Dead of Night (24 page)

The next claim made in the response was that Biela’s attorneys felt there was not enough evidence for conviction on the Amanda Collins case because her identification of him as her rapist was “suspect.” Nothing was said in Biela’s opening brief that the identification had been wrong, but because it was referred to as “suspect,” and therefore there was reason for cross-examination, the jury should not have heard the evidence at all, claimed the brief.

That is not the correct standard in any court,
the response said.
Since Amanda pointed out Biela in court and swore that she recognized him as the man that raped her, the evidence is sufficient.

The next series of issues addressed in the response dealt with the arguments in the opening brief that had to do with juror questions, with the brief saying that they must be considered as plain error. Biela’s attorneys first argued that even though the defense wanted jurors to have the opportunity to be active participants (by asking questions during the trial), the judge should have overruled the decision. The attorneys next said that Biela’s conviction must be reversed because the judge did not caution the jurors not to put too much weight on their own questions.

The attorneys stated that the court should rule that the weight to ascribe to evidence depends on the nature of the evidence, not on the identity of the person asking the question that leads to the evidence. The court should get out of the deliberations business and simply tell jurors to consider all the evidence, collectively evaluate the evidence, and seek a unanimous decision. The rest, the attorneys said, is up to the jury.

The opening brief’s next argument had been that the sheer volume of juror questions was excessive. The state contended, in contrast, that fixing an absolute number of allowable questions prior to the trial would be an abuse of discretion.

It would be irrational for a trial judge to just pull a number out of the air and limit the questions to that number, without even knowing the subject matter,
the state said.

The response then said that the district court did not err in denying the defense’s motion for a mistrial because of the question posed by a juror concerning Biela’s attempt to purchase a gun. During the trial, Amanda Collins had testified that she had been raped at gunpoint. Then, later, Detective Jenkins testified that Biela had attempted to buy a gun and was suicidal. One of the jurors had asked about the apparent conflicting facts that Biela had a gun at the time of the rape and then had been attempting to buy one later. The defense did not object at that time; but the following day, it moved for a mistrial, saying that the juror had obviously predetermined Biela’s guilt on count 1, Amanda Collins’s rape. The next day, the judge asked the juror if that had been the case, and she said it was not. Then, the day after that, the motion for a mistrial was denied. In the opening brief, the appeal attorneys said that a mistrial should have been mandatory; and the state, in its response, disagreed.

The premise of a mistrial, said the state, was faulty. The opening brief claimed that the question revealed that the juror had already made up her mind that Biela was guilty, and the juror denied that this was the case. The second flaw in the brief, said the state, was the fact that the judge had inquired into the possibility of predetermined guilt, and the juror denied it. The defense did not ask any further questions at that time, but now seemed to think that the judge should have determined the juror was lying. Since this was required by no rule of law, the state said the court should find that the district court did not err in concluding that no further action was necessary. The court should find no error in the district court’s failure to declare a mistrial.

Chapter 30

On the matter of the characterization of websites, photos, and other materials as “pornography,” and other similar terms, prior to the trial, the judge had ruled that the jury could see examples of the websites, but the above terms could not be used in describing them. In his opening statement, the prosecutor had used the term “adult” in a description. Biela’s appeal attorneys argued in their opening brief that the conviction should be set aside because they claimed the prosecutor had violated the ruling.

The state contended that the alleged error involved the authority of the judge, not the evidence code. The leap to the conclusion that Biela had any remedy coming did not seem to be warranted, the state said, adding that there was nothing in the evidence code that allowed the district court to regulate the terminology used in opening statements by the prosecutor. The state claimed that the gag order itself was an error. Instead,
the proper course is to recognize that when counsel predicts in opening statements that the websites will be “adult” sites, he assumes the risk that the jury will disagree. Such a tactical decision, however, is not an appropriate concern of the district court,
the state contended,
and the district court should not have attempted to regulate the rhetoric of the prosecutor. When viewed under the guise of plain error, there is no presumption of prejudice.
The state said that the party asserting plain error has the burden of explaining that there is no other explanation for the verdict than that single word in the opening statement.

Another point of contention in the opening brief was that a witness had testified that the websites showed “adult women wearing thong underwear.” The state responded that was not a violation of the order, because it did not prohibit mentioning that the models on the sites were adults, as opposed to children.

