Rippo v. State

Citations: 946 P.2d 1017; 113 Nev. 1239; 1997 Nev. LEXIS 139Docket: 28865

Court: Nevada Supreme Court; October 1, 1997; Nevada; State Supreme Court

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Michael Damon Rippo was convicted of two counts of first-degree murder, one count of robbery, and one count of unauthorized use of a credit card, receiving two death sentences for the murders. The case stemmed from the discovery of the bodies of Denise Lizzi and Lauri Jacobson in Jacobson's apartment on February 20, 1992. Evidence collected included a clothing iron, a hair dryer with severed cords, and glass fragments. 

Diana Hunt, Rippo's girlfriend at the time, was arrested and agreed to testify against him as part of a plea deal. She recounted events leading to the murders, stating that Rippo and Jacobson used morphine together before Rippo planned to rob Lizzi. After Jacobson exited the bathroom, Hunt struck her with a bottle, allowing Rippo to attack Lizzi with a stun gun. Rippo bound both women with cords and gags, and despite a friend of Jacobson knocking at the door, he prevented them from answering. Hunt witnessed Rippo choking Lizzi and later cleaning the apartment and removing items to destroy evidence, including Lizzi's clothes, which he claimed were stained with his blood. The court concluded that Rippo received a fair trial and upheld the convictions and sentences.

Rippo contacted Hunt and asked her to meet at a friend's shop, where he revealed he had stolen a maroon Nissan car for her, which Hunt believed belonged to Lizzi. The next day, Hunt and Rippo used a gold Visa card to buy sunglasses, and Rippo mentioned purchasing tools with a Sears credit card. Feeling frightened and wanting to escape, Hunt searched Rippo's wallet for money and took a Visa card belonging to Denny Mason, Lizzi's boyfriend, though she did not know him. On February 29, Rippo threatened Hunt, boasting about having killed two women, Lizzi and Jacobson. Medical examiner Dr. Giles Sheldon Green testified that both women had died from strangulation; Lizzi had a sock gagging her, and Jacobson showed no signs of drugs or stun gun marks. Thomas Simms, the shop owner, testified that Rippo had come to the shop with the stolen Nissan and had given him items belonging to the victims. Simms recalled Rippo admitting to the murders when they met later. On September 15, 1993, during a search warrant execution at Alice Starr's home, officers found drugs and arrested her. Starr corroborated the officers’ account of the search, stating they only drew their guns when she appeared. Deputy District Attorneys Lukens and Lowry expressed concern over Starr’s previous statements about Rippo and cautioned her about potential consequences. Following a defense motion, the district court disqualified Lukens and Lowry from the case due to their involvement in the search.

Rippo was found guilty of two counts of first-degree murder, one count of robbery, and one count of unauthorized use of a credit card. The jury sentenced him to death after identifying six aggravating factors related to the murders, including prior imprisonment, previous felony convictions involving violence, and the commission of robbery, torture, burglary, and kidnapping during the offenses.

The defense sought the disqualification of District Judge Gerard Bongiovanni due to his involvement in a federal grand jury investigation, arguing potential bias stemming from media pressure. According to NCJC Canon 3E, a judge must disqualify themselves if their impartiality could reasonably be questioned. However, the burden of proof rests on the party challenging the judge's impartiality, requiring factual grounds rather than speculation. 

In this case, Rippo's claims of bias were deemed unsupported by evidence, as there was no indication that the State was involved in the investigation or that Judge Bongiovanni was under pressure to favor the State. The court concluded that there were no legally sufficient grounds for disqualification.

After the trial, Rippo argued that new information about Judge Bongiovanni's relationship with Denny Mason's business partner, linked to the case, warranted a new trial. However, the defense did not establish that Judge Bongiovanni had any obligation to disclose this relationship, nor was there evidence suggesting it affected the trial's outcome.

