A District Court jury sentenced a 37-year-old man to
death Wednesday for fatally stabbing the mother of his three children.
It was the second time a jury determined that James
Chappell should be executed for the 1995 slaying of his girlfriend, 26-year-old
Deborah Panos, in her North Lamb Boulevard trailer.
The state Supreme Court brought the case back to life
in April after finding Chappell had ineffective counsel during the
penalty hearing of his first trial and striking most of the aggravating
circumstances prosecutors had originally brought in seeking a death
verdict. His original conviction on the first-degree murder charge stood.
"I'm profoundly and sincerely sorry and remorseful
about the whole situation," Chappell told the court Tuesday.
Deputy Special Public Defender Clark Patrick said he
was disappointed with the verdict. He hoped the circumstances of
Chappell's childhood would sway jurors toward a life term.
Chappell's mother died, his father was out of the
picture, and he was raised by an abusive grandmother in a poor Michigan
neighborhood, the defense said. He became addicted to drugs at 13.
"The house he grew up in is condemned. I just think
his circumstances would have warranted something" besides the death
penalty, Patrick said.
Prosecutors Chris Owens and Pam Weckerly argued that
Chappell had raped Panos, who was trying to leave him before he killed
her, and that the sexual assault warranted the most severe sentence.
Chappell was released from jail in August 1995 after
being arrested weeks earlier for holding a knife to Panos' throat,
prosecutors said.
He was supposed to report to a drug treatment center
but instead walked to Panos' trailer, they said. He ransacked her home
and found a letter from another lover.
When Panos returned home and found him there that day,
he raped and beat her and stabbed her more than a dozen times.
Panos' family members were moved to tears during
testimony in the new sentencing phase. Her mother, Norma Penfield, 70,
has been raising the three children, who are now teenagers, in Tucson,
Ariz.
"One sad thing is you can't be a grandmother. You
have to be the parent," she said.
This past week, she and her sister, Carol Monson,
have relived a nightmare, they said.
They held hands and cried as the jury read the new
verdict, and they embraced Owens after the hearing.
Monson said they waited last year to hear from the
state about Chappell's execution date.
"Instead what do we hear: He's getting a new hearing.
I was just blown apart," she said. "You want to believe in the law and
in the legal system. It just seems like the criminals get second chances
and third chances, but how many chances did Debbie get?"
Chappell and Panos had a tumultuous 10-year
relationship. He was arrested numerous times for beating her both in
Tucson and Las Vegas, according to witnesses.
Owens said that she supported him and the children by
sometimes working three jobs, but that he used her money, as well as
money he made by selling the children's clothes, to buy drugs.
Appeal from a judgment of conviction pursuant to a
jury verdict of one count each of burglary, robbery with the use of a
deadly weapon, and first-degree murder with the use of a deadly weapon,
and from a sentence of death. Eighth Judicial District Court, Clark
County; A. William Maupin, Judge.
Affirmed .
Morgan D. Harris, Public Defender, Michael L.
Miller, Deputy Public Defender, Howard S. Brooks, Deputy Public
Defender, Clark County, for .
Frankie Sue Del Papa, Attorney General, Carson City;
Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy
District Attorney, Abbi Silver, Deputy District Attorney, Clark County,
for .
O P I N I O N
On the morning of August 31, 1995, James Montell
Chappell was mistakenly released from prison in Las Vegas where he had
been serving time since June 1995 for domestic battery.
Upon his release, Chappell went to the Ballerina
Mobile Home Park in Las Vegas where his ex-girlfriend, Deborah Panos,
lived with their three children. Chappell entered Panos' trailer by
climbing through the window. Panos was home alone, and she and
Chappell engaged in sexual intercourse. Sometime later that morning,
Chappell repeatedly stabbed Panos with a kitchen knife, killing her.
Chappell then left the trailer park in Panos' car and drove to a
nearby housing complex.
The State filed an information on October 11, 1995,
charging Chappell with one count of burglary, one count of robbery
with the use of a deadly weapon, and one count of murder with the use
of a deadly weapon. On November 8, 1995, the State filed a notice of
intent to seek the death penalty.
The notice listed four aggravating circumstances:
(1) the murder was committed during the commission of or an attempt to
commit any robbery; (2) the murder was committed during the commission
of or an attempt to commit any burglary and/or home invasion; (3) the
murder was committed during the commission of or an attempt to commit
any sexual assault; and (4) the murder involved torture or depravity
of mind.