The opening brief also argued that Biela was entitled to have his conviction reversed because a witness also mentioned the nature of the evidence. A detective testified that the person who called in the Secret Witness tip said Biela had been looking at “pornographic” sites. The state responded that no relief was warranted because the district court did not have the authority to regulate the testimony of witnesses who were relating the words of others, for that would give the court the authority to command the witness to commit perjury. If the court had ordered the witness to use another word, that would have been a gross misuse of discretion.

The state said that if the court had the authority to “regulate the rhetorical excess” of lawyers, that did not extend to witnesses, and if the judge had told the witness how to testify, that would have been error. The testimony described the statement of an informant, the state said, and was admitted to show the progress of the investigation, not for the truth of the matter asserted.

The district court judge had noted that the detective had merely told the jury what the informant had said to him; therefore, the detective did not violate the order with his testimony. Therefore, the court should find that if the defense had sought any relief, it would not have been error if the judge had denied that request, the state said.

 

 

The appeal attorneys had next taken issue with the standard definition of a reasonable doubt. The state countered by pointing out that the reasonable doubt instruction had been repeatedly approved, and Nevada’s standard definition was not contrary to constitutional standards. Accordingly, the state said, the court should affirm the judgment of the district court.

 

 

The opening brief had next addressed the issue of what it referred to as cumulative error. The simple response, said the state, was that there was no error. The state pointed out that an analysis of cumulative error should only include errors leading to the same remedy. It is inappropriate, for example, to combine a claim of insufficient evidence with a claim of admission of improper evidence, because the remedies for each are different.

The next item of contention was the instructions given to the jury in the penalty phase.

The state contended that there was error, but not the error asserted by Biela. The instructions to the jury made it clear that, even if the defendant is eligible for the death penalty, any one juror can prevent the death penalty by simply deciding not to impose it.

Each juror was informed that they individually have the discretion to prevent the death sentence for any reason or for no reason at all,
the state said.

Finally the state pointed out that the defense had specifically denied having any objections to the instructions.

As the net effect of the instructions would work to the benefit of the defense, this court should find no “plain error” and certainly no specific prejudice to the defendant,
the response said.
Thus, the judgment should be affirmed.

 

 

The last argument in the response concerned the opening brief’s claim that Biela’s verdict was the product of passion or prejudice. The record, the response said, did not support that contention. The basic contention seems to be that
if
this murder was a felony murder, a kidnapping and rape that went wrong and resulted in an accidental death, the state said, then the death penalty would be excessive. The state contended that first, kidnapping and rape are not generally seen as mitigating circumstances; and, second, that the verdicts reveal that Biela intentionally murdered Brianna Denison by strangling her with some sort of garotte, possibly with her own underwear. Therefore, the premise underlying the argument was legally flawed and factually incorrect.

The state continued to say that the jury was not considering the hypothetical case of a kidnapping and rape followed by an accidental death, but the actual case of a kidnapping and rape coupled with a premeditated murder. The jury was not required to ignore its own factual finding that this case consisted of a premeditated murder and a separate kidnapping and rape.

Another premise of the opening brief was their contention that the jury had been influenced by pretrial publicity. The response answered that the jury selection process was part of the record, and all parties had been satisfied at the end of the process that the jurors would not be influenced by the publicity.

Again,
the state said,
the premise is flawed.

Finally the opening brief had contended,
This is but an ordinary run-of-the-mill first-degree murderer.

In responding to that contention, the state drew again on some of the earlier statements from other court documents, with its response that the jury, representatives of the conscience of the community, seem to have disagreed. Perhaps it was because of the evidence that Biela was a serial rapist who then graduated into murder, said the state, adding that it seemed most likely that the community avoided a serial killer only because the authorities were able to catch the killer before his next graduation ceremony.

 

 

The conclusion of the state’s response to Biela’s opening brief said that there were errors in this trial, as there are in every trial, but they uniformly favored the defendant as the trial court bent over backward, even going so far as to regulate the rhetoric of counsel. The state said that there was no error affecting any of Mr. Biela’s rights, and so the judgment of the district court should be affirmed.

This was submitted on July 20, 2011.

Chapter 31

On September 2, 2011, Biela’s appellate attorneys filed his Argument in Reply, an answering brief to the state’s response, saying that it was addressing only some of the answering arguments made by the state, and that it should not be taken as a concession of the legal merits of those arguments it did not address:

 

 

Starting with the trial, the first issue addressed was abuse of discretion, with the district court failing to sever the three cases into separate trials. In the opening brief, it was claimed that in order for the cases to be tried together, they must be connected together, or be part of a common scheme or plan.

