                                                   132 Nev., Advance Opinion 40
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 SHAWN RUSSELL HARTE,                                  No. 67519
                 Appellant,
                 vs.
                 THE STATE OF NEVADA,
                                                                            FILED
                 Respondent.                                                JUN 0 2 2016


                             Appeal from a judgment of conviction, pursuant
                 verdict, of first-degree murder. Second Judicial District Court, Washoe
                 County; Connie J. Steinheimer, Judge.
                             Affirmed.

                 Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy
                 Public Defender, Washoe County,
                 for Appellant.

                 Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks,
                 District Attorney, and Terrence P. McCarthy, Chief Appellate Deputy
                 District Attorney, Washoe County,
                 for Respondent.




                 BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.

                                                  OPINION
                 By the Court, CHERRY, J.:
                             NRS 175.552(3) allows a district court judge broad discretion
                 to admit or deny evidence during a first-degree murder penalty hearing so
                 long as the evidence is relevant to the sentence, even if it would not be
                 admissible during the guilt phase of trial. We have previously held that a
                 district court does not abuse its discretion when it allows evidence of the
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                codefendants' sentences.   Flanagan v. State, 107 Nev. 243, 247-48, 810
                P.2d 759, 762 (1991), vacated on other grounds by Moore v. Nevada, 503
                U.S. 930 (1992). We reaffirm our holding in Flanagan, concluding,
                specifically, that the district court has discretion to admit evidence of a
                codefendant's sentence in a first-degree murder sentencing hearing.
                Furthermore, we conclude that Harte's challenge to the district court's
                ruling allowing the State to argue twice during closing arguments at the
                penalty hearing lacks merit. His contention that his sentence is excessive
                also lacks merit. We therefore affirm the district court's sentence in this
                matter.
                                  FACTS AND PROCEDURAL HISTORY
                            Appellant Shawn Russell Harte, along with two codefendants,
                was convicted of first-degree murder with the use of a deadly weapon and
                robbery with the use of a deadly weapon. During the course of the
                robbery, Harte shot and killed the victim. Harte was convicted of felony
                murder and received the death penalty. The fact that the murder was
                committed during the course of a robbery was the only aggravating factor
                to support the death sentence. Harte's codefendants were also convicted
                on the same charges but received life sentences without the possibility of
                parole. Harte previously appealed, but we affirmed his conviction and
                death sentence.
                            Subsequently, this court decided McConnell v. State, 120 Nev.
                1043, 102 P.3d 606 (2004) (holding that the same felony may not be used
                both to establish felony murder and as a capital aggravator), and Bejarano
                v. State, 122 Nev. 1066, 146 P.3d 265 (2006) (applying McConnell
                retroactively). Harte then filed a postconviction petition for a writ of
                habeas corpus challenging his death sentence under McConnell. See State
                v. Harte, 124 Nev. 969, 971, 194 P.3d 1263, 1264 (2008). The district court
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                 granted Harte's postconviction petition and vacated the death sentence.
                 We affirmed the district court's decision.     Id.   After a second penalty
                 hearing, a jury sentenced Harte to life in prison without the possibility of
                 parole. This appeal followed.
                                                 DISCUSSION
                 The district court was within its discretion when it admitted evidence of the
                 codefendants' sentences.
                             Harte argues that the district court erred by admitting
                 evidence of his codefendants' sentences because it deprived him of his
                 right to be sentenced individually. In this, he argues that the life-without-
                 parole sentences his codefendants received were influenced by his invalid
                 death sentence. Harte asks this court to issue an overarching rule that
                 evidence of codefendants' sentences is never admissible in a penalty
                 hearing.' The State argues that the decision to admit or deny such
                 evidence should be left to the discretion of the district court on a case-by-
                 case basis. We agree with the State.
                             Prior to the new penalty hearing, the parties filed competing
                 motions in limine. The State sought permission to introduce the
                 codefendants' sentences of life without the possibility of parole at Harte's
                 new penalty hearing. Harte sought to suppress that information. After
                 considering both parties' arguments, the district court granted the State's
                 motion and denied Harte's. The district court also ruled that the jury
                 would be instructed that it was not bound to sentence Harte based on the
                 sentences his codefendants received.



