■ A man on death row had his sentence overturned again.
Error on verdict form is at issue
A three-time convicted killer on Nevada’s death row for nearly four decades in a case that marked a cornerstone of state criminal procedure had his sentence overturned for the second time.
In a 4-2 opinion, the Nevada Supreme Court found last week that a mistake on a verdict form in the second sentencing of
Tracy Petrocelli in 2019 could have affected the jury’s decision.
Petrocelli, now 69, was first sentenced to die in 1982 for the shooting death of James Wilson, a Reno used-car salesman. Petrocelli shot Wilson after he fled Washington state, where five months earlier he had killed his 18-yearold fiancee, Melanie Barker.
In 2017, the 9th U.S. Circuit Court of Appeals upheld Petrocelli’s conviction in that case but ordered a new sentencing after finding in part that his penalty relied on testimony from a psychiatrist who examined Petrocelli without informing him of his Miranda rights.
He appealed his second sentence, arguing that the verdict forms contained a mistake in the wording as it required a finding “that any mitigating circumstance or circumstances are not sufficient to outweigh the aggravating circumstance found.”
To impose death, jurors must find at least one aggravating circumstance and decide that no mitigating circumstances outweigh the aggravating factors. Jurors considered three possible sentences: capital punish
ment, life in prison without parole or life in prison with parole.
“We conclude that the error affected Petrocelli’s substantial rights and he is entitled to a new sentencing hearing,” wrote Justices James Hardesty, Lidia Stiglich, Elissa Cadish and Abbi Silver. “Accordingly, we conclude Petrocelli has demonstrated plain error.”
Washoe County Deputy Public Defender John Petty argued that the verdict forms confused jurors and rendered their verdict unreliable.
“The relief we asked for is what we got,” Petty said Thursday. “So we’re happy with the decision.”
Nevada has not executed a prisoner since 2006.
Petrocelli’s initial appeal of the Wilson murder conviction led the Nevada Supreme Court to establish a three-prong test for whether a defendant’s “prior bad acts” can be included in evidence at trial.
Since the first guilty verdict, Petrocelli has been convicted of two other killings that occurred in 1981. One was of Barker, who was killed in October 1981. The other murder, of Dennis Gibson, was not prosecuted until the late 2000s. In that case, Petrocelli pleaded guilty to second-degree murder.
All three of his victims were killed within six months of one another — from October 1981, when he shot Barker, to March 1982, when he killed Wilson. Petrocelli had not been convicted of murdering Barker when he stood trial for the shooting of Wilson, but the jury still learned of her death through testimony at trial.
In last week’s decision, Justices Douglas Herndon and Ron Parraguirre dissented, while Justice Kristina Pickering did not participate in the decision.
“Even if error could be found, it did not affect Petrocelli’s substantial rights and therefore reversal is not warranted,” the dissent stated.
Prosecutors in Washoe County, tasked with deciding whether to continue to pursue capital punishment for Petrocelli, could not be reached for comment.