Friday, March 25, 2005 | 9:12 a.m.
SUN CAPITAL BUREAU
CARSON CITY -- The Nevada Supreme Court Thursday denied the petition of district attorneys in the state to reconsider a ruling made in a death penalty case involving a Reno man.
The court said the motions by Clark and Washoe county district attorneys' offices and the state attorney general "failed to show that we overlooked or misapprehended any material points of law or fact in regard to the substance of our decision in McConnell."
Robert L. McConnell was sentenced to death for the fatal shooting of a Reno man who was dating his ex-girlfriend.
While upholding the death penalty in its original decision, the Supreme Court said that prosecutors cannot use a felony committed during the murder to bolster its claim for a conviction of first-degree murder and then use the same felony as an aggravating circumstance to justify the death penalty.
McConnell pleaded guilty to murder and burglary in the death of Bran Pierce, who was shot 10 times and stabbed three times. McConnell called the victim's mother and left a message on her answering machine, "Your son died like a coward."
The charge of burglary was used as an aggravating circumstance to bolster the prosecution case for the death penalty.
The court struck down the petition for a rehearing by Washoe County Deputy District Attorney Terrence McCarthy, who said he was never given proper notice or an opportunity to be heard on the issue of using a felony both for conviction and sentencing.
The court said the issue was addressed in McConnell's opening appeal brief that claimed a burglary aggravator was improperly used as a count to the underlying offense and as an enhancing offense.
The court also struck down the argument of McCarthy that the first opinion by the court never mentioned the state Constitution and was based only on federal law. It said it specifically identified the provisions of the Nevada Constitution in its original petition.
A "friend of the court" brief filed by the Clark County district attorney's office said the court overlooked the issue of whether or not the ruling was retroactive.
Clark County said it is currently prosecuting several cases that were remanded by the court for new penalty hearings and it is impossible to know now if the application of the decision is retroactive.
The court said, "Our case law makes clear that new rules of criminal law or procedure apply to convictions which are not final."
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