Motion to. relieve counsel 

Rodriguez argues that the district court erred in denying his 

motion to relieve counsel because counsel failed to negotiate for a better 

plea deal than had been offered by the State. He further argues that the 

district court's inquiry into his motion was inadequate and improperly 

conducted in front of opposing counsel. He also contends that the district 

court should not have forced him to waive his attorney-client privilege for 

the hearing and then continue to trial with the same counsel when the 

motion was denied. 

We conclude that the district court did not abuse its discretion 

in denying the motion to withdraw or discharge counsel. See Young v. 

State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004) (reviewing the "denial 

of a motion for substitution of counsel for abuse of discretion"). Despite 

his allegation of a conflict of interest, Rodriguez did not demonstrate that 

counsel's loyalty was compromised. Rodriguez and counsel disagreed over 

how to best obtain a favorable plea offer from the State. This difference of 

opinion did not rise to the level of a "complete collapse of the attorneyclient relationship." Id. at 969, 102 P.3d at 576. Further, as the State 

clearly indicated that there was no possibility of a more lenient plea offer, 

their disagreement was essentially moot. In addition, the district court's 

inquiry was sufficient to address the concerns raised by Rodriguez and 

counsel, as the district court addressed those concerns over several 

hearings and considered the statements of Rodriguez, counsel, and the 

district attorney. Rodriguez's waiver of his attorney-client privilege was 

necessary to determine the extent of the alleged conflict. The inquiry was 

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not broader than necessary to address the concerns over the plea 

negotiations, so it did not hinder Rodriguez's ability to litigate the penalty 

hearing. Therefore, the district court adequately inquired into the 

grounds for the motion to withdraw, Rodriguez's reason for seeking 

withdrawal was not meritorious, and the conflict did not prevent counsel 

from presenting an adequate defense or result in an unjust verdict. See id. 

(noting that this court considers `"(1) the extent of the conflict; (2) the 

adequacy of the inquiry; and (3) the timeliness of the motion" when 

reviewing a district court decision (quoting United States v. Moore, 159 

F.3d 1154, 1158-59 (9th Cir. 1998))). 

Juror challenge 

Rodriguez argues that the district court erred in denying his 

challenge to potential juror McFarlin. We disagree. McFarlin's initial 

statements indicated that (1) he believed that the death penalty was 

appropriate for more than just murder cases and (2) death was the 

appropriate sentence for murder and it was the role of the defense to prove 

otherwise. Nevertheless, he acknowledged that he could listen to the 

evidence and follow the instructions of the district court and the district 

court instructed him to not presume that death is the appropriate penalty. 

While McFarlin expressed strong feelings about the use of the death 

penalty, the trial court's assessment of the juror's state of mind is entitled 

to great deference. Walker v. State, 113 Nev. 853, 865, 944 P.2d 762, 770 

(1997) (recognizing that when a "prospective juror's responses are 

equivocal, i.e., capable of multiple inferences, or conflicting, the trial 

court's determination of that juror's state of mind is binding." (quoting 

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People v. Livaditis, 831 P.2d 297, 303 (Cal. 1992))). Therefore, Rodriguez 

did not demonstrate that the district court abused its discretion in denying 

his challenge for cause. Weber v. State, 121 Nev. 554, 580, 119 P.3d 107, 

125 (2005). Moreover, although Rodriguez was compelled to use a 

peremptory challenge to exclude McFarlin, we held in Blake v. State that 

"the fact that a defendant had to use a peremptory challenge to achieve 

that result does not mean that the defendant was denied his right to an 

impartial jury," where the jury actually seated was impartial. 121 Nev. 

779, 796, 121 P.3d 567, 578 (2005). Rodriguez does not allege that any 

juror actually empanelled was unfair or biased, and while he encourages 

this court to overrule Blake, he has not proffered a sufficient reason to 

depart from this precedent. 

Evidence of codefendants' sentences 

Rodriguez argues that the district court erred in denying his 

motion to admit evidence of the more lenient sentences imposed for his 

two codefendants. We discern no abuse of discretion. See Ramet v. State, 

125 Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing the admission of 

evidence for abuse of discretion). We recognize, as Rodriguez points out, 

that some jurisdictions consider a codefendant's sentence relevant to a 

jury's sentencing decision. See, e.g., Ex parte Burgess, 811 So. 2d 617, 628 

(Ala. 2000); State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989); Beardslee v. 