                       'Hart° does not argue that the district court abused its discretion,
                 but that the district court should not be allowed discretion in this matter.

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                            "The decision to admit evidence at a penalty hearing is left to
                the discretion of the trial judge." Nunnery v. State, 127 Nev. 749, 769, 263
                P.3d 235, 249 (2011). That discretion is not limited to death penalty
                hearings.   Id. at 769 n.7, 263 P.3d at 249 n.7. The district court's
                discretion in a first-degree murder penalty hearing is broad. Lisle v. State,
                113 Nev. 540, 557, 937 P.2d 473, 484 (1997). "An abuse of discretion
                occurs if the district court's decision is arbitrary or capricious or if it
                exceeds the bounds of law or reason."     Crawford v. State, 121 Nev. 744,
                748, 121 P.3d 582, 585 (2005) (internal quotations omitted).
                            At a penalty hearing, "evidence may be presented concerning
                aggravating and mitigating circumstances relative to the offense,
                defendant or victim and on any other matter which the court deems
                relevant to the sentence, whether or not the evidence is ordinarily
                admissible." NRS 175.552(3) (emphasis added). The district court must,
                however, exclude otherwise relevant evidence if it is impalpable, highly
                suspect, dubious, or tenuous. Parker v. State, 109 Nev. 383, 390, 849 P.2d
                1062, 1067 (1993).
                            A district court has discretion to admit or deny evidence of
                codefendants' sentences.   See Flanagan, 107 Nev. at 247-48, 810 P.2d at
                762. In Flanagan, the defendant and his codefendants were convicted of
                murdering the defendant's grandfather.       Id. at 245, 810 P.2d at 760.
                During Flanagan's penalty hearing, the State, with the district court's
                permission, presented evidence of the sentences that two of Flanagan's
                codefendants received. Id. at 247, 810 P.2d at 762. This court held that
                NRS 175.552 allows the district court to admit this type of evidence,
                particularly because the jury was instructed that it was not bound by the
                previous sentences. Id. at 247-48, 810 P.2d 762.

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                              Here, Harte asks this court to overrule Flanagan and adopt a
                 rule that a district court should never allow evidence of codefendant's
                 sentences. We decline to issue such a rule because each case has unique
                 facts and circumstances. The district court must be given the discretion to
                 determine if such evidence should be admitted.
                 The district court did not abuse its discretion when it allowed the State to
                 open and conclude the closing arguments
                              Harte also argues that the district court erred because the
                 mandate in NRS 175.141(5) that the State argue both first and last does
                 not apply in a penalty hearing. He also argues the mandate that the State
                 argue last as found in Schoels v. State, 114 Nev. 981, 966 P.2d 735 (1998),
                 does not apply here because Schoels was a death penalty case where the
                 State carried a burden of proof. He claims that because the instant case is
                 no longer a death penalty case, the burden no longer exists. We agree to
                 the extent that neither authority required the district court to let the
                 State argue twice in this case but conclude, nonetheless, that it is within
                 the district court's discretion to so rule.
                              A district court has wide discretion in many facets of trial
                 procedure in the absence of a rigid rule.     See, e.g., Manley v. State, 115
                 Nev. 114, 125, 979 P.2d 703, 710 (1999) (stating that the district court has
                 discretion to impose a two-hour time limit on closing arguments); Williams
                 v. State, 91 Nev. 533, 535, 539 P.2d 461, 462-63 (1975) (providing that the
                 district court has discretion to reopen evidence after each side rests); State
                 v. Harrington, 9 Nev. 91, 94 (1873) (stating that in the interests of justice,
                 a district court may deviate from traditional order of evidence
                 presentation).




