Berry v. State

• Citation: 363 P.3d 1148
• Decision Date: 24 December 2015
• Docket Number: No. 66474.,66474.
• Parties: Demarlo Antwin BERRY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

363 P.3d 1148

Demarlo Antwin BERRY, Appellant,
v.
The STATE of Nevada, Respondent.

No. 66474.

Supreme Court of Nevada.

Dec. 24, 2015.

363 P.3d 1150

Weil & Drage, APC, and John T, Wendland, Henderson; Richards Brandt Miller Nelson and Lynn S. Davies, Craig C, Coburn, Joel K. Kittrell, and Steven H. Bergman, Salt Lake City, Utah, for Appellant.

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Christopher F. Burton, Deputy District Attorney, Clark County, for Respondent.

BEFORE SAITTA, GIBBONS and PICKERING, JJ.

OPINION

By the Court, PICKERING, J.:

Demarlo Berry appeals from an order dismissing his third postconviction petition for a writ of habeas corpus. The district court dismissed Berry's petition as procedurally barred, without allowing discovery or conducting an evidentiary hearing. Berry supported his petition with declarations under penalty of perjury that, if true, may establish a gateway claim of actual innocence. We conclude that the district court improperly discounted the declarations offered in support of Berry's petition, which were sufficient in form and content to merit discovery and an evidentiary hearing on Berry's gateway actual innocence claim. We therefore reverse and remand.

I.

A.

Shortly after 8 p.m. on April 24, 1994, Charles Burkes was murdered in the course of a robbery at the Carl's Jr. fast-food restaurant in Las Vegas where Burkes worked as a manager. On that night, an African–American male entered the Carl's Jr., went behind the front counter, and pulled a gun on the cashier, Rae Metz, demanding that she open the cash registers. As Metz started to comply, the robber passed behind her and she escaped out a side door. Outside, Metz encountered another Carl's Jr. employee, who was on a cigarette break. The two ran to a nearby bar, the Long Branch Saloon, to call 9–1–1. They then left the bar, followed by several bar patrons. The group saw a man come out of the Carl's Jr., who brandished a gun at them, jumped the low wall separating the Carl's Jr. parking lot from the Blue Angel Motel parking lot next door, and got into a waiting black Cadillac, which drove off.

Burkes was found lying face-down near the rear of the Carl's Jr. He died from a single gunshot wound through the back of his left shoulder. Two shots were heard by an employee who had gone into the restroom to hide while the crime was in progress. Burkes's autopsy recovered a single .357 or .38 caliber projectile. A second projectile, matching that recovered during the autopsy, was found on the floor near the safe.

In April of 1994, when the murder occurred, appellant Demarlo Berry was 18 years old, weighed 140 to 145 pounds, and was 5'8? or 5'9? tall. Six of the eyewitnesses the police interviewed immediately after the crime—including Metz who had the best, although most terrifying look at him—described the man they believed to be the perpetrator as between 5'10? and 6' tall and weighing 175 to 200 pounds. Another eyewitness, who had had approximately 12 beers that night, described the man he saw run away as 5'6? tall.

The police received phone calls providing information about possible culprits, and eventually Berry became a suspect. The police created a photographic lineup that included a picture of Berry and showed it to Metz and three other eyewitnesses. Metz positively identified Berry; the others were less committal but stated that his picture resembled that of the perpetrator. Their certainty grew over time, and by trial, each identified Berry as the perpetrator, as did a fifth eyewitness.

The police had difficulty locating Berry, who before the crime had been a regular customer at the Carl's Jr. and was often seen hanging out by the Long Branch Saloon. When they found Berry, he was uncooperative. Berry was arrested and at some point briefly shared a holding cell with a number of other arrestees, including a man named Richard Iden. Iden had been arrested in Ohio,

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where he was attending to his critically ill father, and brought back to Nevada to face bad-check charges dating back to 1990. Iden testified for the State at Berry's trial, stating that, while the two were in the holding cell together, Berry confessed to him that he had committed the robbery/murder at the Carl's Jr.