Woodford, 358 F.3d 560, 579-80 (9th Cir. 2004). However, there is no 

mandatory authority requiring the admission of such evidence, and we 

have reiterated the importance of individualized sentencing that takes 

into account a defendant's character, record, and the circumstances of the 

offense. Browning v. State, 124 Nev. 517, 526, 188 P.3d 60, 67 (2008); 

Harte v. State, 116 Nev. 1054, 1069, 13 P.3d 420, 430 (2000). Moreover, 

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Rodriguez and his codefendants were not similarly situated. Allen 

pleaded guilty to avoid the death penalty. Servin v. State, 117 Nev. 775, 

793, 32 P.3d 1277, 1290 (2001). Servin was sentenced to death, but his 

sentence was vacated as excessive based on his youth at the time of the 

crime, his expression of remorse, the influence of drugs at the time of the 

crime, and his lack of a significant criminal background. Id. at 793-94, 32 

P.3d at 1290. Conversely, Rodriguez did not plead guilty; he was the 

oldest of the three participants in the crime and, as he had known the 

victim prior to the crime, the apparent orchestrator of the crime; and his 

criminal history included a violent sexual assault on a 14-year-old victim. 

Therefore, the district court did not abuse its discretion in denying the 

motion to admit this evidence. 

Motion to set aside sentence 

Rodriguez contends that the district court erred in denying his 

motion to set aside his death sentence because it is excessive considering 

that he did not shoot the victim and his codefendants received life 

sentences. We disagree. Rodriguez did not assert that there is insufficient 

evident to support the jury's decision, NRS 175.381(2) (permitting a 

district court to set aside verdict where insufficient evidence supports it), 

or that he has an intellectual disability, NRS 175.554(5) (permitting the 

district court to entertain a motion to set aside a death sentence based on 

intellectual disability). The district court did not otherwise have 

discretion to set aside his sentence. See Hardison v. State, 104 Nev. 530, 

534-35, 763 P.2d 52, 55 (1988) ("[A]fter a jury has assessed a penalty of 

death, the judge has no discretion and must enter judgment according to 

the verdict of the jury."). 

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Constitutionality of his death sentence 

Rodriguez asserts that because the evidence shows that Servin 

fired the shots that killed the victim and there have been so few 

executions involving defendants who did not perform the actual killing for 

which they were convicted, his sentence appears arbitrary and capricious 

and therefore unconstitutional. We disagree. The record indicates that 

Rodriguez intended that lethal force be employed or participated in the 

robbery while exhibiting a reckless indifference to the Fondy's life. See 

Guy v. State, 108 Nev. 770, 783-84, 839 P.2d 578, 587 (1992) ("To receive 

the death sentence, [a defendant] must have, himself, killed, attempted to 

kill, intended that a killing take place, intended that lethal force be 

employed or participated in a felony while exhibiting a reckless 

indifference to human life." (quoting Doleman v. State, 107 Nev. 409, 418, 

812 P.2d 1287, 1292-93 (1991))); accord Tison v. Arizona, 481 U.S. 137, 

158 (1987) (holding that "major participant in the felony committed, 

combined with reckless indifference to human life" is sufficient to satisfy 

Eighth Amendment requirements for imposing death penalty). Rodriguez 

knew Fondy and enough information about her financial condition to 

believe that her safe contained a considerable sum of cash. He was 

undoubtedly aware that she was paralyzed and ambulated with the use of 

a wheelchair. He and two other assailants entered Fondy's home armed 

with two firearms. Considering Fondy's inability to resist the 

overwhelming force brought to bear in this robbery, it is evident that 

Rodriguez and his confederates intended to employ lethal force or effect 

the felony with a reckless indifference to her life. Moreover, Rodriguez 

and his codefendants' statements after the crime indicate that they 

intended a killing take place. In bragging about the crime later that 

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night, Rodriguez stated, "[w]e did it, fool." Therefore, the record is 

sufficient to demonstrate that Rodriguez had the necessary culpability for 

a constitutionally imposed death sentence •2 

Mandatory review 

NRS 177.055(2) requires that this court review every death 

sentence and consider whether (1) sufficient evidence supports the 

aggravating circumstances found, (2) the verdict was rendered under the 

influence of passion, prejudice or any arbitrary factor, and (3) the death 

sentence is excessive. First, sufficient evidence supported the three 

aggravating circumstances found—the murder was committed to avoid 

lawful arrest, the murder involved torture and/or mutilation, and 

Rodriguez had a prior conviction for a felony involving violence. Second, 

nothing in the record indicates that the jury reached its verdict under the 

influence of passion, prejudice, or any arbitrary factor. And third, 

considering Rodriguez's role in orchestrating the crime, during which 

considerable violence was visited on a vulnerable victim, Rodriguez's prior 

sexual assault conviction, and the evidence in mitigation, we conclude that 

Rodriguez's sentence was not excessive. 

