Supreme Court applies death sentence rule to past cases

The Nevada Supreme Court ruled on Thursday that the limits on aggravating factors used to justify a death sentence must be applied to past cases as well as new cases.

In the 2004 decision McConnell v. State, the high court ruled the underlying criminal act in a felony-murder case cannot also be used as an aggravating factor to justify a death sentence.

The felony-murder statute allows conviction for first-degree murder without proving premeditation if the killing occurred during commission of a felony such as robbery, rape or burglary. But the court in the McConnell case ruled prosecutors who use the felony-murder statute can't then turn around and use that same robbery or burglary as an aggravating factor supporting execution.

The court, however, didn't rule whether McConnell could be applied retroactively to death cases before 2004.

Thursday it did just that in the 1987 murder of a Reno cab driver by John Bejarno and the 1992 case involving two murders by Michael Rippo.

In Bejarno, the court said the conviction was based in part on the fact the murder occurred during commission of a robbery. In Rippo, the charges were also based on the felony-murder statute.

In both opinions, the court ruled there was no distinction by the jury whether the guilty verdict was based on the felony-murder statute or premeditated first-degree murder. Therefore, it ruled, the aggravating circumstances tied to the underlying felony in each case must be thrown out because of the logic in the McConnell case. In so doing, the court said the rule must be applied retroactively to death cases where felony murder was charged.

But the ruling will do no good for either Bejarno or Rippo. In both of those cases, the high court ruled, there was more than ample evidence and other aggravating factors to justify a jury verdict ordering execution.

The ruling, however, wasn't unanimous. Justices Nancy Becker and Michael Douglas argued the rule should not be applied retroactively to old death row cases. They wrote that the only time the rule should be applied retroactively is when the state relies solely on felony murder and doesn't charge first-degree murder.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.