Dead of Night (22 page)
Authors: Gary C. King
In the Biela case, prior to the start of the trial, Judge Perry had specifically ordered that neither the prosecution nor the state’s witnesses would be allowed to refer to the photographs and the Internet website information that were part of the evidence against Biela as being pornographic or adult in nature. He also ordered that a
Playboy
magazine that had been found underneath some thong panties was not to be shown in any of the photographs or mentioned in testimony. Despite this order, the brief stated, the prosecution referred to the
Playboy
magazine in its opening statement, then characterized some of the photographs as “adult” and elicited testimony from more than one witness that specifically described the material as pornography and as adult or sexual in nature. This violation of the judge’s order, according to the brief, was plain error affecting Biela’s substantial rights.
Playboy
magazine that had been found underneath some thong panties was not to be shown in any of the photographs or mentioned in testimony. Despite this order, the brief stated, the prosecution referred to the
Playboy
magazine in its opening statement, then characterized some of the photographs as “adult” and elicited testimony from more than one witness that specifically described the material as pornography and as adult or sexual in nature. This violation of the judge’s order, according to the brief, was plain error affecting Biela’s substantial rights.
Another point brought into question concerned Nevada’s instruction of reasonable doubt, which requires a jury to define reasonable doubt as that kind of doubt that would “govern or control” a person in the “more weighty affairs of life.” That instruction, the brief said, constituted structural error:
As a measure or standard, Nevada’s reasonable doubt instruction fails to define reasonable doubt with an emphasis on the prosecution’s burden, is not worded in simple, clear language, and does not convey the requirement that the jury must be subjectively certain of the defendant’s guilt in order to convict.
Accordingly, the instruction constitutes structural error and Mr. Biela is entitled to a new trial where the evidence can be assessed and evaluated under a constitutionally proper standard of reasonable doubt.
Finally the trial section of the brief stated that the accumulation of error in the case denied Biela a fair trial.
In the penalty section, the brief stated that in Nevada, in order to obtain a death sentence, the state must prove beyond a reasonable doubt that at least one aggravating circumstance exists and that the aggravating circumstance or circumstances outweigh any mitigation evidence:
In this case, the jury was instructed explicitly in at least two instructions, if not in four instructions, that it must find that the mitigation evidence presented in this case had to outweigh beyond a reasonable doubt the aggravating circumstances in order to preclude consideration of the death penalty.
That inadvertently reversed instructional error, the brief said, mandated that the death sentence should be set aside and that Biela should be given a new penalty hearing before a newly impaneled jury, or that the death sentence should be set aside and a sentence of life without the possibility of parole should be imposed, instead.
Finally the brief argued that even without the instructional error in the case, the court’s independent review of the death penalty based on the crime and on Biela himself should convince the court that the death sentence in the case was excessive and was the product of passion, prejudice, and other factors. That conclusion should lead, at a minimum, to an order by the court setting aside the death penalty and ordering that a life sentence without the possibility of parole should instead be imposed.
After this section of the brief, a very long and detailed argument section followed. It made the argument that the case should have been severed into three separate cases. The following points were presented in support of this claim:
1.
The assaults took place at separate locations at or near the University of Nevada, Reno, and were within four football field lengths of each other, but the locations themselves were not similar. One took place in a parking garage at UNR, the next happened in the parking lot of an apartment close to UNR, and the third happened inside an apartment near UNR. The fact that each assault involved a college student was unremarkable, since all of the incidents occurred at or near UNR.
The assaults took place at separate locations at or near the University of Nevada, Reno, and were within four football field lengths of each other, but the locations themselves were not similar. One took place in a parking garage at UNR, the next happened in the parking lot of an apartment close to UNR, and the third happened inside an apartment near UNR. The fact that each assault involved a college student was unremarkable, since all of the incidents occurred at or near UNR.
2.
