Nevada Supreme Court Reports

SUMMERS v. STATE, 122 Nev. Adv. Op. No. 112, 45683
NEVADA, Respondent. No. 45683. Supreme Court of Nevada.
December 28, 2006.

Appeal from a judgment of conviction, pursuant to a jury
verdict, of first-degree murder with the use of a deadly
weapon, attempted murder with the use of a deadly weapon,
and assault with the use of a deadly weapon, and from
sentences of life in prison without the possibility of
parole after a capital penalty hearing. Eighth Judicial
District Court, Clark County; Stewart L. Bell, Judge.


David M. Schieck, Special Public Defender, and Lee
Elizabeth McMahon, Deputy Special Public Defender, Clark
County, for Appellant.

George Chanos, Attorney General, Carson City; David J.
Roger, District Attorney, and James Tufteland and Steven S.
Owens, Chief Deputy District Attorneys, Clark County, for



By the Court, HARDESTY, J.

We primarily consider in this appeal whether the
Confrontation Clause of the Sixth Amendment to the United

Constitution and the United States Supreme Court’s holding
in Crawford v. Washington[fn1] apply to evidence admitted
during a capital penalty hearing. We conclude that they do
not apply. We conclude that this issue, along with the
others appellant Charles Summers raises on appeal, does not
warrant reversal of his conviction and sentence. Therefore,
we affirm.


Guilt phase

Summers was an illegal drug dealer. Sometime in 2003, he
entered into an informal agreement with Frederick Ameen, an
addict who owed him money. Summers agreed to provide Ameen
with drugs to sell, primarily “crack” cocaine, and to pay
for a motel room from which he could sell the drugs; Ameen
was to give Summers the profits from the sales.

On the night of December 28 and early morning of December
29, 2003, Ameen and his associate Albert Paige were in a
room at the La Palm Motel in Las Vegas that Summers had
rented for Ameen to sell illegal drugs in accordance with
their agreement. Summers warned Ameen that only certain
people were to be allowed in the motel room. That night,
Ameen and Paige were in the room smoking crack cocaine with
three other people, one of whom was Donna Thomas, a
prostitute and friend of Ameen. When Summers later arrived
accompanied by Andrew Bowman, he was upset about the number
of people in the room. Ameen told everyone to leave; Paige
and Thomas stayed behind.

Bowman briefly left the motel room, but he soon returned
and handed Summers a .38 caliber handgun.[fn2] Summers
stood in front of Ameen and Thomas, who were sitting on a
bed. Paige was sitting at a small table, and Bowman stood
by the door. Summers put on a small glove and resituated
the handgun, which was in the pouch of his sweater. Summers
told Paige that if he wanted to kill him that he would have,
but that Paige was playing him “for some type of fool.”

Summers pulled out the handgun, pointed it at Thomas, and
asked Ameen who she was. Ameen explained to Summers that
Thomas was a friend, that he had told Thomas about Summers,
and that he had instructed her to let Summers enter the
motel room. Summers asked Thomas if she knew who he was.
Thomas replied in the negative. Ameen reminded Thomas that
he had previously told her about Summers. Thomas began to
speak when Summers shot her.

Summers then pointed the handgun directly at Paige and
pulled the trigger. But the handgun misfired. Summers then
pointed the handgun at Ameen, but Ameen did not see Summers
pull the trigger. Summers and Bowman then left the room.
Thomas later died from the gunshot wound.

Summers was arrested for the incident and charged with
several crimes. The State filed a notice of intent to seek
a death sentence. The guilt phase of Summers’s jury trial
began on March 28, 2005. Summers contended in his defense
that it was Ameen who shot Thomas, not him. To support this
theory, Summers called a former gang member incarcerated at
the Lovelock Correctional Center, Terrence Lee Collins, who
testified that he had previously purchased crack cocaine
from Summers and that Ameen once confessed to him that he
shot Thomas. He also testified that Ameen and Paige had
devised a theory to blame Thomas’s murder on Summers.
Summers also presented evidence that an anonymous tip to the
police blamed Thomas’s murder on another man and identified
Ameen as an accomplice to the crime.

