Court orders new penalty hearing for killer

By Cy Ryan (contact)

Thursday, Nov. 5, 2009 | 1:05 p.m.

CARSON CITY – Pedro Rodriguez, who once told his lawyers he didn’t want to appeal his death sentence for the killing of a woman confined to a wheelchair, will have a new penalty hearing.

The Nevada Supreme Court, in a 4-3 decision, ruled the defense attorney for Rodriguez didn't present all the mitigating evidence at the first trial. The court said complete evidence was not presented to the jury, including his dysfunctional family, the physical abuse he suffered and that he may not have been the shooter in the killing.

Rodriguez, who is now 31, Robert Servin and Brian L. Allen invaded the home of Kimberly Fondy in Sparks in 1998, believing there was $35,000 in a safe. The woman was shot twice in the head.

Servin, now 28, was once sentenced to death but the court reduced that in an earlier ruling to life in prison without the possibility of parole because there was a question whether he was the shooter.

Allen, now 29, pleaded guilty and was sentenced to two consecutive life terms without the possibility of parole.

Prior to his sentence Rodriguez told his lawyers he did not feel sorry for what he had done and told them not to appeal. A death penalty carries an automatic appeal. And Rodriguez was denied in his first appeal.

In his second appeal, a majority of the court said only one witness testified in mitigation during the penalty hearing. The court said the defense lawyer failed to present evidence that the stepfather of Rodriguez beat and kicked him every day and forced the boy to steal for him to support a drug habit. Rodriguez was locked in a closet with other children and was not fed for days at a time.

The dissenting justices said the evidence that not presented at the penalty hearing was “in the same vein” as other testimony that the jury heard. They said although Rodriguez may not have been the shooter, he “knew and selected the victim, orchestrating the robbery that led to her murder.”

Chief Justice James Hardesty, who wrote the dissent, said he was not convinced that the additional evidence to be presented at a new penalty hearing would change the outcome.

Joining with Hardesty were Justices Kristina Pickering and Ron Parraguirre.

After killing the woman, the three rifled the safe but there was no money.

There are presently 82 men on death row and the last execution was in April 2006.