2The jury found that the murder was committed to avoid or prevent 

a lawful arrest, the murder involved torture or mutilation, and that 

Rodriguez had been previously convicted of a felony crime involving the 

use or threat of violence. The jury had been instructed on the statutory 

mitigating circumstances pursuant to NRS 200.035. The record does not 

indicate that the jury found any mitigating circumstances. The jury 

further concluded that any mitigating circumstance or circumstances were 

not sufficient to outweigh the aggravating circumstances found and 

sentenced Rodriguez to death. 

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J. 

Having considered Rodriguez's contentions and concluded that 

they lack merit, we 

ORDER the judgment of convi tion AFFIRMED. 

, C.J. 

Hardesty 

--S:2010r 

Parraguirre 

:;"1,% 9

Douglas 

J. 

J. 

cc: Hon. Brent T. Adams, District Judge 

David Kalo Neidert 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

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PICKERING, J., with whom CHERRY and SAITTA, JJ., agree, dissenting: 

We respectfully dissent. 

In a death penalty case, it is "desirable for the jury to have as 

much information before it as possible when it makes the sentencing 

decision." Gregg v. Georgia, 428 U.S. 153, 204 (1976). At his penalty 

hearing, Rodriguez sought to introduce evidence of the life sentences that 

his two accomplices, Robert Servin and Brian Allen, received. Initially, 

the district judge deemed this evidence relevant and admissible, then 

reversed himself and excluded it. We recognize the split of authority that 

exists nationally on the admissibility of accomplice sentences in a death 

penalty hearing, see PosteIle v. State, 267 P.3d 114, 140-41 (Okla. Crim. 

App. 2011) (collecting cases), and that ordinarily, the admission or 

exclusion of evidence is entrusted to the sound discretion of the district 

court, which an appellate court will not reverse absent abuse. But unless 

we are prepared to hold such evidence per se inadmissible—and this is not 

the law in Nevada, see Flanagan v. State, 107 Nev. 243, 247-48, 810 P.2d 

759, 762 (1991), vacated by Moore v. Nevada, 503 U.S. 930 (1992)— 

Rodriguez's sentencing jury should have been told that the actual shooter, 

Servin, received a life sentence, as did Allen, his accomplice. We recognize 

that Rodriguez was 19 and had a prior violent felony in his background, 

whereas Servin and Allen were 16 and 17, respectively, without significant 

criminal histories. Nonetheless, the life sentences Servin and Allen 

received were relevant to the jury's determination of whether death was 

an appropriate sentence for Rodriguez. Since evidence of Servin's and 

Allen's participation was already before them, the evidence did not pose a 

significant danger of misleading the jury or delaying the proceeding. And, 

given that Rodriguez was not the shooter and may have been convicted on 

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a felony murder theory, 1we cannot say that the district court's failure to 

admit this evidence was harmless. 

The jury must "be able to consider and give effect to all 

relevant mitigating evidence." Boyde v. California, 494 U.S. 370, 377 

(1990). Mitigation evidence includes "any aspect of a defendant's 

character or record and any of the circumstances of the offense that the 

defendant proffers as a basis for a sentence less than death." Lockett v. 

Ohio, 438 U.S. 586, 604 (1978). The majority of this court has joined 

jurisdictions that have concluded that an accomplice's sentence does not 

relate to a defendant's character or record nor is it a circumstance of the 

offense. See Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir. 1986) 

(concluding that codefendant's sentence not relevant to defendant's 

character or •record); People v. Moore, 253 P.3d 1153, 1181 (Cal. 2011) 

(similar); Crowder v. State, 491 S.E.2d 323, 325 (Ga. 1997) (similar); State 

v. Roache, 595 S.E.2d 381, 426 (N.C. 2004) (similar); State v. Charping, 

508 S.E.2d 851, 855 (S.C. 1998) (similar); Saldano v. State, 232 S.W.3d 77, 

100 (Tex. Crim. App. 2007) (similar). But reasonable minds can disagree, 

and several jurisdictions consider disparity in codefendants' sentences to 

be mitigating evidence. See Ex parte Burgess, 811 So. 2d 617, 628 (Ma. 