After a four-day trial, the jury found Summers guilty of
the first-degree murder of Thomas with the use of a deadly
weapon, the attempted murder of Paige with the use of a
deadly weapon, and of assaulting Ameen with the use of a
deadly weapon. Penalty hearing

Prior to the penalty hearing, Summers moved to bifurcate
the hearing into eligibility and selection phases. The
district court denied the motion without explanation.

During the one-day penalty hearing, the State first
presented victim-impact evidence from Thomas’s sister and
father. They testified that Thomas was the mother of three
children, two girls and a boy, and had worked hard to
support them before she moved to Las Vegas and “got caught
up in life.”

The State then presented numerous witnesses who testified
about Summers’s juvenile and adult criminal history while
both in and out of custody, as well as exhibits containing
approximately 835 pages of documents regarding that
history. These documents included: Las Vegas Metropolitan
Police Department (LVMPD) records and arrest reports; a
1996 judgment of conviction for robbery and possession of a
stolen vehicle; juvenile and family court records; LVMPD
gang unit investigation cards; and Clark County Detention
Center and Nevada Department of Correction (NDOC) records,
which included inmate disciplinary reports.

LVMPD Officer Patrick Rooney testified that Summers was
arrested as a juvenile in 1992 for hitting a woman in the
head with a bottle. LVMPD Detective Patrick Paorns
testified that Summers was also arrested that year for his
participation in a carjacking with the use of a deadly
weapon. LVMPD Officer Brian Morse testified that Summers was
arrested three years later in 1995 as a juvenile for
robbery — stealing a woman’s purse — and
possession of a stolen vehicle. LVMPD Officer Timothy
Schoening testified that Summers was also arrested that year
for beating a man with a bottle. LVMPD Officer Clayton
Shanor testified about Summers’s disciplinary problems
while incarcerated, including fighting and verbal

LVMPD Officer Andrew Pennucci testified that he stopped
Summers in 2003 for jaywalking. During the stop, Summers
turned away from Officer Pennucci and reached beneath his
jacket into his waistband. Officer Pennucci testified that
he ordered Summers to stop, but Summers did not comply.
Officer Pennucci drew his handgun, pointed it at Summers,
and ordered Summers to take his hand from his waistband.
Summers complied and said, “Okay. Okay. I have a gun.”
Officer Pennucci seized a loaded .22 caliber semiautomatic
handgun with a bullet in the chamber from Summers. Summers
was arrested for the incident.

Summers’s former juvenile probation officer, Gregory
Stanphill, testified that Summers was a very sophisticated
juvenile. And LVMPD Officer Thomas Bateson testified about
Summers’s gang affiliations. Several other witnesses,
including the Warden of Camps for the NDOC, testified that
Summers was a discipline problem while he was in custody.

Summers called several family members to testify on his
behalf: his uncle, nephew, second cousin, grandmother, and
sister. They testified that Summers was the youngest of
three children, his mother and father drank alcohol and
used illegal drugs, and his father sometimes beat his
mother. Summers’s mother and father had since died. Summers
had an impoverished childhood, sometimes not having enough
food to eat and going to school in dirty clothes. The
members of his family also testified about their love for
Summers, his belief in God, and how they would write to him
while he was in prison. Summers had asked to be removed
from the courtroom prior to the start of the hearing and,
therefore, did not make a statement in allocution.

The State finally called NDOC Officer Jeffery Moses, who
had arrived at the hearing late because of a delayed
airline flight. Officer Moses testified that he found a
six-inch-long weapon in Summers’s prison cell in 1997 and
that Summers took responsibility for having it.

The jury found four circumstances aggravated the murder.
Three of the aggravators were found pursuant to NRS
200.033(2) — that the murder was committed by a
person who had been convicted of a felony involving the use
or threat of violence. These three aggravators were based
on Summers’s 1996 conviction for robbery and instant
convictions for assault with the use of a deadly weapon and
attempted murder with the use of a deadly weapon. The other
aggravator was found pursuant to NRS 200.033(3) —
that the murder was committed by a person who knowingly
created a great risk of death to more than one person.