The attacks supposedly took place under different situations. In one case, the alleged victim testified that a gun had been used, that she had not been actually removed from the parking garage, where she had been attacked, and that she had been vaginally assaulted. On the other hand, another alleged victim said that she had been kidnapped from a parking lot and driven to another parking lot several miles away, that she had been forced to have mutual oral sex with her assailant, and that she was digitally penetrated. In addition, she said she had been brought back following the assault to the location from where she was kidnapped, and no weapon was ever used or seen during the assault. In Brianna Denison’s case, she was in her friend’s home when she went to bed and was not there the next morning; she was taken away from her original location and was never brought back. There was evidence in her case that a ligature was used to subdue her. The claim that the victims were all of a similar height and weight was insignificant, the brief stated, because they were all people who were of average height and weight, and Virgie was ethnically different from either Amanda or Brianna.
The attacks supposedly took place under different situations. In one case, the alleged victim testified that a gun had been used, that she had not been actually removed from the parking garage, where she had been attacked, and that she had been vaginally assaulted. On the other hand, another alleged victim said that she had been kidnapped from a parking lot and driven to another parking lot several miles away, that she had been forced to have mutual oral sex with her assailant, and that she was digitally penetrated. In addition, she said she had been brought back following the assault to the location from where she was kidnapped, and no weapon was ever used or seen during the assault. In Brianna Denison’s case, she was in her friend’s home when she went to bed and was not there the next morning; she was taken away from her original location and was never brought back. There was evidence in her case that a ligature was used to subdue her. The claim that the victims were all of a similar height and weight was insignificant, the brief stated, because they were all people who were of average height and weight, and Virgie was ethnically different from either Amanda or Brianna.
3.
The original locations in each of the three charges, despite being fairly close to each other and in the same area of the city, on or near the UNR campus, were each unique. In the October 2007 assault, the crime took place in a public parking garage. In the December 2007 rape, the assault began on an open street-side public parking lot. In the charges involving Brianna, the crime began inside an apartment.
The original locations in each of the three charges, despite being fairly close to each other and in the same area of the city, on or near the UNR campus, were each unique. In the October 2007 assault, the crime took place in a public parking garage. In the December 2007 rape, the assault began on an open street-side public parking lot. In the charges involving Brianna, the crime began inside an apartment.
4.
The brief detailed the movements involved in each of the three charges, which it claimed involved different actions of the assailant. In the charge involving Amanda, she was not taken away from the original site of the crime. Virgie was moved from the beginning location to a place that was several miles away, then returned to the place from which she was originally kidnapped. Brianna was moved from her friend’s house and was never returned there.
The brief detailed the movements involved in each of the three charges, which it claimed involved different actions of the assailant. In the charge involving Amanda, she was not taken away from the original site of the crime. Virgie was moved from the beginning location to a place that was several miles away, then returned to the place from which she was originally kidnapped. Brianna was moved from her friend’s house and was never returned there.
5.
The actions of the assailant in each of these cases, said the brief, were substantially different. In the first case, the victim was grabbed from behind, a gun was used to force her to submit, and the crime involved penile penetration. In the second case, the victim was grabbed from behind, but the attacker covered her mouth and nose with his right hand and placed his left hand around her body, holding down both of her arms. No weapon was used in that case, and the victim was subjected to forced mutual oral sex and digital penetration. In the cases involving Brianna, the attacker was believed to have pushed a pillow over her face; the weapon used to subdue her was a ligature; forensics believed there to have been some degree of penetration, but DNA had only been found on the outside of her body.
The actions of the assailant in each of these cases, said the brief, were substantially different. In the first case, the victim was grabbed from behind, a gun was used to force her to submit, and the crime involved penile penetration. In the second case, the victim was grabbed from behind, but the attacker covered her mouth and nose with his right hand and placed his left hand around her body, holding down both of her arms. No weapon was used in that case, and the victim was subjected to forced mutual oral sex and digital penetration. In the cases involving Brianna, the attacker was believed to have pushed a pillow over her face; the weapon used to subdue her was a ligature; forensics believed there to have been some degree of penetration, but DNA had only been found on the outside of her body.
