Prosecutors were so upset by part of the Nevada Supreme Court's ruling in a death case last year they asked for reconsideration, even though the court upheld the death sentence for Robert L. McConnell.
But the court again knocked them down, essentially chastising the Washoe deputy district attorney who filed the petition for not reading the defense documents in the case.
McConnell was convicted of shooting a Reno man who was dating his ex-girlfriend. His appeal was rejected but, in the December opinion, the court ruled that in most cases, the same felony used to raise the case to a first-degree murder cannot also be used as an aggravating circumstance to justify a death sentence.
Deputy Washoe District Attorney Terrence McCarthy demanded a rehearing, saying the court violated due process in the opinion because he was never given notice or opportunity to be heard. He said McConnell's lawyers never raised the issue. His petition also complained his reputation was "falsely besmirched" for not responding to cases and other arguments that were never made by McConnell's lawyers.
The five remaining members of the court involved in that hearing this week not only rejected the petition for rehearing, but said McCarthy was incorrect in his accusations.
The opinion points prosecutors to "page three of the state's own petition" where the table of contents to McConnell's brief in the case argues the burglary should not be used both as the underlying offense in a felony murder case and as an enhancing offense. It cites that argument in McConnell's brief.
The opinion also says prosecutors are wrong in claiming specific cases mentioned in the opinion were never mentioned by McConnell - again pointing out exactly where they are in the defense briefs.
McConnell pleaded guilty to murder and burglary in the death of Brian Pierce, shooting him 10 times and stabbing him three times. Nevada law states that murder during commission of a felony - the burglary - constitutes first-degree murder. But the burglary was also used to justify a death sentence.
Chief Justice Nancy Becker and Justices Bob Rose, Bill Maupin, Mark Gibbons and Michael Douglas voted to deny a rehearing of the issue, stating their analysis was correct and that the underlying felony used to elevate a killing to first-degree murder cannot also be used as an aggravator in seeking a death sentence.
- Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.