The Argument in Reply said that the state appeared to have abandoned the argument that these separate acts were part of a common scheme or plan and focused solely on whether the acts were “connected together.” Therefore, it said, Mr. Biela requested that this court deem the abandonment of the argument as a concession by the state that the common scheme or plan basis for refusal to sever charges was error.

The reply said that the fact of the matter was that the cases should not have been joined; the opening brief had spelled out the similarities and differences between the three cases and had shown that they were not connected together. It claimed that under the abuse of discretion standard, the district court had abused its discretion as shown in the opening brief.

Also addressed in the reply was the fact that the judge had, prior to the trial, confused the DNA evidence between two of the cases, and had admitted that he had been confused about it. The reply said it could not be assumed that an experienced jury, hearing the evidence one time, would somehow do a better job than the judge of keeping the facts straight. The reply said that while the state suggests that the only way to make this claim of prejudice was to show that a
juror
was confused and not the judge, the reply claimed that the state then again runs up against the fact that jurors are not permitted to impeach their verdict and therefore a defendant could never show proof that a juror was confused by the evidence.

The reply went on to say that while the state might prefer such an impossible standard, the Constitution did not. The district court erred in refusing to sever the charges because the cases were not “connected together.” This error, the reply claimed, wreaked substantial and injurious effect upon Mr. Biela, both by the confusing nature of the DNA evidence and the combination of the weaker case with the two stronger ones.

The reply contended that Biela’s convictions should be reversed and the matter remanded for three separate trials: one for the charges involving Amanda Collins, one for the charges involving Virgie Chin, and one for the charges involving Brianna Denison.

The reply also claimed that Amanda’s credibility had been destroyed because there was no physical evidence in her case, and her identification of Biela as her assailant was suspect. It stated that Amanda had destroyed all the direct evidence of a sexual assault after it had occurred, did not report the rape when it occurred, and that she had stated, when she did report it, that she did not get a good look at her attacker’s face. When she did report the rape, the reply said, the police had sought a connection between her assault and Brianna’s investigation. She later helped police create a likeness of her rapist, which was used in Brianna’s case.

According to the reply, this participation caused Amanda to become invested in the Brianna Denison arrest. Due to having convinced herself completely that the man she saw arrested and taken into custody for Brianna’s murder was the same man who had raped her, Amanda’s subsequent identification of Biela as her assailant was a foregone conclusion.

The reply stated that Biela asked this court, as a matter of law, to find that Amanda Collins’s identification of Mr. Biela as her assailant could not be pried from her investment in the Brianna Denison case, thereby rendering her in-court identification “incredible” and not reliable. As such, the reply said, the remaining evidence was far too thin to support the conviction on count 1 and the court, therefore, must grant the relief requested by Biela. The court must reverse the jury’s verdict, the reply said.

 

 

The reply then tackled the issue of jury questions, saying that the district court’s decision to allow the questions was subject to plain-error review. The state had missed the mark in its contentions regarding juror questions, or else failed to respond meaningfully to the issues on appeal, the reply said, adding that jury questioning was presumptively disfavored and therefore never appropriate as a matter of course.

This was followed by several pages listing a large number of references to prior state supreme court decisions regarding jury questioning in various situations and degrees.

 

 

The next point in the reply addressed what it called the state’s failure to refute error associated with the district court’s untimely undue-weight admonition.

According to the reply, while the state agreed that this jury was admonished regarding undue weight only once, and only after the jurors had asked a third of their questions, the reply said that it appeared to assume without explanation that this admonition was nonetheless sufficient because it took place well before the time came for the jury to deliberate. At this point, the reply also repeated its criticism of the amount of jury questions that were permitted during the trial, saying that the state’s argument in regard to that excessiveness was “non-responsive.”

 

 

Then the reply addressed the issue of references to “pornography,” saying that the prohibited reference to pornography required a mistrial, and therefore required reversal. This referred to the hearsay contents of the Secret Witness Program informant’s tip, which the state had claimed provided progress of the investigation. The reply said it was unnecessary to provide sequential progress, because the same informant also had provided the suspect’s name and description, and the information that panties had been found in his truck. Not only was the information that he had been looking at “pornographic sites” unnecessary, it did nothing to lessen its prejudice, the reply said. The state claimed the defense denied that the pornography reference was prejudicial, but the reply said this was wrong. While the defense conceded that the reference was not intentionally made, the reply said that it never made any concession about prejudice.