The brief contended that none of the cases was an integral part of any of the others, and its belief was that the fact that each of the victims was sexually assaulted in some fashion had not been enough to render them part of a common scheme or plan. Neither, it claimed, was the fact that they had occurred in a variety of locations in close proximity and near the university, nor the fact that each case had involved young women. Even combining all the common elements together was said to have been not enough to make the allegations part of a common scheme or plan, when considering the large number of differences that had occurred in each case. Therefore, the brief said, the district court’s conclusion that the individual cases were part of a common scheme or plan was an abuse of discretion, as was its denial of Biela’s motion to sever the cases.
Another point argued in the brief stated that Biela’s lawyers were concerned that there might be confusion between the cases, specifically mentioning that the DNA evidence could be confused by the jury from one case to the other. The fact that the judge himself had confused the DNA evidence in the cases at one point was noted, with the brief saying that when even the district court could not keep the facts straight—after having read and reviewed the evidence in written form and hearing it presented again in argument—it was evident that it could not be logically expected to expect the jury to perform more accurately than the judge when presented with the evidence during the trial.
Biela’s convictions should therefore be reversed, the brief said, and three separate trials should take place: one for the assault against Amanda Collins, one for Virgie Chin’s assault, and one for the charges involving Brianna Denison.
The next listed item was a challenge to Amanda Collins’s identification in court of Biela as her assailant. The challenge was based on the fact that her identification had allegedly been made after she had looked at photographs of him in public media news accounts on the Internet following his arrest for Brianna’s murder. The arrest was attributed in part to a police sketch that Amanda had helped create, which had been released to the media and the public. That was claimed to have caused her identification of Biela to be suspect and, therefore, not sufficient to sustain his conviction for her assault.
Amanda had testified that she had kept her eyes closed for most of the time that her assailant was on top of her. She felt that she could “completely dissociate” if she kept her eyes closed. He also had a hood pulled over most of his face, she had testified, and she could not see all of it. After the assault, she showered and threw away her clothes; so nothing of evidentiary value was saved, and the only evidence against Biela was Amanda’s identification of him.
The brief claimed Amanda’s identification was also questionable because she did not report the assault until four months after it had occurred, after reports of Brianna’s possible abduction had blanketed the local news. Amanda had agreed to come forward at that time and cooperate with the police because she stated, “There was something bigger than myself at hand. It was more than just me at that point.”
Amanda had not told her parents of the assault until after Brianna’s body was discovered, saying, “In the event that something like this would happen, or they caught him, [my parents] would be aware.”
The brief contended that in Amanda’s mind, she had already tied her assault to Brianna’s case. Then, when her parents called her and told her a suspect had been arrested in Brianna’s murder, Amanda went on her computer and looked at a local news channel, saw Biela’s photos, and concluded that he was her assailant.
Detective David Jenkins had stated that Amanda was very upset and confided to him during his questioning that she had been alerted by other people that an arrest had been made recently. She and her husband had been directed to the Internet, where they had looked at some media coverage of recent events in Reno. She told him, Jenkins said, that based upon her reviewing those media accounts—and specifically photographs of an individual—she was certain that was the individual who had attacked her.
She had also directed the detective to
a specific photograph for James Biela that she had viewed on the Internet as part of a media release.
a specific photograph for James Biela that she had viewed on the Internet as part of a media release.
Further information was listed in the brief about the extensive coverage of the Brianna Denison case and the attention it garnered for months in the northern Nevada area. Amanda had come forward, helped the police develop the sketch of her assailant (which one officer said bore a remarkable resemblance to Biela), and experienced what the brief described as “motivated cognition,” which is the tendency of people to form perceptions and to process factual information in a manner congenial to their values and desires. It was not beyond reason, the brief said, that given Amanda’s personal investment in the Brianna Denison case, she would have identified anyone arrested in that case as her assailant. There was no other evidence that connected Biela to her sexual assault. As a matter of law, the brief stated, Amanda’s identification of Biela should be discounted as suspect. With no other evidence supporting the allegations contained in her case, the brief contended that his conviction should be reversed.
