Dead of Night (25 page)

The district court did not err,
the order said.

 

 

Biela’s next argument was that the crimes were not connected together, the order said. The test for connectedness recognized by the court said that cases could be connected if they were proven by clear and convincing evidence and shown to be relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The district court ruled that the similarities in the facts were sufficient to prove that the offenses were connected together:

Biela’s team next put forth the argument that the state committed reversible plain error by repeatedly violating the district court’s order that prohibited the characterizing of certain evidence as pornographic. According to his previous submissions to the court, the state had violated that order on three occasions, but no objections had been mounted by the defense during the trial.

We are unable to review whether these occasions constituted a violation of the district court’s order,
the order said, adding they could not discern plain error where Biela failed to articulate convincingly how those putative violations prejudiced him and, thus, how his substantial rights were violated.

 

 

On the matter of juror-initiated questions, the order said that Biela claimed the district court committed reversible error when it allowed the jury to allow questions. Even if the district court did not err in permitting jury questions, Biela further claimed, the district court did err when it failed to weigh the risks of permitting such questions on the record, to restrain their number, or to instruct the jury that it should not put undue weight on these questions.

While he admittedly acquiesced to the allowance of jury questions and to the procedure by which they were asked and objected to, the order stated, Biela claimed that the errors were nevertheless plain and affected his substantial rights. He additionally claimed error as to the one jury question to which he did object, and said that it was also error for the juror questions to be allowed.

The supreme court stated that it had recognized that allowing juror-initiated questions did pose certain dangers, but it might also “significantly enhance” the “truth-seeking function” of the trial process and, therefore, had left the decision on whether to allow such questions to the “sound discretion” of the trial court. Beyond the bare and conclusory contention that the community’s interest in the case posed the danger of an overly inquisitive jury, Biela did not point to any specific way in which his substantial rights were violated. Further, Biela could hardly complain of a procedure to which he had agreed.

For similar reasons, the order went on to say, the district court committed no error in failing to restrain the number of jury questions. The appellant claimed a count of ninety-nine juror questions, and said the “excessive” number proved evidence of a jury that had thoroughly abandoned its role as a neutral finder of facts.

Biela never objected to the number or alleged excessiveness of the jury questions, and the district court did not err in failing to object in his stead,
the order determined.

Also on the matter of jury questions, Biela claimed that the district court should have stated on the record that it had weighed the risks of asking jury questions against the benefits and then giving its reasons for allowing the questions in his case.

We discern no plain error,
the order countered,
and we also decline his invitation to adopt the disapproving stance of the federal courts on the practice of asking questions.

Biela had also contended that the district court erred in failing to promptly instruct the jury not to place undue weight on the responses they received to their questions. This instruction was given on the fifth day of the trial and at the close of evidence.

The supreme court found that there was no error, as the district court twice gave the undue-weight admonition to the jury.

 

 

Additionally, Biela claimed that the district court erred when it denied his motion for a mistrial because one of the jury questions presupposed that he was guilty of assault with a deadly weapon.

The supreme court disagreed, pointing out that the district court held a hearing at which it asked the juror who authored the question whether it indicated that she had prematurely decided Biela’s guilt as to count 1. The juror stated that it did not indicate that, and the parties declined to ask any follow-up questions. A fair reading of the juror’s question supports the district court’s determination that the juror was simply requestioning factual information and not revealing a premature opinion:

The next area of argument concerned sufficiency of evidence, with Biela contending that reversal was required on count 1, the sexual assault of Amanda Collins. Her identification of Biela as her rapist, Biela had claimed, had occurred only after media reports named him as a suspect in the Brianna Denison case and Amanda had seen his photo on a newspaper’s website. This allegedly had made her identification of him “suspect.” This had been presented as a sufficiency-of-evidence claim, but Amanda testified at trial, identified Biela as her attacker, and maintained that he had sexually assaulted her.

Such testimony, standing alone, is sufficient to support his conviction on this count,
stated the court, saying that they rejected his claim that certain facets of Amanda’s testimony rendered it incredible as a matter of law.

 

 

Several contentions were raised concerning jury instructions in the guilt and penalty phases of the trial. Biela claimed that the district court erred when it declined to give the federal-pattern jury instruction on reasonable doubt and gave Nevada’s statutory instruction, instead, the order said.

