The Nevada Supreme Court declined to weigh in on the robbery trial of Bayzle Morgan, whose neo-Nazi tattoos were ordered concealed in front of jurors.
The trial was suspended last week after prosecutors said they wanted the high court to clarify wording on a verdict form.
Justices Michael Cherry, Michael Douglas and Mark Gibbons wrote in an order filed Monday afternoon that prosecutors “failed to demonstrate that our extraordinary intervention is warranted.”
A separate death penalty case against the 24-year-old could hinge on the high court’s decision.
In the current case, Morgan faces a charge of robbery with a deadly weapon in connection with a motorcycle that was stolen in May 2013, just days after prosecutors say he killed 75-year-old Jean Main inside her home.
District Judge Richard Scotti ruled that a verdict form should allow jurors an additional selection of a lesser charge of larceny from the person.
If Morgan is convicted of robbery with use of a deadly weapon, prosecutors can use that as one of four aggravating factors in seeking the death penalty in the murder case.
In a notice of intent to seek capital punishment, prosecutors said they would argue that Morgan was convicted of “a felony involving the use or threat of violence to the person of another.” The larceny charge does not include the use of force, and prosecutors would not be able to use that as an aggravating factor in the capital case.
Defense lawyers have acknowledged that Morgan was at the scene when a black and yellow 2008 Suzuki 600 GSX-R was stolen, but they have questioned whether a gun was used.
During the robbery trial, Morgan’s head and face were completely shaved, except for a small, fuzzy patch of blond hair on his chin. Tattoos on his neck, face and head were covered with makeup after members of a previous jury panel saw the markings and said they could not be fair and impartial.
By law, jurors are supposed to consider only the facts of the case, not a defendant’s appearance. The trial could restart as early as Friday.
Morgan’s death penalty trial is scheduled for later this month in front of another judge, who may have to decide whether the tattoos should be covered again.
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