Chapter 28
The next point addressed in the opening brief of Biela’s appeal said that by the court allowing unrestrained juror questioning without administering adequate safeguards, the jury’s role as a neutral finder of facts had been compromised, and Biela’s right to trial by an impartial jury was prejudiced.
Juror questioning should have never been permitted in the first instance, according to the brief, because the risk of prejudice in this sensitive trial outweighed the practice’s utility. Although some lower courts were accustomed to allowing it, juror-inspired questioning was not a mandatory part of trial practice in Nevada. It was, instead, a case-by-case practice that could be allowed at the discretion of the trial court.
Brianna’s case, along with that of the two other victims, captivated the attention of an entire community for months. The blue ribbons, the foundation, the media coverage—all those things combined to make it an inappropriate case in which to allow the jury to become advocate and inquisitor, stated the brief:
Even though defense counsel acquiesced in allowing jurors to pose questions to witnesses, allowing the practice at all was an abuse of discretion in the first instance and plain error.
At no time, Biela’s appeal attorneys claimed, was there a hearing to determine the propriety of allowing jurors to have the power of interrogation. There was only a cursory mention that the jurors would be allowed to ask questions. Judge Perry did state that he would rule on jury questions “just like if a lawyer asked it. If it’s permissible, I will allow it. If it’s not, under the law, then I can’t.”
However, Biela’s attorneys pointed out in the brief that the judge’s statement came after thirty-three juror questions already had been asked, out of the total of ninety-nine questions that had been posed during the trial. This oversight, they said, was significant. The number of questions asked by the jury was excessive, they added.
Their claim was that the sheer volume of questions asked at trial was extreme, reflecting a practice that was unrestrained and inherently dangerous, with even the prosecutor implicitly acknowledging the abnormal number of questions that were being asked by the jury. The prosecution even went so far as to request an instruction to prohibit jurors from asking questions during closing arguments. The brief stated that the expectation that the jury would do so at all during that time made little sense, unless there was a perception by the prosecution that the number of questions asked by the jury during trial was extreme.
The brief claimed that the jury did not simply welcome the enlargement of its traditional role. No, it readily abandoned it. There was no other explanation, it stated, for the jury’s extreme amount of questioning of witnesses, and the judge’s admonishment, coming after thirty-three questions already had been asked. It did nothing to stem the tide of further questions, since sixty-six more questions were asked after the admonishment. The excessive questioning continued, it said, and nothing had been done to try to correct the resulting harm to Biela’s case.
The one specific juror question that had prompted the defense to ask for a mistrial was examined in detail by the appellate attorneys.
During the direct examination of Detective David Jenkins, he had testified that Biela had recently attempted to buy a gun and had said that he was planning to kill himself. That prompted a juror to ask if the detective had any thoughts on why Biela would try to buy a gun, if he already had one, which he had allegedly used in Amanda Collins’s assault.
This question had resulted in Biela’s defense asking for a mistrial, saying it presupposed guilt in Amanda’s case, and saying that the juror asking the question had evidently already come to a conclusion as to Biela’s guilt in that count. Judge Perry subsequently asked the juror about the question sent to Detective Jenkins, about whether or not he had thoughts on why Biela would try to buy a gun if he already had one, which was used with Amanda. Judge Perry said his question was not meant to suggest that he had a belief one way or the other about this. He just simply had to ask, he said, if there was anything about this note that he should be concerned about as indicating that the juror asking the question had made up his or her mind about one of the ultimate issues in the case: whether or not the defendant was guilty of the attack on Amanda Collins.
The juror answered, “No, sir, not at all.”
There were no follow-up questions asked by either the judge or the defense counsel, and the juror was excused to go back into the jury room and rejoin the other jurors, with the court moving on to other matters. The following day, Judge Perry put on the record that the motion for mistrial had been denied.