 

 

Biela’s second argument had been that the district court had committed reversible error when it gave an instruction explaining the trial would occur in two phases and that, if the jury found Biela guilty of murder it would then be called on, in the second phase, to decide whether or not to impose the death penalty. Biela claimed that instruction was in error because it exceeded what was required and invited the jury to convict him of first-degree murder so that it could then get to the penalty phase.

The court ruled in its order that the jury instructions had conformed to the legal requirements; the defense had agreed to the instruction at trial; its failure to object precluded the court’s consideration of his claim on appeal.

The next issue addressed in the court’s order concerned Biela’s argument that he should be given a new penalty hearing because the penalty phase instructions erroneously told the jury that it was required to find that the mitigating circumstances outweighed the aggravating circumstances beyond a reasonable doubt. The jurors in the case, the appellant claimed, had been given jury instructions for the penalty phase that frequently, but not uniformly, stated that in order for a juror to find Biela ineligible for the death penalty, the mitigating circumstances must have outweighed the aggravating circumstances beyond a reasonable doubt. The beyond-a-reasonable-doubt standard had been inserted into two weighing instructions at the request of the state, Biela claimed, with Biela’s acquiescence.

The order stated that the instructions in this case correctly informed the jury that in order to find Biela death eligible, it must first find beyond a reasonable doubt that at least one aggravating circumstance existed. The relevant statutes only required that the jury must also find that any mitigating circumstances did not outweigh those in aggravation.

The order went on to say that no Nevada statute mentioned a burden of proof as it pertained to the weighing determination, and the court said that it had long rejected claims that the weighing of the mitigating and aggravating factors in a death penalty case was subject to the beyond-a-reasonable-doubt standard. The court had previously held that because the weighing determination was a moral issue and not a fact-finding exercise, it was not susceptible to a standard of proof. As a result, the order said that while the existence of an aggravating or mitigating circumstance was a fact susceptible to proof under a reasonable doubt or preponderance standard, the
relative weight
was not. The two instructions given in this case thus misstate the law and similar instructions should not be used in the future.

According to the order, Biela did not object to these instructions and had failed to demonstrate that the beyond-a-reasonable-doubt language had been prejudicial to him:

The order then addressed Biela’s claim that the cumulative effect of the errors committed during his trial warranted reversal of his conviction and sentence.

Having found only one error that was not itself prejudicial, we conclude that Biela’s claim of cumulative error lacks merit,
the court said.

 

 

In the court’s final statement of the order, its mandatory review, it said that the law required that the court review every death sentence and consider three points. First, whether sufficient evidence supported the aggravating circumstances found; second, whether the verdict was rendered under the influence of passion, prejudice, or any arbitrary factor; and third, whether the death sentence was excessive.

First, the four aggravating circumstances found by the jury were based on the four felonies of which Biela was convicted of in the guilt phase. Sufficient evidence existed to support these convictions, including the surviving victims’ testimony, the evidence corroborating that testimony, and the extensive DNA and other forensic evidence presented, according to the order.

Second, the order said, there was nothing in the record demonstrating that the jury’s verdict was the result of passion, prejudice, or any other arbitrary factor. Biela claimed that the extensive media attention this case received polluted the jury pool with fear that a violent sexual predator was on the prowl for months and that the evidence that the police released to the media further served to inflame members of the community, according to the order. To the contrary, the order concluded the jury’s finding of twenty-three mitigating circumstances, and the ninety-nine questions it asked during trial, provided ample evidence that it was attentive, thoughtful, and did not rush to judgment in the determination of either guilt or penalty.

Finally the order stated that it found that the death penalty was not excessive in this case. Despite his evidence in mitigation, the presented evidence quite persuasively showed that Biela entered someone else’s home early in the morning, pressed a pillow to a sleeping woman’s face until she choked, and abducted her. He then raped her, strangled her with the strap of her best friend’s thong underwear, and left her body in a field. This crime followed his stalking and sexual assault of two other young women.

The order said that those crimes and this defendant were
of the class or kind that warrants the imposition of death.
Having considered Biela’s contentions and conducted the review required by NRS 177.055 (2), the supreme court concluded that no relief was warranted: