Capital Murder

It goes without saying that the allegation of a homicide is one of the single most intimidating scenarios a person can face. This stress is even greater when the person accused is facing a charge of capital murder, a crime for which the death penalty can be imposed.

In Nevada, most charges involving an accusation of homicide - - the non-accidental killing of one human being by another human being - - are charged as “open murder.” While this term is not widely known, “open murder” means the accusation in a prosecutor’s charging document (either an Information or an Indictment) of an ”open” charge of murder which includes the various levels, or degrees, of homicide. These include first degree murder, second degree murder and if the facts permit, voluntary manslaughter and involuntary manslaughter. When someone is charged with open murder, the jury will ultimately decide what level of homicide the Defendant is responsible for, if at all.

In some cases, the State will charge open murder under Nevada Revised Statue (NRS) chapter 200 and the circumstances alleged by the State of Nevada will allow for the filing of a “Notice of Intent to Seek the Death Penalty.” Nevada is one of 37 States within the US who carries the death penalty in cases where First Degree Murder is found. In the cases where the State believes that consideration of the death penalty is appropriate, the State makes a proffer that the person charged with Murder is eligible for consideration for the death penalty because he, or she, has certain circumstances, known as “aggravating circumstances” which make the Death Penalty a consideration for punishment.

In Nevada Revised Statute Chapter 200, specifically in NRS 200.033, the Nevada Legislature has enumerated these aggravating circumstances which allow for the State to file Notice of Intent to seek the Death Penalty. In any case the Death Penalty is sought by the State of Nevada, the jury (not the judge) must determine if the enumerated and noticed aggravating circumstances outweigh the “mitigating” factors. In those cases, the jury decides whether or not the Death Penalty is the appropriate punishment.

The aggravating circumstances found in NRS 200.033, which allow for seeking of the Death Penalty, include the following:

1. The Murder being committed by an individual who is, at the time of Murder, under a sentence of imprisonment (including being on parole or probation);
2. The person convicted of murder was previously of certain other crimes, including:
   • (a) Another murder;
   • (b) Another felony which includes the use of force or violence (or threat of force or violence on another person;
   • (c) The person convicted of murder knowingly created the risk of harm or death another person;
   • (d) The murder was committed by a person while they were committing, attempting to commit (or fleeing after committing) a robbery, arson, burglary, home invasion or first degree kidnapping;
   • (e) The murder was committed to prevent or avoid arrest or to escape from lawful custody.
   • (f) The murder was committed by a person for financial gain;
   • (g) The person murdered was in law enforcement (aka a peace officer) or a firefighter killed while they were working in their professional capacity;
   • (h) The murder included torture and/or mutilation of the person killed;
   • (I) The person murdered was killed without an apparent motive or at random;
   • (J) The person killed was 14 years of age or younger;
   • (k) The murder was motivated by a “hate crime” - - meaning that the person was killed because of race, color, religion, national origin, physical or mental disability and/or or sexual orientation of the person killed.
   • (l) The person convicted of Murder was, in the present case or in a preceding case, convicted of another first or second degree murder,
   • (j) The person convicted of the killing, subjected or attempted to subject the alleged victim of the homicide to nonconsensual sexual penetration before, during or after the murder;
   • (k) The murder was committed on school or charity property, by a person who intended the great risk of death or substantial bodily harm to more than one person; and
   • (l) The murder was done to further terrorism.

If the State is able to allege one or more of the foregoing, they will be eligible, and often will, file the notice of intent to seek the death penalty.

In the cases where the State seeks the death penalty and the matter proceeds to Trial, it is the job of the Capital Murder defense attorney to point out the mitigating circumstances which are found in NRS 200.035. The jury then decides which of the aggravating circumstances (as outlined above) the State has proven and if those aggravating circumstances outweigh the following mitigating circumstances as defined by Nevada law.

Among the circumstances which are introduced and relied on by the defendant and his counsel which mitigate first degree murder are the following:

1. The person charged has no significant history of prior criminal activity;
2.  The murder was committed by a person under the influence of extreme mental or emotional disturbance;
3. The deceased victim participated in the Defendant’s criminal conduct or consented to the act;
4. The person charged with murder was merely an accomplice in the murder and the acts committed by him or her were minor when compared to the actions of others;
5. The defendant was acting under duress;
6. The defendant was already charged at the time of the crime; and
7. Any other mitigating circumstance.