The brief stated that, respectfully, neither the judge’s question nor the juror’s answer had satisfied the concerns raised by the question, which it said had presupposed that Biela had a gun because Amanda’s assailant had a gun—therefore, he was the assailant. For a juror to have reached that conclusion in the middle of the trial was grounds for a mistrial and had violated Biela’s right to an impartial jury. And because the judge took no further steps to determine the nature and quality of the juror misconduct, Biela should therefore be entitled to a new trial.
The brief then addressed another major point of its concern, claiming that the state’s repeated violation of the district court’s order prohibiting characterization of the other bad act evidence as “adult,” “sexual,” or “pornography” was plain error that had affected Biela’s rights.
Judge Perry had entered an order prior to the start of the trial saying that he was concerned about the prejudicial effect that referring to some of the evidence as “pornography” might have. He explicitly directed the parties that no witness, counsel, or other person speaking on the record was to use the word “porn” or similar characterization to reference the evidence that might be mentioned in that manner. Neither could the Internet materials be described in any such way without the use of actual examples.
During the trial, the defense asked if that earlier ruling was being maintained, and the judge said it was. The prosecution said he had told all of his witnesses that they were not supposed to use that language, and the judge had spent some time making things perfectly clear. He specifically said that the detectives could not testify that they had found thong underwear lying on top of “an adult magazine,” specifically the
Playboy
magazine. He also said again that pictures presented as evidence during the trial could not be described as “adult,” “pornographic,” “dirty,” or “sexual.” He warned on several occasions to “be very, very careful” in how the pictures were described.
Playboy
magazine. He also said again that pictures presented as evidence during the trial could not be described as “adult,” “pornographic,” “dirty,” or “sexual.” He warned on several occasions to “be very, very careful” in how the pictures were described.
The appeal attorneys stated in the opening brief that despite the clear and explicit directions that had been given, the judge’s order had been violated on several occasions. In the opening statement, they said, the prosecutor had said that two pairs of thong underwear had been found lying on top of a
Playboy
magazine, and they said that the search of Biela’s computers had revealed
“hundreds of adult images, many of which depicted young women in poses displaying their thong underwear.”
Playboy
magazine, and they said that the search of Biela’s computers had revealed
“hundreds of adult images, many of which depicted young women in poses displaying their thong underwear.”
During the testimony of Detective Roya Mason, she stated that she had found 1,146 instances of the word “thong” on Biela’s computers, going on to specify that the instances included the phrases “dirty thongs,” “buy used dirty thongs,” “dirty thongs and asses,” and “fetish thongs.” She was asked if she was able to view images that had been found because of those keyword hits, as well, and answered that she was, saying that they were images of adult women wearing thong underwear.
“Were the images like you might see in a Victoria’s Secret catalog?” the prosecutor asked.
“Perhaps,” the detective answered, “but not Victoria’s Secret.”
“Did they appear to be shopping-type websites?” asked the prosecutor.
“No,” Mason answered.
The detective continued to describe a list of links found in the computer search, including fourteen separate instances of the phrase “thong fetish,” with descriptions such as “Coming on mom’s thongs,” “Sexy candid girls in thongs and see-through,” “Mother’s dirty thongs,” “Dirty comments about my slutty mom, thongs and butts, thongs, Bree Olson, sexy thongs//sexy string.”
The defense had objected during the trial to one additional violation of the judge’s order: Detective Wygnanski had testified about the Secret Witness tip that he had received. In the tip, the caller had said Biela was looking at “pornographic websites.” When the defense objected, the prosecutor said that he believed that it had been an inadvertent slip on the detective’s part. He then conceded that he might have failed to tell the detective not to use the word “pornography.”
The brief stated that those errors were plain on the record. It said that the judge had been very specific in his order, and it was very clear that the order had been violated numerous times. The descriptions of the websites clearly conveyed the exact inferences that had concerned the judge, and it claimed that the prosecution had gone out of its way to get testimony from Detective Mason that showed the websites were not the uncontroversial shopping-type websites.
