WILSON v. STATE, 101 Nev. 452 (1985)

705 P.2d 151

Nos. 12346, 13267Supreme Court of Nevada.
August 28, 1985 Rehearing denied December 11, 1985

Rehearing of appeals from judgments of conviction, following guilty pleas to murder, robbery with the use of a deadly weapon and kidnapping with the use of a deadly weapon; imposition of the death penalty by a three judge panel (No. 12346); and denial of motions to withdraw guilty pleas (No. 13267). Second Judicial District Court, Washoe County; Peter I. Breen, Michael E. Fondi and John F. Mendoza, Judges.

David G. Parraguirre, Public Defender, and N. Patrick Flanagan, Special Counsel, Reno, for Appellant Olausen.

Fred Hill Atcheson, Reno, for Appellant Wilson.

Brian McKay, Attorney General, Carson City; Mills Lane, District Attorney, and Edward B. Horn, Deputy District Attorney, Reno, for Respondent.

Page 453

OPINION
Per Curiam:

Appellants Edward Thomas Wilson and John Steven Olausen pleaded guilty to the first degree murder of Reno undercover narcotics officer James Hoff and were sentenced to death by a three judge panel. The murder convictions, as well as convictions of related felonies (kidnapping and robbery), were affirmed by this court in Wilson v. State, 99 Nev. 362, 664 P.2d 328 (1983). Respondent and appellants both petitioned this court for rehearing, noting we failed to conduct an express proportionality review of the death sentences as required by NRS 177.055(2)(d).[1] The petitions also requested rehearing on whether the death sentences were imposed “under the influence of passion, prejudice or any arbitrary factor.” NRS 177.055(2)(c). On August 24, 1983 we issued an order granting rehearing for the limited purpose of conducting a proportionality and an arbitrariness review of the

Page 454

death sentences. We have conducted a proportionality review of the death sentences in this case. Based on that review, we conclude that the death sentences are not disproportionate to the penalty imposed in similar cases. We have also concluded that the sentences were not imposed under the influence of passion, prejudice or other arbitrary factor. Accordingly, we affirm the sentences of death.

Appellants, along with two other young men,[2] carried out an elaborate, preplanned plot to kill a drug dealer for $16,000.00. The drug dealer was actually Reno police officer James Hoff, who was conducting an undercover investigation. Wilson, the apparent ringleader of the group, brought Hoff to the scene of his death where the other three were lying in wait. Hoff was stabbed a total of nine times. There was evidence that Hoff begged for his life after the first wounds were inflicted. A medical expert testified that Hoff might have lived as long as twenty minutes after the attack before dying of massive bleeding.

Hoff’s body was placed in the back of his Datsun 280Z and taken to a remote area in Verdi, where he was buried in a shallow grave. His fellow officers located the body the next day after a massive search effort.

Comparing the facts of this murder with other capital cases in Nevada, we conclude that Hoff’s murder evidences the brutality and violence present in other cases in which the death penalty was imposed. See Farmer v. State, 101 Nev. 419, 705 P.2d 149
(1985); Nevius v. State, 101 Nev. 238, 699 P.2d 1053 (1985); Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). The trial judge described the killing as “one of the most brutal and merciless murders [Reno] has known.”

We are aware that the facts of this case do bear some similarity to the facts of a case in which only life imprisonment was imposed. See Crew v. State, 100 Nev. 38, 675 P.2d 986
(1984) (life sentences imposed for first degree murder of two men killed during a drug deal). Nevertheless, we are persuaded that the death penalty has not been “`wantonly’ or `freakishly’ imposed,” Jurek v. Texas, 428 U.S. 262, 276 (1975), given the high degree of premeditation in this case. Appellants participated in a preconceived and vicious murder by stabbing, motivated by

Page 455

intent to rob. It was committed by four men in concert, one of whom, appellant Wilson, had a prior arrest record for a violent felony.

We particularly note that some flexibility must be incorporated into any scheme of proportionality review. The fact that juries have imposed a lesser penalty than death in some cases factually similar to the one under review is significant, but is not absolutely binding on the reviewing court. The unique aspects of the case under review may cause it to withstand proportionality review even in the face of points of similarity with life imprisonment cases. See Moore v. State, 213 S.E.2d 829 (Ga. 1975), cert. denied, 428 U.S. 910 (1976). The Moore court specifically noted that it was not the duty of a reviewing court to determine that less than a death sentence was never imposed in cases with some characteristics similar to the one under review. Id. at 832. From our comparative review, and taking into account the specific facts and circumstances of this case, we conclude that the death penalty is not disproportionate as to either appellant.

We further conclude that nothing in the record of the proceedings below indicates that the death sentences were imposed under the influence of passion, prejudice or any arbitrary factor. Accordingly, the death sentences are affirmed.[3]