The jury found six mitigating circumstances: the absence of
parental guidance; impoverished living conditions and
environment; pressured into gang activity; mentors were
criminals, gang members, and drug dealers; lack of
recommended psychological treatment; and a continuing
supportive family. The jurors concluded that the
aggravating circumstances outweighed the mitigating but
imposed upon Summers a sentence of life without the
possibility of parole for Thomas’s murder.

The district court later entered a judgment of conviction
on June 30, 2005, sentencing Summers to two consecutive
terms of life in prison without the possibility of parole
for the first-degree murder with the use of a deadly
weapon, and various concurrent and consecutive terms for
the attempted murder and assault convictions. When Summers
was asked by the district court during sentencing if he had
anything to say, Summers replied, “It is what it is.” This
appeal followed.


I. Application of the Confrontation Clause and Crawford v.
Washington to a capital penalty hearing

Summers contends that the Confrontation Clause and Crawford
apply to a capital penalty hearing and therefore the
admission of nearly 835 pages of documentary exhibits
containing testimonial hearsay violated his right to
confrontation.[fn3] We disagree.

The Sixth Amendment to the United States Constitution
provides: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses
against him.” The United States Supreme Court held in its
2004 opinion Crawford that the admission of testimonial
hearsay statements violates the Confrontation Clause unless
the declarant is unavailable to testify and the defendant
had a prior opportunity to cross-examine him or her.[fn4]

We have never fully addressed the relevance of the
Confrontation Clause in a capital penalty hearing. This
court recognized in Lord v. State[fn5] that the right to
confrontation applies in capital penalty hearings in one
respect: admitting a nontestifying codefendant’s confession
generally violates a defendant’s right to confrontation
under Bruton v. United States.[fn6] Lord addressed only the
Bruton question and did not otherwise explore the right to
confrontation at a capital penalty hearing.[fn7] We limit
Lord to its facts.

Guiding our decision today is the Supreme Court’s 1949
opinion Williams v. New York.[fn8] The Court recognized in
Williams that “most of the information now relied upon by
judges to guide them in the intelligent imposition of
sentences would be unavailable if information were
restricted to that given in open court by witnesses subject
to cross-examination.”[fn9] The Court rejected the
contention that a death sentence based on information from
witnesses whom the defendant had not been permitted to
confront violated the Due Process Clause of the Fourteenth
Amendment of the United States Constitution.[fn10]

Williams has since been relied upon for the proposition
that the Confrontation Clause does not apply to capital
sentencing.[fn11] Although the continuing viability of
Williams has been called into question,[fn12] in our view,
and that of the Ninth Circuit Court of Appeals, it remains
good law.[fn13] Crawford did not overrule Williams.[fn14]
Indeed, the Supreme Court has yet to address whether its
opinion in Crawford has any bearing on any sentencing
proceedings, capital or otherwise.[fn15]

The Court in Crawford indicated no intent or basis to
extend the Sixth Amendment to capital penalty hearings. No
federal circuit courts of appeals have extended Crawford to
a capital penalty hearing, and the weight of authority is
that Crawford does not apply to a noncapital sentencing

We have recognized that under NRS 175.552(3) hearsay is
generally admissible[fn17] in a capital penalty
hearing.[fn18] Absent controlling authority overruling
Williams and extending the proscriptions of the
Confrontation Clause and Crawford to capital penalty
hearings in Nevada, we are not persuaded to depart from our
prior jurisprudence and extend to capital defendants
confrontation rights under Crawford.

We therefore conclude that neither the Confrontation Clause
nor Crawford apply to evidence admitted at a capital
penalty hearing and the decision in Crawford does not alter
Nevada’s death penalty jurisprudence. Because Summers did
not enjoy a right to cross-examine[fn19] the declarants who
were the source of alleged testimonial hearsay within
documentary exhibits admitted at his capital penalty
hearing, he has shown no error occurred on this issue.