Judge James A. Brennan denied Rippo's motion for a new trial, which was based on two main contentions: (1) Judge Bongiovanni's failure to disclose his relationship with a third party, and (2) the claim that the appearance of impropriety warranted a new trial. The legal standard requires judges to disclose relationships that could reasonably be seen as relevant to disqualification, per NCJC Canon 3E, Commentary. While a relationship may be relevant, in this instance, there was no evidence that Judge Bongiovanni had any significant connection to Denny Mason or his business partner, aside from Rippo's unsupported allegations. Previous case law, such as Jacobson v. Manfredi and State v. Carroll, supports that the absence of a proven bias does not necessitate recusal. Therefore, Judge Brennan's decision was upheld as not an abuse of discretion.

Additionally, the State's motion to amend the indictment to include charges of felony murder was initially denied by the district court but later granted by a writ of mandamus. Rippo's challenge against the amendment was dismissed, as it was deemed proper. 

Rippo also alleged prosecutorial misconduct regarding the late disclosure of new witnesses after he filed a notice of alibi. However, this was found not to be prejudicial to Rippo, and the State's actions did not imply intentional delay. Lastly, Rippo claimed that witness intimidation occurred, which could warrant a new trial if it violated his right to a fair trial, referencing precedents like State v. Owens and Webb v. Texas. However, no further details were provided to substantiate this claim.

The defendant's due process rights were violated when the trial judge suggested that a witness might lie and assured the witness of prosecution for perjury if he did. Additionally, a U.S. Attorney's comment implying the witness should invoke the Fifth Amendment infringed upon the defendant's rights to present defense witnesses. Prosecutors have a responsibility to avoid methods that could lead to wrongful convictions. While testimony from officers indicated no intimidation was intended, statements made by Lukens to Starr post-arrest could have been perceived as intimidating, though Starr did not feel threatened or coerced to change her testimony. Lukens and Lowry were later disqualified due to their involvement in Starr's arrest, leading to the conclusion that the prosecutors' actions did not amount to witness intimidation justifying a reversal.

During cross-examination of David Levine, a prison inmate, defense counsel revealed that Levine had been housed in a psychiatric facility for protection related to threats made against him in connection with the trial. On redirect, the State further inquired about these threats, which Levine acknowledged. The prosecution's suggestions of witness intimidation must be supported by credible evidence linking the defendant to such intimidation to avoid reversible error. In this case, defense counsel's questioning opened the door for the prosecution to rehabilitate Levine's testimony, justifying their inquiries into his credibility.

During closing arguments, the prosecutor asserted that Mr. Rippo had the opportunity to commit murder, emphasizing the absence of witnesses testifying to his alibi and pointing out that only Diana Hunt provided information about his whereabouts. The defense moved for a mistrial, claiming the prosecutor shifted the burden of proof to the defendant, which the court denied. Rippo contended that the prosecutor implicitly commented on his choice not to testify, which is generally viewed as improper and a potential burden shift. While the court recognized the prosecutor's comments could be seen as shifting the burden, it determined that any error was harmless due to overwhelming evidence of guilt. Additionally, the prosecutor made statements regarding Hunt's injuries and suggested reliance on jurors' recollections, which prompted defense objections regarding references to unpresented evidence. The court acknowledged these comments were improper but ultimately found the errors harmless in light of the substantial evidence against Rippo.

Rippo contends that the prosecutor improperly shared personal beliefs about the evidence, but the court found no prosecutorial vouching, as the prosecutor did not comment on witness credibility or express personal opinions regarding the evidence, rendering this argument meritless. Additionally, Rippo argued for the disqualification of the entire district attorney's office due to misconduct by disqualified prosecutors Lukens and Lowry. The court ruled that Rippo failed to demonstrate extreme circumstances necessitating such disqualification, as Lukens’ presence in court did not equate to involvement in the trial, and there was no evidence of improper conversations with witnesses after being admonished by the judge. 

Regarding alleged Brady violations, Rippo claimed that statements he made to witness Thomas Simms were not disclosed during discovery, which he argued warranted a mistrial. The State countered that Simms was a known witness, and the prosecution had learned of the statements shortly before trial. The district court denied the motion for mistrial both during and after trial, allowing additional time for the defense to prepare. On appeal, Rippo maintained that the State's failure to disclose the statements violated the standards set by Brady v. Maryland, which requires the prosecution to disclose favorable evidence material to guilt or punishment. The criteria for determining Brady material include whether the evidence was suppressed, its favorable nature for the defense, and its materiality to the case.