2000) (considering state statute that requires proportionate sentencing in 

'Juries often reject the death penalty in cases where the defendant 

"did not commit the homicide" or "was not present when the killing took 

place." Enmund v. Florida, 458 U.S. 782, 795 (1982). In fact, as the Court 

observed in Enmund, "only a small minority of jurisdictions-eight-allow 

the death penalty to be imposed solely because the defendant somehow 

participated in a robbery in the course of which a murder was committed," 

and less than 2% of those executed between 1954 and 1982 were 

nontriggermen. Id. at 792. 

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concluding that lenient treatment of accomplices was mitigating factor); 

State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989) (similar); State v. 

Ferguson, 642 A.2d 1267, 1269 (Del. Super. Ct. 1992) (similar); see also 18 

U.S.C. § 3592(a)(4) (2006) ("In determining whether a sentence of death is 

to be imposed on a defendant, the finder of fact shall consider any 

mitigating factor, including the following: (4) Equally culpable 

defendants.—Another defendant or defendants, equally culpable in the 

crime, will not be punished by death."). 

Just as the State may present evidence about matters 

unrelated to aggravating circumstances, a defendant is not limited to 

presenting only mitigating evidence. A capital sentencing hearing has two 

distinct phases: an "eligibility phase," during which the jury narrows 

those defendants eligible for the death penalty, and a "selection phase," 

during which the jury decides "whether to impose a death sentence on an 

eligible defendant." Summers v. State, 122 Nev. 1326, 1336, 148 P.3d 778, 

785 (2006) (Rose, J., concurring in part and dissenting in part); see also 

Kansas v. Marsh, 548 U.S. 163, 173-74 (2006) (noting that capital 

sentencing procedures "must: (1) rationally narrow the class of deatheligible defendants; and (2) permit a jury to render a reasoned, 

individualized sentencing determination based on a death-eligible 

defendant's record, personal characteristics, and the circumstances of [the] 

crime"). The jury's discretionS must be channeled when determining 

whether aggravating circumstances exist and whether any circumstances 

that are found are outweighed by any mitigating circumstances found, but 

should be broadened to allow an individualized determination of whether 

death is an appropriate sentence. Summers, 122 Nev. at 1337, 148 P.3d 

785. As part of this individual determination, "evidence may be 

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presented .. . 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). As evidence relevant to mitigation has been 

"broadly defined," we have noted that "this provision is of little practical 

benefit to the defendant." Hollaway v. State, 116 Nev. 732, 746, 6 P.3d 

987, 997 (2000). But it is not without any benefit. 

In our view, the evidence concerning Servin's and Allen's 

sentences is relevant to the selection phase of the penalty hearing. The 

death penalty is reserved for those defendants who are "the worst of the 

worst." Roper v. Simmons, 543 U.S. 551, 568 (2005) ("Capital punishment 

must be limited to those offenders who commit a narrow category of the 

most serious crimes and whose extreme culpability makes them the most 

deserving of execution." (internal quotation marks)). Capital juries are a 

critical "link between contemporary community values and the penal 

system." Gregg, 428 U.S. at 181 (quoting Witherspoon v. Illinois, 391 U.S. 

510, 519 n.15 (1968)). They use the contemporary values to assess a 

defendant's moral culpability and impose an appropriate punishment. See 

People v. Karis 758 P.2d 1189, 1204 (Cal. 1988) ("In weighing the 

appropriate penalty, deciding between death and life imprisonment 

without possibility of parole, the jury performs a normative function, 

applying the values of the community to the decision after considering the 

circumstances of the offense and the character and record of the 

defendant"); see also Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d 157, 

172-74 (2014) (noting several factors, including moral culpability, as 

relevant to a capital sentencing determination). This selection process is 

important to maintaining a system where there are meaningful 

distinctions between those cases where the death penalty is imposed and 

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the cases where it is not imposed. See Callins v. Collins, 510 U.S. 1141, 

1147 (1994) (Blackmun, J., dissenting) (noting that penalty scheme 

requires a "meaningful basis for distinguishing the few cases in which 

[the death penalty] is imposed from the many cases in which it is not" 

(alteration in original) (quoting Furman v. Georgia, 408 U.S. 238, 313 

(1972) (White, J., concurring))). Accordingly, we owe jurors a duty to 

present all the information necessary to properly effect contemporary 

community values in the case at hand. See also ABA Principles for Juries 

and Jury Trials, Principle 13 (2005) ("The court and parties should 

vigorously promote juror understanding of the facts and the law."). And 

where multiple defendants are responsible for the criminal conduct which 

resulted in a death, consideration of the moral culpability of those other 

defendants and the penalties levied against them, to the extent that 

information is available, can help the jury to make a reasoned and moral 

judgment about whether death is appropriate for any of the perpetrators. 