The concurring and dissenting justices in this appeal would
extend the Supreme Court’s holdings in Ring v.
Arizona[fn20] and Crawford and hold that the right to
confrontation applies to the jury’s eligibility
determination in a capital sentencing proceeding.
Notwithstanding this conclusion, however, the separate
concurring and dissenting opinion recognizes that the
Confrontation Clause does not apply to the jury’s
deliberations with respect to the penalty that should be
imposed on a defendant whom the jury has found to be death
eligible. Even assuming that our dissenting and concurring
colleagues have correctly foreseen that the Supreme Court
will someday hold that Crawford and the Confrontation
Clause are applicable to the eligibility phase of a capital
sentencing proceeding, in our view, Nevada’s capital
sentencing scheme permitting unbifurcated penalty hearings
would remain constitutionally viable. We submit that such a
holding would not require penalty hearings to be fragmented
into phases where the jury separately considers and answers
the factual questions relating to whether: (1) the alleged
aggravating and mitigating circumstances have been
established, (2) the aggravating circumstances outweigh any
mitigating circumstances, and(3) the penalty of death
should actually be imposed on a defendant whom the jury has
found to be death eligible.

In this, we note that this court generally presumes that
juries follow district court orders and instructions.[fn21]
In Tavares v. State,[fn22] for example, this court
implicitly recognized that jurors are intellectually
capable of properly following instructions regarding the
limited use of prior bad act evidence. If jurors can perform
an act of intellectual discrimination permitting
consideration of prior bad act evidence for one purpose,
but not for another, they are most certainly intellectually
capable of following a clear instruction directing that
they must refrain from considering testimonial hearsay in
deciding a capital defendant’s death eligibility, but that
they may nonetheless consider such evidence in deciding
whether to actually impose a death sentence on a defendant
whom they found eligible to receive it.[fn23] Our view in
this respect is confirmed by the fact that the jurors in
the instant case found the aggravating circumstances
outweighed the mitigating circumstances but did not
sentence Summers to death. Thus, the jury’s verdict in this
case clearly evinces the jury’s capability to
intellectually discriminate between the types of evidence
presented and to impose a just sentence.

II. Other claims raised by Summers on appeal

In addition to his Confrontation Clause and Crawford claim,
Summers raises four other claims on appeal. We have
carefully reviewed each of these claims, and we conclude
that they do not warrant any relief.

First, Summers contends that juror 661 was biased because
one of the prosecutors once dated her daughter. However,
Summers did not challenge juror 661 for cause, and our
review of her examination during voir dire does not reveal
that she was biased or improperly seated in violation of
his constitutional right to a fair and impartial jury.[fn24]

Second, Summers contends that the district court committed
judicial misconduct and failed to exercise self-restraint
and impartiality during his counsel’s cross-examination of
State witness Albert Paige by interpreting Paige’s answers
and failing to admonish Paige for answering questions with
questions. However, the cross-examination of Paige was
contentious, and the district court was acting to maintain
control over the trial and did so without clear objection
from Summers.[fn25]

Third, Summers contends that the district court abused its
discretion by denying separate motions for a mistrial. One
motion was made during the guilt phase based on a statement
by State witness Frederick Ameen regarding threats to his
life. However, this statement was not elicited by the
State, and the district court ordered it stricken. The
other motion was made during the penalty hearing and was
based on several instances of alleged prosecutorial
misconduct. We discern no misconduct in the instances cited
by Summers on appeal. Summers has failed to demonstrate the
district court abused its discretion by denying either of
his mistrial motions.[fn26]

Finally, Summers contends that he was denied a fair trial
because of cumulative error.[fn27] For the reasons already
discussed above, we conclude that Summers is not entitled
to relief on this claim or any other he raises on appeal.


Neither the Confrontation Clause nor Crawford extend to
evidence admitted during a capital penalty hearing. We
conclude that this issue, along with the others Summers
raises, does not warrant reversal of his conviction or
sentence. We affirm.

We concur: Becker, J., Gibbons, J., Parraguirre, J.