In Moore v. Illinois and Homick v. State, federal courts have established that a Brady violation does not occur if a defendant could have obtained the relevant information through reasonable diligence. Specifically, a Brady claim fails if the defendant had the means to acquire exculpatory evidence but did not do so. In the case at hand, the prosecution identified Simms as a witness and disclosed his grand jury testimony, which indicated that Simms had interactions with Rippo shortly after the murders. This fact should have alerted Rippo's counsel to the potential for incriminating or exculpatory evidence, and the defense was granted a two-week continuance to interview Simms and other witnesses. 

Furthermore, a statement made by Rippo, suggesting he would prefer a murder conviction over a sexual assault conviction, was deemed inculpatory and not exculpatory, negating a Brady violation. The State's open file policy allowed the defense to inspect files, ensuring no violation occurred regarding the non-disclosure of Saxon's statements. 

Regarding the introduction of other bad act evidence, the State sought to admit testimony about Rippo's use of a credit card belonging to one of the victims after the murders. This evidence was allowed following a Petrocelli hearing, which determines the admissibility of such evidence based on its relevance and potential prejudicial impact. The district court concluded the State met its burden of proof, and there was no abuse of discretion in admitting the evidence about the credit card use.

The trial court has discretion in admitting or excluding evidence of prior wrongs, crimes, or bad acts, particularly when such evidence is relevant to establish a defendant's connection to the victims and the crime scene, as well as to prove motive, such as robbery (NRS 48.045(2)). In this case, evidence of other crimes was deemed more probative than prejudicial, as supported by Armstrong v. State. 

During the trial, Thomas Simms testified about a statement made by Rippo regarding the victims, which implied prior sexual conduct. Rippo's defense did not object to this testimony, leading the court to decline to consider Rippo's argument on appeal, as failure to object typically bars such consideration (Garner v. State).

Rippo also contested testimony from a jail inmate about drug transactions, but the court found the testimony insufficiently specific to suggest Rippo was actively selling drugs in jail. Other testimonies had already established Rippo's drug involvement, rendering this argument unmeritorious.

Regarding prosecutorial conduct during the penalty phase, the prosecutor's use of terms like "horror" and "horrendous" to describe Rippo's actions was evaluated in context, and the court concluded that these statements did not undermine the fairness of the trial. The prosecutor's comments were aligned with the evidence presented, and the jury was instructed to rely on the evidence rather than the attorneys' arguments. Additionally, Rippo's objection to the prosecutor's labeling him as "evil" was not raised during the trial, precluding appellate review.

In the closing argument of the penalty phase, the prosecutor emphasized the need for society to express moral outrage and impose severe penalties to deter future crimes, reinforcing the message that the justice system would not tolerate such actions.

Defense counsel objected to the prosecutor's statements, arguing that they improperly urged the jury to impose the death penalty to send a societal message. However, the court found that these statements were justifiable as explanations of the rationale for the death penalty, citing prior cases that allow prosecutors to discuss penological theories, including punishment and deterrence. The admissibility of victim-impact testimony during the penalty phase is largely at the trial judge's discretion, and a jury may consider such evidence regarding the victim's character and the emotional effects of the murder on their family. 

Five witnesses testified about the victims' character and the impact of their deaths, and the court determined that this testimony was neither cumulative nor excessive. Although some witnesses described the brutal nature of the crime, which the State had initially sought to limit, the court acknowledged that the brutality contributed to the emotional suffering of the victims' families, thereby making the statements relevant to the defendant's moral culpability. 

Additionally, the court ruled that the testimony of Orell Maxwell was pertinent to the jury's sentencing decision, noting that defense counsel did not object to Maxwell's testimony or the statements made until after all witnesses had testified, indicating a lack of timely objection to the proceedings.