Prior to trial, Chappell offered to stipulate that
he (1) entered Panos' trailer home through a window, (2) engaged in
sexual intercourse with Panos, (3) caused Panos' death by stabbing her
with a kitchen knife, and (4) was jealous of Panos giving and
receiving attention from other men. The State accepted the
stipulations, and the case proceeded to trial on October 7, 1996.
Chappell took the witness stand on his own behalf
and testified that he considered the trailer to be his home and that
he had entered through the trailer's window because he had lost his
key and did not know that Panos was at home. He testified that Panos
greeted him as he entered the trailer and that they had consensual
sexual intercourse. Chappell testified that he left with Panos to pick
up their children from day care and discovered in the car a love
letter addressed to Panos. Chappell, enraged, dragged Panos back into
the trailer where he stabbed her to death. Chappell argued that his
actions were the result of a jealous rage.
The jury convicted Chappell of all charges.
Following a penalty hearing, the jury returned a sentence of death on
the murder charge, finding two mitigating circumstances -- murder
committed while Chappell was under the influence of extreme mental or
emotional disturbance and "any other mitigating circumstances" -- and
all four alleged aggravating circumstances.
The district court sentenced Chappell to a minimum
of forty-eight months and a maximum of 120 months for the burglary; a
minimum of seventy-two months and a maximum of 180 months for robbery,
plus an equal and consecutive sentence for the use of a deadly weapon;
and death for the count of murder in the first degree with the use of
a deadly weapon. The district court ordered all counts to run
consecutively. Chappell timely appealed his conviction and sentence of
death.
DISCUSSION
Admission of evidence of prior bad acts
Chappell contends that the district court abused
its discretion by admitting evidence of prior acts of theft without
holding a Petrocelli 1 hearing. During the State's
case-in-chief, LaDonna Jackson testified that Chappell was known as a
"regulator" 2 and that, on one occasion, he sold his
children's diapers for drug money.
Ordinarily, in order for this court to review a
district court's decision to admit evidence of prior bad acts, a
Petrocelli hearing must have been conducted on the record.
Armstrong v. State, 110 Nev. 1322, 1324, 885 P.2d 600, 600-01 (1994).
However, where the district court fails to hold a proper hearing on
the record, automatic reversal is not mandated where "(1) the record
is sufficient for this court to determine that the evidence is
admissible under the test for admissibility of bad acts evidence . . .
; or (2) where the results would have been the same if the trial court
had not admitted the evidence." Qualls v. State, 114 Nev. ____, ____,
961 P.2d 765, 767 (1998).
The district court in the instant case did not hold
a Petrocelli hearing either on or off the record. Under the
circumstances, we conclude that the record is not sufficient for this
court to determine whether the evidence was admissible under the test
for admissibility of prior bad acts evidence. In light of the
overwhelming evidence of guilt in this case, however, we conclude that
had the district court not admitted the evidence, the results would
have been the same. See Big Pond v. State, 101 Nev. 1, 3, 692
P.2d 1288, 1289 (1985) (when deciding whether an error is harmless or
prejudicial, the following considerations are relevant: "whether the
issue of innocence or guilt is close, the quantity and character of
the error, and the gravity of the crime charged"); see also
Bradley v. State, 109 Nev. 1090, 1093, 864 P.2d 1272, 1274 (1993).
Accordingly, we hold that the district court's failure to conduct a
Petrocelli hearing before admitting this evidence amounted to
harmless error, and does not, therefore, require reversal.
Issues arising out of alleged aggravating
circumstances
Chappell argues that insufficient evidence exists
to support the jury's finding of the four alleged aggravating
circumstances. The first three aggravating circumstances depend on
whether Chappell killed Panos during the commission of or an attempt
to commit robbery, burglary and/or home invasion, and sexual assault.
Chappell's challenge to each of these aggravators comes down to a
challenge of the sufficiency of the evidence supporting each of the "aggravating"
offenses.
On appeal, the standard of review for sufficiency
of the evidence is "whether the jury, acting reasonably, could have
been convinced of the defendant's guilt beyond a reasonable doubt."
Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992). Where
there is sufficient evidence in the record to support the verdict, it
will not be overturned on appeal. Id. We conclude that there is
sufficient evidence to support the aggravating circumstances for
robbery, burglary and sexual assault. We further conclude that the
evidence does not support the aggravating circumstance of torture or
depravity of mind.
