Butler v. State

• Decision Date: 20 December 2004
• Docket Number: No. 41283.,41283.
• Parties: John Edward BUTLER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

102 P.3d 71

120 Nev. 879

John Edward BUTLER, Appellant, v. The STATE of Nevada, Respondent.

No. 41283.

Supreme Court of Nevada.

December 20, 2004.

David M. Schieck, Special Public Defender, and Lee Elizabeth McMahon, Deputy Special Public Defender, Clark County; Sciscento & Montgomery and Joseph S. Sciscento, Las Vegas, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and Christopher J. Laurent and James Tufteland, Chief Deputy District Attorneys, Clark County, for Respondent.

Before the Court En Banc.¹

OPINION

SHEARING, C.J.

Appellant John Butler was convicted by a jury of two counts of first-degree murder with the use of a deadly weapon and was thereafter sentenced by the jury to death. On appeal, we affirm Butler's convictions, but we vacate his death sentences and remand for a new penalty hearing.

FACTS

I. Guilt phase

John Butler was an influential member of a white supremacist gang known as the Independent Nazi Skinheads (INS). The victims Linn Newborn, an African-American male, and Daniel Shersty, a Caucasian male, were members of a rival nonracist gang known as Skinheads Against Racial Prejudice (SHARP). Newborn was a leader of SHARP.

INS was distinguishable from SHARP by its manner of dress and beliefs. The members of these two gangs clashed because of opposing views on racism. INS members want to preserve the white race without pollution from other races; SHARP members want to promote racial unity. According to Las Vegas Metropolitan Police Department (LVMPD) Officer Greg Damarin, a former gang unit detective, both INS and SHARP are violent skinhead gangs.

On the evening of July 3, 1998, Newborn was at his place of work, Tribal Body Piercing. The Stakeout Bar and Grill was located in the same shopping center as Tribal Body Piercing, and Carolyn Trotti was also at work that night tending the bar. Trotti identified Melissa Hack, an INS member and Butler's girlfriend, as one of two girls that had been in and out of the bar four or five times that night. Newborn and Shersty later told friends that they were going to party that night with a couple of girls they had met at Newborn's work when Newborn had pierced one of them. Newborn and Shersty were never heard from again.

On the morning of July 4, 1998, Butler called Joey Justin and said that he needed help doing something but did not want to talk about it over the phone. Butler and Melissa later picked up Justin and drove to a dirt road in the desert. On the way there, Butler said that "he needed help picking up some mistakes they left out there from the night before," including a beer bottle with Melissa's fingerprints on it and shotgun shells. Butler warned Justin that he would possibly see one or two bodies. After arriving, Justin saw a blood-covered body on the ground. He and Melissa began picking up the pieces of a broken bottle in the dirt when they noticed someone was approaching. Justin yelled for Butler.

Anthony Harris, his father James, and a family friend were riding recreational all terrain vehicles (ATVs) in the desert when they came upon a body, later identified as Shersty's, which was covered with blood and lying on the ground. The ATV riders next saw two males, one of whom Anthony Harris identified as Butler, and a female approaching from the desert. The approaching group waved their hands. Butler yelled to ask whether the ATV riders had a cellular phone to call the police.

Butler and his companions got inside their car. The female covered her face and ducked down. James Harris used his cellular phone to call the police. Butler drove toward the ATV riders. As the car passed, Butler stopped to say that his girlfriend was sick and that he could not stay. Anthony Harris wrote the vehicle's license plate number in the dirt. Butler noticed this and told Anthony that it was unnecessary — Butler would give him a pager number.² Butler soon drove away.

While Butler drove Justin home, Butler told him that if the police asked, he should say that they were out looking for a place to ignite fireworks. Butler explained that he and Melissa's brother, Ross Hack, who was also an INS member, ambushed the two victims in the desert the previous night, after Melissa and one of her friends went to Tribal Body Piercing to set up a date with them. One of the girls got pierced. Then the girls drove out to the desert with the victims, who were planning to drink and party. Butler said that he ran up with a shotgun and killed one victim right away. Ross Hack then used a .32 caliber gun and shot at the other victim but ran out of bullets. Butler chased this victim into the desert and killed him with a shotgun. Butler told Justin that he would be placed in Butler's INS crew if he proved he could be trusted.