In those cases where the death penalty is an option for the juries’ consideration, the jury first decides on whether the person charged (the “Defendant”) is responsible for a first degree murder. If the jury decides a first degree murder has been committed, the jury then proceeds to the second phase of Trial, known as the “sentencing phase” or “penalty phase.”

During the sentencing/penalty phase of the Trial, the rules of evidence are greatly relaxed and even hearsay evidence is allowed. The jury then determines whether the aggravating circumstances identified above outweigh the mitigating circumstances. Then, and only then, may the jury consider the death penalty. It should be noted that the jury is never forced to decide that the death penalty should be imposed, even if they determine the aggravating circumstances outweigh the mitigating circumstances. It is also important to note that the number of aggravating or mitigating circumstances does not decide whether the death penalty should be imposed. The jury can refuse to impose the death penalty even if they find that, for example, five (5) aggravating circumstances exist and only one (1) mitigating circumstance exists. Conversely, the jury can find an unlimited amount of mitigating circumstances and only a single aggravating circumstance and still decide to sentence a defendant to the death penalty.

At our office, our Board Certified Criminal Defense Lawyer, Josh Tomsheck, is a former Chief Deputy District Attorney who previously handled countless capital murder cases on behalf of the State of Nevada, the same as the prosecutor will bring against you or your loved ones. In recent years, Mr. Tomsheck has defended all kinds of individuals in cases where they have been charged with the most serious types of homicide and murder.

In a case where a criminal defendant is found guilty of First Degree Murder, the jury can impose a sentence of Death, a Life Sentence in the Nevada Department of Convictions without the possibility of parole, a Life Sentence in the Nevada Department of Convictions with the possibility of parole, or a term of fifty years in prison with parole eligibility after twenty years have been served. These sentences can be enhanced for things such as the use of as deadly weapon, if the crime is committed against and elderly person or if the crime is committed in the furtherance of gang activity. In other words, the jury does not have to impose a death penalty just because the person charged is technically eligible for it. Sometimes the best possible result is a case where the defense fights to the end for the sole purpose of removing the death penalty.

If, and only if, a person is convicted of First Degree Murder, the case will proceed to a penalty hearing. In that hearing the State will present evidence of any of the “aggravating circumstances” outlined above. The Defendant then will have a chance to present any “mitigating circumstances” he or she wants the jury to hear before imposing sentence. In these circumstances it is very common for the defendant to call to the witness stand friends and/or family to tell the Court about the person charged, point out their good points and to ask the Court for leniency.

As detailed above, not every person charged with Murder is eligible for the Death Penalty. To be eligible, the State must first allege an aggravating circumstance and file a notice of intent to seek the death penalty with the Court. Once that is done, the person must be tried and convicted (or enter a guilty plea) for the crime of First Degree Murder. If the person is convicted of Second Degree Murder or Manslaughter, they are not eligible for capital punishment, even if they are found guilty for the Murder itself. Thereafter, the person convicted of first degree murder must undergo a penalty phase before a jury where he or she can present their own evidence. The jury must find that the aggravating evidence presented by the State outweighs the mitigating circumstances presented by the defense. It is only at that time can the jury even consider the death penalty. In addition, there are a number of factors which dictate that even a person convicted of first degree murder cannot be considered for the death penalty in Nevada, including persons charged and convicted who are under 18 years of age or who are “mentally retarded” and do not have the requisite mental capacity to be sentenced to death.

If you, a loved one, or someone you know is charged with any violent crime, including Capital Murder, in Las Vegas, or throughout Nevada, you want to contact our experienced Las Vegas Criminal Defense Lawyer, Josh Tomsheck, right away. We have the experience and knowledge to help you through this most difficult time in your life and to fight as hard as we can to help you get the best outcome possible. Contact us today to learn more about homicide charges in Las Vegas and the law on Nevada’s death penalty.