The state’s contrary recollection is notably not supported by any citation to the record, and should be rejected,
said the reply.

 

 

The question of reasonable doubt was addressed next, with the reply stating that the definition of “reasonable doubt” was a misplaced and misleading analogy and should be abandoned by the legal system. The reply said that it was respectfully submitting that the court should take a fresh look at Nevada’s instruction of reasonable doubt. Equating reasonable doubt to doubt that would govern or control a person in the more weighty affairs of life, the reply said, should be abandoned as a legal definition.

The reply continued, saying that the court should require that the Federal Judicial Center’s reasonable doubt instruction should be given in its place, instead, in order to keep there from being any uncertainty or confusion in the jurors.

 

 

Addressing items at issue in the penalty phase of the trial, the reply said that the jury was, on two occasions, incorrectly instructed that it had to find the mitigating circumstances outweighed the aggravating circumstances “beyond a reasonable doubt.” This was clear error, requiring that the death penalty imposed in the case be vacated, the reply said. It claimed that the jury had been improperly instructed that the death penalty was an eligible penalty if they could not find that the mitigating circumstances outweighed the aggravating circumstances beyond a reasonable doubt. That step, under that standard of proof, can never be part of a jury’s death penalty calculus in Nevada, the reply stated. By making it so in this case, these instructions unnecessarily interfered with the jury’s penalty deliberations. The reply said that this instructional error required either a new penalty hearing or an order vacating the death penalty, with instructions to impose a sentence of life without the possibility of parole.

The reply next dealt with the appellate attorneys’ argument that the death penalty in the case was excessive, considering both the crime and the defendant.

According to the reply, the court should review a death penalty to determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and whether the sentence of death was excessive, considering both the crime and the defendant. In response, said the reply, the state contended only that the record did not support the notion that the verdict was the product of passion or prejudice.

The reply then claimed that the state had gone on to undermine its own position by its statement in the response, when it said the community avoided a serial killer only because law enforcement was able to catch the killer before his next graduation ceremony.

The reply said that the passion in that narrative was apparent, and operating under that premise, the jury had imposed the death penalty. Therefore, it said, the court should vacate the death penalty as being excessive. For the reasons set forth in the opening brief and in the reply, it said, the court should conclude that this case was one in which the jury’s penalty decision was imposed under the influence of passion. The court should not review the record myopically, it said, and, therefore, the court should also conclude that the sentence of death imposed in this case was excessive, given the circumstances of the murder and Mr. Biela.

This was submitted on September 11, 2011.

Sadly, Judge Robert H. Perry did not live to see the Nevada Supreme Court issue its final ruling in the Biela case. On December 20, 2011, he lost a lengthy battle with heart disease and passed away at the age of sixty-eight.

Judge Perry was perhaps best known for presiding over the Biela trial, but prior to being appointed to the bench in 2005, he had worked for twenty-nine years as a successful plaintiff’s attorney and was voted “Trial Lawyer of the Year” by Nevada in 2004.

 

 

Almost a year of orders, motions, notices, and updates followed, passing back and forth between the appellant, the respondent, and the court. On August 1, 2012, the Nevada Supreme Court filed an order of affirmance, upholding the death sentence that had been imposed on James Biela.

The order began with a recap of the case against Biela: the testimony and evidence involved, the results of the trial, the penalty phase, and the sentencing.

Biela raised claims related to severance, sufficiency of the evidence, guilt phase jury instructions, the alleged prejudicial impact of juror-initiated questions, and penalty phase weighing of aggravating and mitigating circumstances.
For the reasons explained below, we reject his claims and affirm the judgment of conviction,
the order said.

According to the order, Biela claimed that the district court erred in denying his pretrial motion to sever the counts related to each victim. He contended that the three crimes were not connected together, and did not consist of a common scheme or plan, and that the joint trial was prejudicial to him.

We disagree,
the order said.

Biela claimed that because the crimes were committed in different places, at different times, and against different victims in different ways, there was no evidence of a plan. The district court, however, noted that the victims were all college-aged women and the crimes were committed within a mile of the UNR campus, within four hundred yards of each other, late at night or in the early morning. Each was a sexual assault with violence and threat of future violence, and each victim’s underwear was taken. The district court agreed with the state that these facts were similarities, not differences, and showed escalation, and therefore of purposeful design.