The district court did not abuse its discretion by admitting the testimony of a second witness, as the defense did not object immediately and failed to demonstrate any prejudice. Regarding jury instructions, Rippo claimed that the court's anti-sympathy instruction infringed on his constitutional right to present mitigating evidence. However, the court properly instructed the jury to consider mitigating factors, rendering this argument without merit. 

Rippo contested the sufficiency of evidence supporting the aggravating circumstance of torture as defined in NRS 200.033(8). The State presented testimony from Hunt and Dr. Green, detailing acts that suggested torture, including physical assaults, the use of a stun gun, and the tying and dragging of victims. Dr. Green confirmed the nature of the victims' injuries and the manner of death, supporting the State's assertion of torture based on the prolonged and brutal nature of the attacks.

However, the court's definition of torture required that the acts causing death must involve a high probability of death and be committed with intent to inflict cruel pain and suffering. The jury was instructed that torture must be the means of killing, and evidence presented primarily focused on attempts to strangle the victims, which alone did not meet the criteria for torture. The jury's instruction emphasized that the torturous acts must also be the cause of death, aligning with the statutory definition.

Murder by torture necessitates that the perpetrator's actions are the cause of the victim's death. In this case, the victims were not killed by a stun gun, and even if the stun gun was used sadistically, it does not meet the strict definition of murder by torture under NRS 200.030. However, there is evidence supporting a finding of murder by means of torture due to the intentional infliction of pain being integral to the murders. Acts of torture cannot be isolated from their context; rather, the overall pattern of sadistic violence constitutes the torture. The defendant, Rippo, used the stun gun to cause pain and terror, indicating sadistic intent. Despite the stun gun not causing death, the combination of strangulation, restraint, and the use of the stun gun demonstrates a continuum of violence justifying a finding of murder by torture.

Regarding aggravating circumstances, NRS 200.033(4) does not require prior charges for a crime to be used as an aggravating factor. The court established that Rippo was notified of burglary and kidnapping as aggravating factors in the amended notice seeking the death penalty. Therefore, the lack of formal charges for these crimes did not preclude their use as aggravating circumstances. The court confirmed that each underlying felony could be prosecuted separately and appropriately considered for aggravation.

The court also reviewed whether the death sentences were influenced by passion, prejudice, or arbitrary factors under NRS 177.055(2). The jury found five valid aggravating circumstances without any mitigating factors, leading to the conclusion that the death sentences were justified and not excessive. Consequently, the convictions for two counts of first-degree murder, one count of robbery, one count of unauthorized use of a credit card, and the two death sentences were affirmed.

Judge Bongiovanni's disqualification in this case would necessitate disqualification in all criminal cases he presided over during the federal investigation, a result deemed unacceptable. The Commentary to the Code of Judicial Conduct serves to interpret the Canons and Rules but does not introduce new rules. Rippo's request for a remand for an evidentiary hearing concerning the State's involvement in the federal investigation and Judge Bongiovanni's connections was rejected, as mere allegations do not justify such a hearing without factual grounds for a reasonable inference of a conflict of interest. The record shows that Starr did not testify for either side during the trial. 

Two errors identified during the guilt phase included the prosecutor referencing evidence not presented and commenting on Rippo's failure to call a witness. However, it was concluded that these errors would not have altered the jury's decision, thus Rippo's claim of cumulative error was dismissed. Although Rippo alleged discovery violations, he did not substantiate this with authority on appeal, focusing instead on a Brady claim, which was also addressed. The court noted there is no constitutional requirement for the prosecution to provide a full accounting of police investigatory work. 

Testimonies included statements about a car's origin and a request from Rippo for money to leave town, leading to objections and the cessation of certain questioning by the State. Testimonies from family members of victims described the traumatic impact of the murders, expressing deep emotional distress over the brutal circumstances of their deaths. The prosecution was found not to have suppressed evidence that would constitute Brady violations and thus the materiality of those statements was not further examined. Rippo faced charges specifically related to unauthorized use of Denny Mason's gold Visa card.