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                              NRS 175.141(5) provides that, during a criminal trial, "When
                the evidence is concluded, . . . the district attorney, or other counsel for the
                State, must open and must conclude the argument." We have held that
                this rule extends to the penalty phase of a capital trial. Schoels, 114 Nev.
                at 989, 966 P.2d at 741. There is no caselaw or statute forbidding a
                district court from conducting a penalty hearing in a noncapital case in the
                same manner. Absent such a proscription, we cannot conclude that the
                district court exceeded the bounds of law or reason. Crawford, 121 Nev. at
                748, 121 P.3d at 585. Therefore, we conclude that the district court did
                not abuse its discretion when it allowed the State to start and conclude
                during closing arguments. The decision to set the order for closing
                statements in a noncapital penalty hearing is within the district court's
                discretion.
                Harte's sentence was not cruel and unusual
                              Harte argues that life without parole is an excessive sentence
                because he has spent his time in prison bettering himself and he is no
                longer the type of unsalvageable prisoner who should never have an
                opportunity for release. This court reviews death sentences for being
                excessive, see NRS 177.055(2)(e), but there is no statute authorizing such
                review for life sentences. Harte cites only to Naovarath v. State, 105 Nev.
                525, 526, 779 P.2d 944, 944 (1989), for the premise that a life without
                parole sentence should be reserved only for the "deadliest and most
                unsalvageable of prisoners." Although we do not review nondeath
                sentences for excessiveness, Harte's argument appears to be a cruel and
                unusual punishment challenge. We will respond accordingly.
                              Regardless of its severity, a sentence that is "within the
                statutory limits is not 'cruel and unusual punishment unless the statute
                fixing punishment is unconstitutional or the sentence is so unreasonably
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                  disproportionate to the offense as to shock the conscience."       Blume v.
                  State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting Culverson v.
                  State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979)); see also Harmelin v.
                  Michigan, 501 U.S. 957, 1001 (1991) (plurality opinion) (explaining that
                  "[Erne Eighth Amendment does not require strict proportionality between
                  crime and sentence [;] . .. it forbids only extreme sentences that are
                  'grossly disproportionate' to the crime" (citation omitted)). The sentence
                  imposed is within the parameters provided by the relevant statute, see
                  NRS 200.030(4), and Harte does not allege that those statutes are
                  unconstitutional. We are not convinced that the sentence imposed is so
                  grossly disproportionate to the crime as to constitute cruel and unusual
                  punishment.
                              Harte was previously sentenced to death in this matter. His
                  death sentence originally survived our appellate review. Only after this
                  court decided McConnell and Bejarano, which struck the only aggravating
                  factor supporting Harte's death sentence, did his death sentence become
                  illegal. A sentence of life without the possibility of parole, however, does
                  not require aggravating circumstances.       See NRS 200.030(4)(b). Life
                  without the possibility of parole is readily available as a sentence for a
                  conviction of first-degree murder. Id.
                              Harte's case is distinguishable from Naovarath.       Naovarath
                  was a "mentally and emotionally disordered thirteen-year-old child."       Id.
                  at 532, 779 P.2d at 949. Harte was an adult when he committed his
                  crimes. Additionally, Naovarath was the victim of sexual abuse
                  perpetrated by the decedent in his case.      Id. at 526, 779 P.2d at 945.
                  Harte killed a complete stranger without provocation. Because of these
                  distinguishing factors, the holding from Naovarath is inapplicable here.

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                            Finally, Harte's argument that he is a changed man is out of
                place in this proceeding. He was appropriately sentenced based on the
                crime he committed. Although evidence of Harte's rehabilitation in prison
                was presented to the sentencing jury, it ultimately decided that life
                without the possibility of parole was the appropriate sentence. We see no
                reason to substitute our judgment here. Because the jury imposed a
                sentence within the statutory limit, and that limit is constitutional, we
                conclude that Harte's sentence is valid.
                                              CONCLUSION
                            Accordingly, we order the judgment of conviction affirmed.



                                                   OCherry
                                                             tiL,(1


                I concur:




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                GIBBONS, J., concurring in part and dissenting in part:
                             I concur with the majority in part. The district court properly
                allowed the State to argue twice during closing arguments at the penalty
                hearing. I further concur that the sentence is not excessive.
                             However, I would revisit this court's holding in Flanagan v.
                State, 107 Nev. 243, 247-48, 810 P.2d 759, 762 (1991), regarding the
                admission of sentences of codefendants in the penalty phase of a first-
                degree murder hearing I agree with appellant that there should be a
                uniform rule for the district courts on this issue for all penalty hearings.
                Therefore, I would preclude allowing evidence of the codefendants'
                sentences.



                                                    Gibbons
                                                              CiClerL            , J.




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