LVMPD officers responded to a call that morning and found Shersty's body partially under his vehicle. Officers recovered one 12-gauge shotgun shell. Medical Examiner Giles Green autopsied Shersty's body. The head bore bruises and abrasions. The body had a shotgun wound to the side of the chest and two . 32 caliber bullet wounds to the face and neck areas. The wounds indicated that Shersty was shot at a fairly close range. Examiner Green believed that the cause of Shersty's death was homicide. He opined that it would have taken some time for Shersty to die from hemorrhaging and disruption of breathing.

Newborn's friends had reported him missing. Two days later, LVMPD officers returned to the desert and found his body as well as shotgun shells in the area. An open knife was lying at the foot of the body. Examiner Green also autopsied Newborn's body. It had maggots and was partly decomposed. The right side of his body and abdomen bore shotgun wounds as did the left side of his back, shoulder, and arm, indicating that he was shot at least twice with a shotgun. A small caliber gunshot wound was also found behind his ear. A bullet recovered from the head wound was later identified by a firearms expert as being a .38 caliber. Examiner Green believed that the cause of Newborn's death was homicide. Among other things, a partially obliterated store receipt for beer purchased at 12:34 a.m. on July 4, 1998, was also recovered.

Ten days later, LVMPD gang unit detectives found Butler standing by a vehicle next to Justin. Butler made eye contact with the detectives and ran as they approached. One officer gave chase and recovered a .32 caliber handgun in Butler's trail. A K-9 officer and his dog later found Butler hiding in the brush where he was arrested.³ Butler stipulated that he was in possession of the handgun found on the day of his arrest. A firearms expert determined that the handgun fired the two bullets recovered from Shersty's body, but could not tie the .38 caliber bullet recovered from Newborn's body to a particular weapon.

After his arrest, Butler agreed to give a statement to LVMPD Homicide Sergeant Ken Hefner. Butler claimed that he, Melissa, and Justin went to the desert on the morning of July 4 to scout for a location to ignite fireworks. He was driving down a dirt road when they discovered a body lying next to a car. Butler claimed that they decided to contact the police by hiking into the desert to some houses but hailed some ATV riders instead when he learned that they had a cellular phone. Butler admitted that he told the ATV riders that it was not necessary to write down the license plate number of the car he was driving and that he left without leaving the pager number he promised. Butler also admitted that he was involved with a racist skinhead gang, he knew the victims were members of an antiracist skinhead gang, and there had been conflicts between the two gangs. Butler blamed coincidence for why he happened to be in the area where the two victims were found.

Butler was later housed at a detention center in the same cell as inmate Richard Fishburn and shared a module with inmates Don Savage and Brian Jones. According to these three inmates, Butler made several inculpatory statements to them about the murders. The State produced other witnesses and evidence to prove Butler's guilt.

To rebut the State's case against him, Butler presented several witnesses to testify regarding his whereabouts on the night of the murders. Many witnesses placed Butler at the home of his mother, Cynthia Glosson. Other witnesses placed Butler at the home of his brother, Lonnie Butler. Some witnesses also placed Butler at a Stratosphere Hotel and Casino fireworks event that allegedly occurred that night. Melissa's father, Jacob Hack, believed that Butler stayed the night at his house. Butler attempted to show that alleged skinhead Daniel Hartung was responsible for the killings. He also tried to discredit the identification of Melissa by the Stakeout's bartender, Carolyn Trotti. The State presented witnesses in rebuttal.

The jury found Butler guilty of two counts of first-degree murder with use of a deadly weapon.

II. Penalty phase

The State presented victim impact witnesses during the penalty hearing. Dorothy Pinella, Shersty's aunt, testified about the impact of his death on his family. Shersty was a former member of the United States Air Force. She expressed sorrow for Butler and forgiveness of him. Lionel Newborn, Newborn's father, testified regarding his close relationship with his son and the impact of his death on his family. Newborn was also the father of a young son.

Officer Damarin testified that Butler had worked as a police informant in various cases and for his efforts had received various benefits in prosecutions against him. He also testified that when Butler was arrested in this case, he possessed a stolen jeep, had two outstanding warrants for felony possession of a stolen vehicle, and had the key to the jeep and a small bag of methamphetamine. Inside the jeep, officers found a letter that had been sent from inside of a prison or jail and addressed to Polar Bear (Butler's moniker)....