High court says defendants can’t decide witnesses

Thursday, Jan. 17, 2002 | 9:26 a.m.

CARSON CITY -- The Nevada Supreme Court has ruled that defendants in criminal trials cannot tell their attorneys which witnesses to call or not to call.

The court said there is a "well established rule" that the defense lawyer "alone is entrusted with decisions regarding legal tactics such as deciding what witnesses to call."

The 5-2 decision Wednesday upheld the first-degree murder conviction and death sentence of Kelly E. Rhyne, found guilty of the fatal beating of Donald "Lobo" Brown in Elko in October 1998.

The dissent, written by Justice Nancy Becker, said the death penalty should be reduced to life in prison without the possibility of parole because of Rhyne's mental illness and the softer treatment given a co-defendant.

At the trial Rhyne and his lawyer had a disagreement whether to call a witness. Rhyne wanted the testimony while his lawyer objected, suggesting it would backfire.

District Judge J. Michael Memeo tried to resolve the dispute and ruled that Rhyne should be able to call the witness.

In his appeal to the Nevada Supreme Court, Rhyne, through his attorney Matthew Stermitz of Elko, said Memeo should not have allowed the defendant to direct the actions of his trial attorney or should have canvassed him regarding his right to represent himself.

The court, in the majority opinion written by Chief Justice William Maupin said Memeo should not have intervened.

Maupin said the defendant can make certain fundamental decisions, such as whether to present a defense of not guilty by reason of insanity. "However, with few exceptions, the means of representation, i.e., trial tactics, remain within counsel's control," the chief justice said.

Maupin also wrote that Rhyne was mentally competent at the time of the murder and during his trial. The jury found two mitigating circumstances based on Rhyne's mental problems.

Becker, with Justice Bob Rose concurring, said the death penalty was excessive in this case. Becker noted co-defendant James Mendenhall was allowed to enter a plea to second-degree murder and conspiracy to commit murder. Mendenhall also testified for the state.

There "is no reason for disparate treatment between these two equally culpable murderers," the justice wrote.

Becker also said the jury found that Rhyne committed the murder while under extreme mental or emotional disturbance and that Rhyne suffered a serious mental disorder.

She said Nevada's laws and mental health system are not designed to deal with individuals like Rhyne.