For the second time in a week, the Nevada Supreme Court has voted to uphold a murder conviction but ordered a new sentencing for the defendant.
In an opinion Monday, the court ordered a new sentencing for John Edward Butler - who was facing possible execution for murdering two men in Las Vegas.
Wednesday's ruling ordered a jury be empaneled to consider a new sentence for Christopher Paul Jernigan, 33, in the killing of Frank Knight in the Mineral County community of Mina.
But as they did in Butler's case, the court ruled there was overwhelming evidence of guilt against Jernigan.
In Jernigan's case, the high court found numerous problems with how the trial was handled. They ruled the judge gave jury instructions which improperly defined how a jury should define malice. Justices Nancy Becker, Deborah Agosti and Mark Gibbons also agreed with defense lawyers the court was wrong to admit evidence of Jernigan's prior uncharged misconduct without even holding a hearing to determine if that evidence was proper. "Bad act" evidence, they said, presents a serious danger of prejudicing the jury unless specifically relevant to the crime charged and, in Jernigan's case, they said it was not.
That testimony included references to Jernigan's unemployment, his mother raising his child, that he had just been released from prison when the killing occurred.
And the justices agreed there were numerous instances of prosecutorial misconduct in the case including commenting to the jury on Jernigan's refusal to give police a statement and answer questions when he was arrested - a clear violation of his Fifth Amendment rights.
But the court ruled none of that warrants overturning the conviction.
"If the issue of guilt or innocence is close and if the state's case is not strong, prosecutorial misconduct will probably be considered prejudicial," the justices wrote. "However, where evidence of guilt is overwhelming, even aggravated prosecutorial misconduct may constitute harmless error."
But the three justices did agree the trial judge violated the portion of the law stating that a separate penalty hearing must be conducted in such cases. Jernigan was sentenced to two consecutive terms of life in prison by District Judge John P. Davis even though he never waived his right to be sentenced by a jury.
The court ordered he receive a new sentencing hearing before a jury.
Contact reporter Geoff Dornan at nevadaappeal@sbcglobal.net or 687-8750.