Iden had been employed by the Sheriffs Office in Knox County, Ohio, before becoming addicted to crack cocaine and resorting to theft and crimes of deception to finance his habit. He was cross-examined extensively at trial about his criminal history and the timing and details of the plea deal he received, by which he was given probation despite his numerous convictions. Iden was also examined about the inconsistencies in his accounts of Berry's confession—first, he told police that Berry told him that he and two others robbed "this guy," possibly at a restaurant, and killed him when he failed to cooperate; in a second statement, Iden said Berry told him that he and two others murdered the "assistant manager" while robbing "the Carl's Jr. on the corner of Eastern and Freemont Street," as another person stayed outside, and he alleged that Berry said he was facing Burkes when he shot him; finally, at trial, Iden could not recall if Berry stated the crime occurred at a restaurant. These details conflict with the eyewitness testimony, which reported two perpetrators—the gunman and the getaway driver—and the physical facts, which establish that Burkes was shot in the shoulder from the back, not facing his assailant.

Berry testified in his own defense at trial. He denied any involvement in the crime, except as a witness. Specifically, Berry testified that he and a friend, Larry Walker, had been walking up and down Fremont Street that night selling drugs. They separated near the Blue Angel Motel, so Berry could go to the Carl's Jr. to get something to eat. As he neared the front door of the restaurant, he saw a man behind the counter who was not wearing a Carl's Jr. uniform, and a scared-looking female employee, presumably Metz. Berry stayed outside to watch. The man and the woman left his view, and then he saw the man come out and run away. Berry recognized the man as Steven "Sindog" Jackson, the leader of the San Bernardino Crips gang. Berry left the scene without giving a statement to the police and rejoined Walker. The pair watched the police activity from a distance and, roughly 40 minutes to an hour after the shooting, were approached by a K–9 officer who patted them down and asked if they knew what had happened. When Berry responded that they did not, the officer told them to go home.

Berry denied confessing to Iden and disputed Iden's repeated assertions that he and Berry knew each other from 1990, when Iden testified he was in Las Vegas and bought drugs from Berry. Berry explained that he did not volunteer information about Jackson to the police, or cooperate with them initially, because he feared retaliation against him and his family by the Crips. Berry called a San Bernardino police officer at trial who testified that Jackson was the leader of the San Bernardino "Tre 57" Crips, and dangerous.

Jackson's name also was reported to the police in the phone calls and tips they received after the crime. Like Berry, Jackson is African–American. At the time of the crime, he stood 6'0? and weighed 235 pounds. The police created a separate photographic lineup that included a picture of Jackson—his picture was not in the photographic lineup that included Berry's picture—but they did not show the lineup with Jackson's picture to the eyewitnesses they showed Berry's photographic lineup to. The police explained that their information suggested Jackson was the getaway driver, not the gunman, and that they could not find the eyewitness who could have placed Jackson as the driver of the getaway car. Marriage license records confirmed that Jackson was in Las Vegas to get married several weeks before the crime occurred.

The police never found the murder weapon. They collected 32 latent fingerprints and palm prints from the crime scene, none of which were a match for Berry's. On the second to last day of trial, the State presented a witness who had been asked during trial to attempt to compare Jackson's prints to those collected at the crime scene. While the

363 P.3d 1152

comparison did not produce a match, this result was inconclusive because the examiner was working from fax copies and there was confusion over whether the set used for comparison purposes belonged to Jackson or Jackson's brother, "D–Dog," also a Crip.

B.

Berry was charged with burglary, robbery, and first-degree murder, with the use of a deadly weapon, and the State filed a notice of intent to seek the death penalty. After the guilt phase of the trial, the jury deadlocked 11–1. They did not report whether the 11–person majority favored conviction or acquittal. The State agreed to withdraw its notice of intent to seek the death penalty if Berry would stipulate to waive his right to a unanimous jury verdict as to guilt. He did, and the jury returned an 11–1 verdict finding him guilty of all charges. A penalty phase followed as to whether Berry should receive life with, or life without, the...