trial counsel had a conflict of interest; (4) the conviction is invalid due to prose-cutorial vindictiveness; (5) the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), relating to five prosecution witnesses; (6) the admission of the codefendants’ statements during the penalty hearing violated the Confrontation Clause and Crawford v. Washington, 541 U.S. 36 (2004); (7) appellate and post-conviction counsel were ineffective; (8) inadequate state funding denied Wilson his right to effective assistance of counsel; (9) this court inadequately reviewed the evidence supporting the aggravators on direct, appeal from the judgment of conviction; (10) the sentence is disproportionate to those of his codefendants and was improperly imposed by a three-judge panel; (11) the trial judge was not impartial; and (12) the death penalty constitutes cruel and unusual punishment. We note that Wilson raised most of these claims in his second state post-conviction petition.
Reference
- Full Case Name
- EDWARD THOMAS WILSON v. THE STATE OF NEVADA
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- Published