Robbery
Chappell contends that the evidence shows that he
took Panos' car as an afterthought and, therefore, cannot be guilty of
robbery. The State argues that a rational trier of fact could find
that Chappell took Panos' social security card and car through the use
of actual violence or the threat of violence. Under Nevada's criminal
law, robbery is defined as
the unlawful taking of personal property
from the person of another, or in his presence, against his
will, by means of force or violence or fear of injury,
immediate or future, to his person or property . . . . A
taking is by means of force or fear if force or fear is used
to: (a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the
taking; or
(c) Facilitate escape.
The degree of force used is immaterial if
it is used to compel acquiescence to the taking of or escaping
with the property. A taking constitutes robbery whenever it
appears that, although the taking was fully completed without
the knowledge of the person from whom taken, such knowledge
was prevented by the use of force or fear.
The statute does not require that the force or
violence be committed with the specific intent to commit robbery.
This court has held that in robbery cases it is
irrelevant when the intent to steal the property is formed. In Norman
v. Sheriff, 92 Nev. 695, 697, 558 P.2d 541, 542 (1976), this court
stated:
[A]lthough the acts of violence and
intimidation preceded the actual taking of the property and
may have been primarily intended for another purpose, it is
enough, to support the charges in the indictment, that
appellants, taking advantage of the terrifying situation they
created, fled with [the victim's] property.
This position was affirmed in Sheriff v. Jefferson,
98 Nev. 392, 394, 649 P.2d 1365, 1366-67 (1982), and Patterson v.
Sheriff, 93 Nev. 238, 239, 562 P.2d 1134, 1135 (1977). See also
State v. Myers, 640 P.2d 1245 (Kan. 1982) (holding that where
aggravated robbery requires taking by force or threat of force while
armed, it is sufficient that defendant shot victim and then returned
three hours later to take victim's wallet, as there was a continuous
chain of events and the prior force made it possible to take the
property without resistance); State v. Mason, 403 So. 2d 701 (La.
1981) (holding that acts of violence need not be for the purpose of
taking property and that it is sufficient that the taking of a purse
was accomplished as a result of earlier acts of pushing victim onto
bed and pulling her clothes).
Accordingly, we hold that there is sufficient
evidence to support the conviction of robbery and the finding of
robbery as an aggravating circumstance.
Burglary
Chappell argues that the State adduced insufficient
evidence to prove that he committed a burglary. We disagree. NRS
205.060(1) provides that a person is guilty of burglary when he "by
day or night, enters any . . . semitrailer or house trailer . . . with
the intent to commit grand or petit larceny, assault or battery on any
person or any felony." At trial, the State introduced evidence that
Panos wanted to end her relationship with Chappell, that Chappell had
threatened and abused Panos in the past, and that Panos did not
communicate with Chappell while he was in jail. Moreover, there was
testimony that the trailer appeared ransacked, and that Panos' social
security card and car keys were found in Chappell's possession.
Accordingly, we conclude that there is sufficient evidence to support
the conviction of burglary and the finding by the jury of burglary as
an aggravator.
Sexual assault
Chappell argues that the State failed to prove
beyond a reasonable doubt that the sexual encounter between Chappell
and Panos was nonconsensual. We do not agree. The jury was instructed
to find sexual assault if Chappell engaged in sexual intercourse with
Panos "against [her] will" or under conditions in which Chappell knew
or should have known that Panos was "mentally and emotionally
incapable of resisting." The evidence at trial and during the penalty
hearing showed that Panos and Chappell had an abusive relationship,
that Panos had ended her relationship with Chappell, that Chappell was
extremely jealous of Panos' relationships with other men, and that
Panos was involved with another man at the time of the killing. We
conclude that a rational trier of fact could have concluded that
either Panos would not have consented to sexual intercourse under
these circumstances or was mentally or emotionally incapable of
resisting Chappell's advances, and that Chappell therefore committed
sexual assault. Consequently, the evidence supports the jury's finding
of sexual assault as an aggravating circumstance.
Torture or depravity of mind
Chappell argues that the circumstances of Panos'
death do not rise to the level necessary to establish torture or
depravity of mind. We agree. The depravity of mind aggravator applies
in capital cases if "torture, mutilation or other serious and depraved
physical abuse beyond the act of killing itself" is shown. Robins v.
State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990); NRS 200.033(8).
3
In the present case, the jury was instructed that
the elements of murder by torture are that "(1) the act or acts which
caused the death must involve a high degree of probability of death,
and (2) the defendant must commit such act or acts with the intent to
cause cruel pain and suffering for the purpose of revenge, persuasion
or for any other sadistic purpose." 4 Panos died as a
result of multiple stab wounds; thus, the first element is satisfied.
The second element is not as easily met under the facts of this case.
