Haberstroh v. State

782 P.2d 1343, 105 Nev. 739, 1989 Nev. LEXIS 298

• Court: Nevada Supreme Court
• Decided: November 27, 1989
• Docket: 18617
• Status: Published

Opinions

OPINION

By the Court,

Steffen, J.:

On July 21, 1986, Richard Lee Haberstroh abducted a woman from a grocery store parking lot. Haberstroh then took his victim into the desert outside Las Vegas, where he robbed her, sexually assaulted her, and, finally, strangled her. The strangulation caused irreparable brain damage, which ultimately resulted in the woman’s death.

A jury found Haberstroh guilty of the murder and sentenced him to death. The jury also convicted Haberstroh of first-degree kidnapping, sexual assault, and robbery, each with the use of a deadly weapon. Haberstroh received four consecutive life sentences without possibility of parole for the kidnapping and sexual assault convictions and two consecutive fifteen-year sentences for the robbery conviction.

Haberstroh now asserts that certain of the prosecutor’s arguments during the sentencing phase of his trial constituted prosecutorial misconduct and warrant a new penalty hearing. We disagree.

In his final argument to the jury, the prosecutor argued that in light of Haberstroh’s past conduct in prisons, the imposition of the death penalty was the only way to be sure Haberstroh would not kill again. In support of his argument, the prosecutor relied on evidence present in the penalty hearing which indicated that Haberstroh, while serving a term in a federal prison, masterminded an escape plot that included the taking of hostages at gunpoint. The prosecutor’s evidence further revealed that Haberstroh, while serving yet another prison term, had fashioned a deadly weapon out of a piece of metal and used it to threaten the life of a prison guard in another escape attempt. The prosecutor finally pointed to evidence showing that Haberstroh had acquired and concealed a piece of angle iron in the Clark County jail just two days before his penalty hearing in this case.

When there is evidence, as in this case, of a defendant’s past conduct which supports a reasonable inference that even incarceration will not deter the defendant from endangering others’ lives, a prosecutor is entitled to ask the jury to draw that inference. See State v. Green, 81 Nev. 173, 176, 400 P.2d 766, 767 (1965). The prosecutor is further entitled to ask jurors to consider that inference when deciding whether to impose the death penalty. See Skipper v. South Carolina, 476 U.S. 1, 5 (1986). “Consideration of a defendant’s past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing.” Id.

This is not a case in which the prosecutor made purely speculative predictions as to a defendant’s improbable rehabilitation and future propensity to kill in an attempt to persuade the jury to impose the death penalty. See Flanagan v. State, 104 Nev. 105, 754 P.2d 836 (1988); Collier v. State, 101 Nev. 473, 705 P.2d 1126 (1985). Here, the evidence of the defendant’s past conduct in prisons and jails justified the prosecutor’s argument that unless executed, Haberstroh may continue to pose a threat to the lives of others. The prosecutor did not, in this instance, violate the dictates of Collier.

Haberstroh argues that the prosecutor also committed misconduct when he referred to the jury as “the conscience of the community.” To the extent the comment can be considered misconduct, the court’s admonition that the jury disregard the statement cured any possible prejudice. See Snow v. State, 101 Nev. 439, 447, 705 P.2d 632, 638 (1985). Therefore, we conclude that Haberstroh received a fair penalty hearing.

Haberstroh also raises a number of contentions concerning the fairness of the guilt phase of his trial. We have carefully considered these contentions and conclude that each lacks merit. Accordingly, we affirm each of Haberstroh’s convictions and the corresponding sentences.

Young, C. J., Mowbray and Rose, JJ., concur.