The comments by the prosecutor and the testimony by Detectives Mason and Wygnanski were in direct violation of the district court’s order,
the brief stated. It claimed that the error was plain on the record and violated Biela’s substantial rights. Therefore, it said, the error called for a reversal of Biela’s convictions and remand for new trial.
the brief stated. It claimed that the error was plain on the record and violated Biela’s substantial rights. Therefore, it said, the error called for a reversal of Biela’s convictions and remand for new trial.
The next point stated in the brief was still in reference to the violation of Judge Perry’s order forbidding the use of terms like “pornography” during testimony at the trial. It claimed Detective Wygnanski had violated the order and reversal was required. While testifying, Wygnanski had said the Secret Witness tip that he received had said that Biela was “looking at pornographic sites.”
When an objection was made outside the jury’s presence, the judge said, “I’m satisfied at this point it’s appropriate to go forward,” and did not declare a mistrial.
The prosecution acknowledged that Wygnanski’s testimony was a clear violation of the court order, and admitted that he had not been instructed beforehand not to refer to pornography, saying that it was a “joint mistake on both our parts.” Therefore, the brief stated, even though the state did not deliberately encourage Wygnanski’s statement, neither did it adequately instruct him ahead of time about the order, a duty that the brief said lay squarely with the state.
Wygnanski, co–lead detective on the case, was familiar with every detail of the investigation, and the Secret Witness tip that he had received from a friend of Carleen Harmon’s had been its critical break. He stated that he recalled the tip “like it was yesterday,” including the remark about pornography. For that reason, the brief stated, the state should have anticipated he would include it in his testimony. Reference to it was highly prejudicial and should have triggered a mistrial. The reference, it said, had a substantial and injurious effect on the jury’s verdict, and Biela’s conviction should be reversed.
The next point addressed in the brief was a highly technical criticism of Nevada’s reasonable doubt instruction, which required the jury to see “reasonable doubt” as the kind of doubt that would “govern or control a person in the more weighty affairs of life.” The instruction, the brief contended, did not emphasize the prosecution’s burden, was not worded in simple and clear language, and failed to convey to the jury the proper subjective level of certainty it must have in order to convict.
In Biela’s case, in both the guilt and penalty phases, the trial court instructed the jury that reasonable doubt is one based on reason, and not “mere possible doubt”; and that to be reasonable, doubt must be actual, not mere possibility or speculation.
To be a meaningful safeguard of the presumption of innocence, the brief stated, a reasonable doubt instruction must have a tangible meaning capable of being understood and applied correctly by a jury. Nevada’s reasonable doubt instruction, which contained the “more weighty affairs of life” measure, failed that test.
Moreover, the brief claimed that it failed to define reasonable doubt in a fashion that emphasized the prosecutor’s burden. The standard “more weighty affairs of life,” said the brief, was anything but clear and simple, and the instruction as a whole did not convey the requirement that the jury should be subjectively certain of the defendant’s guilt in order to convict. Nevada’s reasonable doubt instruction, claimed the brief, was “structural error.”
The brief next addressed the fact that Biela’s appeal attorneys believed that a segment of the jury instruction issued by the judge invited the jury to convict on first-degree murder so as to get to a death penalty hearing.
During the first day of jury selection, Judge Perry provided written instructions to the jury and then read aloud the following section, Jury Instruction 29, to the jury once again before their first deliberations:
Perry told the jurors during jury selection that the case might be divided into two phases. During the first phase, about which he told them they were about to deliberate, they would be asked to decide the defendant’s guilt or innocence in the five charges against him.
If the jury then found Biela guilty of count 4, murder, and only if the jury made such a finding, then it would be called on to decide whether or not to impose the death penalty. In order to facilitate a fair and orderly process, Perry told the jurors that the trial of the case would occur in two distinct phases. The first phase would be limited to the question of whether the state had proven the accused’s guilt in any of the charges, including count 4, murder, beyond a reasonable doubt, which was defined by the judge. He told the jury that a reasonable doubt was one based on reason. It was not mere possible doubt, he told them, but was such a doubt as would govern or control a person in “the more weighty affairs of life.”
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