Servin v. State

Leavitt, J.,

with whom Young, J., agrees, concurring in part and dissenting in part:

I agree with the majority that the judgment of conviction should be affirmed, but respectfully disagree that this court should vacate the sentence of death and impose a sentence of life without the possibility of parole.

The majority concludes the death penalty is excessive in this case because: the testimony of an accomplice, Allen, lacks corroboration; Servin was only sixteen years old at the time of the crime; he lacked a significant criminal history; he expressed remorse; and, he was under the influence of methamphetamine throughout the robbery and murder.

All of these factors were considered by the jury who determined that the proper punishment in this case is death.

Corroboration of accomplice’s testimony

“The evidence necessary to corroborate an accomplice need *797not in itself be sufficient to establish guilt.”1 It is sufficient if the jury is convinced the accomplice has sworn truly and that the charge is true.2 The evidence “may be slight in probative effect, yet its weight is for the jury, and if it tends to connect the accused with the commission of the offense, it . . . satisfies]” the requirement that an accomplice’s testimony must be corroborated.3

Here, Servin’s friend, Joana Diaz, testified that Servin told her that the victim was using the phone when he found her in the master bedroom, and that he told her to “shut up,” grabbed the phone out of her hand and hit her on the head so she would stop screaming. Joana Diaz also testified that Servin threatened to kill anyone who spoke about the crime. Emma Rosa Hernandez, the mother of Servin’s son, testified Servin was in possession of the victim’s cellular phone, Gameboy device, and $80 taken from the victim’s purse. She also testified that Rodriguez told her he was outside the home when the shooting took place. This evidence was weighed by the jury and the jury determined it was sufficient to meet the test of corroborating Allen’s testimony that Servin was the person who did the actual shooting of the victim.

The majority states, “It is possible, if not likely, that Allen was the shooter,’ ’ and relies upon a statement by Damien Winkelman filed in the case by the State nearly nine months prior to trial and disclosed to defense counsel. The district court rejected this evidence as grounds for a new trial and I agree with the majority in affirming the district court’s decision. The statement was not before the jury that imposed the penalty and it is improper to invade the province of the jury by speculating as to possibilities. The only evidence presented to the jury was that Servin was the shooter.

Age of the defendant

The legislature has decided that the death penalty may not be imposed upon any person who at the time of the commission of the crime was under the age of 16 years.4 This court considered *798the imposition of the death penalty upon a sixteen year old defendant in Domingues v. State5 and concluded that the execution of juvenile offenders does not violate the International Covenant on Civil and Political Rights, a treaty ratified by the United States in 1992. The majority in affirming the judgment of conviction here points out that the United States Supreme Court has upheld the constitutionality of inflicting the death penalty on juvenile offenders.6 Since our decision in Domingues the legislature has met twice and has chosen not to increase the age of death eligibility.

This court should not use the age of a defendant as a reason to reduce the punishment to life imprisonment without the possibility of parole when the jury rejected age as a reason for a lesser punishment and when the legislature has declined to increase the age requirement.

The majority also mentions Servin is the youngest of the three charged in the offense. Rodriguez was nineteen years old and Allen was seventeen years old at the time of the crime. The jury sentenced Rodriguez to death and this court upheld the conviction and sentence although all of the evidence in the case indicates Rodriguez was outside when the shooting took place.

Lack of criminal history and remorse

Although Servin did not have an extensive criminal history, testimony was presented concerning a charge of obstructing and resisting wherein a SWAT team was required to remove him from his home. There was other evidence showing Servin received twenty-seven referrals for disciplinary action while a middle school student and he was ultimately expelled from the school district.

The only remorse expressed in allocution by Servin was, “I’m sorry she died” and that he felt bad for the victim’s son “because he ain’t going to be able to see his mother. I mean, I feel bad because I’ve got a son of my own.” The jury observed Servin when he made his statement in allocution and apparently gave it little credence or weight.

Under the influence of methamphetamine

One of the reasons given by the majority to reduce the penalty in this case is that Servin “was under the influence of methamphetamine throughout the robbery and murder.’ ’

The ingestion of methamphetamine was a voluntary act by Servin and his drugged condition does not lessen his criminal culpability for the brutal robbery and murder. Instead, the fact that *799he was under the influence of an illegal substance aggravates the offense.

Whether the death penalty is excessive

The majority concludes the death penalty is excessive in this case. The test for excessiveness is whether the crime and defendant are of the class or kind that warrant the death penalty.7

This case involves a trio of young men who set out to rob the victim of $35,000 she supposedly kept in a safe in her home. The three men drove to the victim’s home armed with a .22 caliber revolver and a shotgun. During the drive to the victim’s home Servin said that he “was going to shoot her if he had to.” Servin entered the house armed with the revolver.

The victim in this case, was paralyzed from her mid back down and required the use of a wheel chair. During the crimes, she suffered various abrasions on her neck and chest and a wound to the top of her head, which indicated that a sharp, slicing cut was made across the skin. She was shot once in the right shoulder, once in the right leg, and twice in the head. The shots to the head were contact wounds indicating that the muzzle of the revolver was in direct contact with the skin when the gun was fired. Testimony indicated that the first two shots, to the shoulder and leg, were non-lethal and that the victim was alive when the wounds were inflicted. There was testimony the bullets used in the shooting were dipped in either acid or mercury in order to make the victim suffer. The fatal two shots to the head were done execution style.

After the shooting Servin bragged about the crime and threatened to kill anyone who spoke about it. Servin stated “if anyone says anything, we’ll smoke ‘em.” When asked by his brother “[w]hy didn’t they just tie her up and then rob her. Why did they have to shoot her,’ ’ there was no response.

All of these facts reveal Servin’s sadistic mental state and desire to torture the victim. The case is certainly one where the defendant and the crime warrant the death penalty.

Accordingly, I would affirm both the judgment of conviction and the sentence of death.

State v. Hilbish Et. Al., 59 Nev. 469, 479, 97 P.2d 435, 439 (1940); State v. Streeter, 20 Nev. 403, 405-06, 22 P. 758, 759 (1889).

Streeter, 20 Nev. at 406, 22 P at 759.

Hilbish, 59 Nev. at 479, 97 P2d at 439.

NRS 176.025 reads:

A death sentence shall not be imposed or inflicted upon any person convicted of a crime now punishable by death who at the time of the commission of such crime was under the age of 16 years. As to such person, the maximum punishment that may be imposed shall be life imprisonment.

114 Nev. 783, 786, 961 P.2d 1279,1280 (1998).

Stanford, v. Kentucky, 492 U.S. 361 (1989).

Dennis v. State, 116 Nev. 1075, 1084-85, 13 P.3d 434, 440 (2000).