See Simmons v. South Carolina, 512 U.S. 154, 172 (1994) ("The Eighth 

Amendment entitles a defendant to a jury capable of a reasoned moral 

judgment about whether death, rather than some lesser sentence, ought to 

be imposed.") (Souter, J., concurring); United States v. Gabrion, 719 F.3d 

511, 524 (6th Cir. 2013) (Mitigation evidence relating to "whether 

la]nother defendant or defendants, equally culpable in the crime, will not 

be punished by death' ... does not measure the defendant's culpability 

itself, but instead considers—as a moral data point—whether that same 

level of culpability, for another participant in the same criminal event, 

was thought to warrant a sentence of death. Hence this factor likewise 

addresses whether the defendant's culpability warrants death." 

(alteration in original) (quoting 18 U.S.C. § 3592(a)(4) (2012))). This court 

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has even considered evidence of a codefendant's sentence to be proper and 

helpful" for the jury's consideration during a capital penalty hearing when 

that evidence was offered by the State. Flanagan, 107 Nev. at 248, 810 

P.2d at 762. 

We further conclude that the evidence did not pose a danger of 

misleading the jury. See NRS 48.035(1) ("Although relevant, evidence is 

not admissible if its probative value is substantially outweighed by the 

danger of unfair prejudice, of confusion of the issues or of misleading the 

jury."). All the perpetrators were teenagers. They had not developed such 

lengthy social and criminal histories that explaining the differences 

between them would have taken the presentation of evidence in this case 

too far afield. In fact, during oral argument the State could not provide a 

single reason why admission of this evidence would cause undue delay or 

confusion, and the majority was able to condense the key reasons for 

Allen's and Servin's sentences to less than half of a paragraph: "Allen 

pleaded guilty to avoid the death penalty. Servin was sentenced to death, 

but his sentence was vacated as excessive based on his youth at the time 

of the crime, his expression of remorse, the influence of drugs at the time 

of the crime, and his lack of significant criminal background." (citations 

omitted). But even if the majority were correct about delays, "death is 

different," Gregg, 428 U.S. at 188, and the criminal justice system owes 

the utmost care to capital defendants and the jurors entrusted with the 

unenviable task of sentencing them. Zant v. Stephens, 462 U.S. 862, 884- 

85 (1983) ("[B]ecause there is a qualitative difference between death and 

any other permissible form of punishment, 'there is a corresponding 

difference in the need for reliability in the determination that death is the 

appropriate punishment in a specific case." (quoting Woodson v. North 

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Carolina, 428 U.S. 280, 305 (1976))). Therefore, we conclude that the 

district court abused its discretion in denying Rodriguez's motion to admit 

evidence concerning his accomplices' sentences. See Barnet v. State, 125 

Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing the admission of 

evidence for abuse of discretion). 

We further conclude that this error was not harmless, see 

Newman v. State, 129 Nev., Adv. Op. 24, 298 P.3d 1171, 1181 (2013) ("A 

nonconstitutional error, such as the erroneous admission of evidence at 

issue here, is deemed harmless unless it had a substantial and injurious 

effect or influence in determining the jury's verdict." (internal quotation 

marks omitted)), and cannot withstand our mandatory review under NRS 

177.055. Rodriguez, Servin, and Allen robbed the victim. Servin and 

Allen brought weapons and Servin stated that he was prepared to shoot 

the victim if need be. Rodriguez was unarmed. After robbing the victim, 

Servin shot her to death while Rodriguez and Allen were outside the 

residence. Rodriguez was charged under both the premeditated and 

felony-murder theories of liability. The verdicts do not indicate under 

which theory Rodriguez was convicted, but it appears reasonably certain 

that the jury held Rodriguez "strictly accountable for the consequences of 

perpetrating a felony," under the felony-murder theory. SanchezDominguez v. State, 130 Nev., Adv. Op. 10, 318 P.3d 1068, 1075 (2014); see 

State v. Contreras, 118 Nev. 332, 334, 46 P.3d 661, 662 (2002) ("The 

felonious intent involved in the underlying felony is deemed, by law, to 

supply the malicious intent necessary to characterize the killing as a 

murder, and .. . no proof of the traditional factors of willfulness, 

premeditation, or deliberation is required for a first-degree murder 

conviction."). In our view, it is reasonably unlikely that the jury would 

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have sentenced Rodriguez—a nonshooter—to death if it had the benefit of 

the knowledge that the other perpetrators, who were equally or more 

morally culpable for the murder, received life sentences. Consequently, 

we would reverse and remand for a new penalty hearing. 

Saitta 

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