The State argues that evidence of torture may be
found in the following: Panos was severely beaten by Chappell, there
were numerous bruises and abrasions on Panos' face, Panos was stabbed
in the groin area and chest, Panos was stabbed thirteen times, and
four of the stabs were of such force as to have penetrated the spinal
cord in Panos' neck. We conclude that there is no evidence that
Chappell stabbed Panos with any intention other than to deprive her of
life. No evidence exists that Chappell intended to cause Panos cruel
suffering for the purposes of revenge, persuasion, or other sadistic
pleasure. Nor does Chappell's act of stabbing Panos thirteen times
rise to the level of torture. Accordingly, we hold that the record
does not contain sufficient evidence to support the aggravating
circumstance of depravity of mind and torture.
Invalidating an aggravating circumstance
Invalidating an aggravating circumstance does not
automatically require this court to vacate a death sentence and remand
for new proceedings before a jury. See Witter v. State, 112 Nev.
908, 929, 921 P.2d 886, 900 (1996); see also Canape v. State,
109 Nev. 864, 881-83, 859 P.2d 1023, 1034-35 (1993). Where at least
one other aggravating circumstance exists, this court may either
reweigh the aggravating circumstances against the mitigating evidence
or conduct a harmless error analysis. Witter , 112 Nev. at
929-30, 921 P.2d at 900.
In the present case, the jury designated as
mitigating circumstances (1) that the murder was committed while the
defendant was under the influence of extreme mental or emotional
disturbance, and (2) any other mitigating circumstances. We conclude
that the remaining three aggravators, robbery, burglary and sexual
assault, clearly outweigh the mitigating evidence presented by
Chappell. We therefore conclude that Chappell's death sentence was
proper.
Mandatory review of propriety of death penalty
NRS 177.055(2) 5 requires this court to
review every death penalty sentence. Pursuant to the statutory
requirement, and in addition to the contentions raised by Chappell and
addressed above, we have determined that the aggravating circumstances
of robbery, burglary and sexual assault, found by the jury, are
supported by sufficient evidence. Moreover, there is no evidence in
the record indicating that Chappell's death sentence was imposed under
the influence of passion, prejudice or any arbitrary factor. Lastly,
we have concluded that the death sentence Chappell received was not
excessive considering the seriousness of his crimes and Chappell as a
person.
Additional issues raised on appeal
Chappell further contends that: (1) the State's use
of peremptory challenges to excuse two African-American jurors from
the jury pool was discriminatory; (2) the district court erred in
admitting hearsay statements; (3) the district court erred by denying
Chappell's motion to strike the notice of intent to seek the death
penalty; (4) the State improperly appealed to the jury for vengeance
during the penalty phase; (5) cumulative error denied Chappell a fair
hearing; and (6) victim impact testimony denied Chappell a fair
penalty hearing. We have reviewed each of these issues and conclude
that they lack merit.
CONCLUSION
For the foregoing reasons, we affirm the judgment
of conviction for robbery, burglary and first-degree murder and the
sentence of death. 6 7
FOOTNOTES
1 See Petrocelli v. State, 101 Nev.
46, 692 P.2d 503 (1985).
2 Jackson testified that a "regulator" is a
person who steals items from a store and then resells those items for
money or drugs.
3 NRS 200.033(8) was amended in 1995 deleting
the language of "depravity of mind." 1995 Nev. Stat., ch. 467, �� 1-3,
at 1490-91. In the present case, the murder was committed before
October 1, 1995, thus, the previous version of NRS 200.033(8) applies.
Id.
4 These instructions were approved by this
court in Deutscher v. State, 95 Nev. 669, 677 n.5, 601 P.2d 407, 413
n.5 (1979); see NRS 200.030(1)(a) (defining first-degree murder
by torture as murder "[p]erpetrated by means of . . . torture").
5 NRS 177.055(2) provides:
2. Whether or not the defendant or his
counsel affirmatively waives the appeal, the sentence must be
reviewed on the record by the supreme court, which shall
consider, in a single proceeding if an appeal is taken:
(a) Any error enumerated by way of appeal;
(b) Whether the evidence supports the
finding of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was
imposed under the influence of passion, prejudice or any
arbitrary factor; and
(d) Whether the sentence of death is
excessive, considering both the crime and the defendant.
6 The Honorable Charles E. Springer, Chief
Justice, voluntarily recused himself from participation in the
decision of this appeal.
7 The Honorable A. William Maupin, Justice,
voluntarily recused himself from participation in the decision of this
appeal.
