Daniel v. State

• Decision Date: 03 November 2003
• Docket Number: No. 38857.,38857.
• Parties: Dorion DANIEL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

78 P.3d 890

119 Nev. 498

Dorion DANIEL, Appellant, v. The STATE of Nevada, Respondent.

No. 38857.

Supreme Court of Nevada.

November 3, 2003.

JoNell Thomas, Las Vegas, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, Clark A. Peterson, Chief Deputy District Attorney, and Christopher J. Lalli, Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.

OPINION

PER CURIAM.

Appellant Dorion Daniel¹ was accused and tried in connection with the shooting deaths of two men and the non-fatal shootings of two others in an apartment in Las Vegas. He was convicted, pursuant to a jury trial, of two counts of first-degree murder, two counts of attempted murder with use of a deadly weapon, and one count of burglary while in possession of a firearm. After the jury deadlocked over the proper penalty, a three-judge panel imposed two death sentences for the murders.²

A number of trial errors occurred in this case. The district court erred in meeting privately with a State witness without making a record of the meeting, in answering questions from the jury without notifying counsel and without making a record of the answers given, in allowing questioning regarding appellant's prior arrests, in limiting appellant's presentation of evidence regarding the violent character of the victims, and in not allowing questioning of a juror about possible prejudice against appellant. Due to the quantity and character of this cumulative error and the gravity of the crime charged and the penalty sought,³ we reverse appellant's judgment of conviction and remand for further proceedings consistent with this opinion.

FACTS

Appellant shot and killed Frederick Washington and Mark Payne early in the morning on July 28, 1997. Appellant also shot Terhain Woods and Antione Hall; however, they survived their wounds. Woods and Hall testified that they, appellant, Payne, and a fifth person, Sadie Parker, were in Washington's apartment along with Washington when the crimes occurred. Appellant, Woods, Hall, Washington, and Payne were in the front room while Parker was in the kitchen. Woods stated he heard a gunshot and as he turned to his left, he was shot three times by appellant. Hall testified that appellant shot him after appellant shot Washington and Woods. Both Woods and Hall pretended to be dead. They both testified that Payne ran from the living room into the kitchen with appellant in pursuit and that they heard gunshots from the kitchen. Woods indicated appellant walked back into the living room and out the front door.

Woods then dialed 911 while Hall went to lock the back door of the apartment. Because Woods' injuries interfered with his speech, Hall took the phone from Woods and spoke to the 911 operator. Woods and Hall testified that Woods motioned towards a closet for Hall to retrieve Washington's handgun from the closet. Hall understood Woods' gesture, obtained the weapon, cocked it, and sat on the floor. Woods and Hall indicated that Hall placed the gun on the floor near Washington when they heard the police arriving.

Woods and Hall indicated that Woods and Washington had argued with appellant earlier in the day over a refusal to give appellant ten dollars. At the time of the shooting, Woods and Washington had just arrived at the apartment and Washington was watching television when he was shot. According to Woods and Hall, Washington did not argue with or threaten appellant before appellant began shooting.

Parker testified that she was in the kitchen cooking when Woods and another man entered the apartment through the front door. Less than a minute went by, during which she heard some talking, and then gunfire erupted. Parker ran out the back door. She stated she did not hear any arguing, yelling, or threatening words before the shooting began, and she had not seen any of the men in the apartment with a gun.

LVMPD Officers John Segura and Mark Perry arrived at the apartment at 1:19 a.m., about four minutes after the 911 call was received. Woods opened the door and "gargled something to the effect he had been shot." Payne was found dead in the kitchen. A gun was on the floor near Washington's body.

In addition to the testimony of Woods, Hall, Parker, and the responding officers, the prosecution presented evidence suggesting that appellant may have shot Washington because appellant believed that Washington was involved in the murder of a person named John Lee Davis. The State also presented evidence of appellant's drug usage, suggesting the argument over the ten dollars involved appellant's desire to buy drugs. Finally, the State presented testimony that the day after the shootings, appellant appeared in an angry state at the hospital where Hall and Woods were receiving treatment and that appellant tried to get to Hall and Woods.

About twelve hours after the crimes, Detectives Brent Becker and Mike Frank questioned appellant after informing him of his Miranda⁴ rights. Initially appellant denied any involvement, but after the detectives mentioned the possibility of self-defense, appellant changed his story and claimed he shot the victims in self-defense. Appellant told the detectives that he knew that Washington had killed John Lee Davis.⁵ An analysis of appellant's blood after he was arrested showed the presence of phencyclidine (PCP or angel dust).

An autopsy showed that Payne sustained two gunshot wounds: one to the back of his head, above and behind the right ear, and the other to the back of the right thigh. He also had lacerations on his face. Washington suffered a single gunshot to the top of his head.

Testifying in his defense, appellant admitted to the shootings but claimed that he acted in self-defense. Appellant testified that Washington, Woods, and Hall all had reputations for being violent. Appellant knew that Hall usually carried a gun and had seen him shoot at people on two occasions. As to Woods, appellant stated that Woods claimed to have shot and killed four people. Appellant also indicated that he saw Woods beat up one police officer and that Woods bragged about beating up several others. Finally, appellant said he saw Washington shoot at people on two occasions and that Washington had said that he once attempted to rob a Church's Chicken. Appellant also stated that Washington claimed that Hall and Washington had shot a man in the head.

According to appellant, he, Washington, Woods, and Hall sold drugs out of Washington's apartment. On the afternoon before the shootings, Washington and Woods pressed him to set up the robbery of a drug dealer that appellant knew. Appellant refused. When he went to Washington's apartment for the final time that night, he had a gun because he was carrying $3,000 to buy drugs from that dealer. They again asked him to set up the dealer, and he again refused. He then went upstairs to use the bathroom, and when he returned Washington started an argument with him. As the confrontation intensified, Washington pulled out a gun while still sitting on the couch. Appellant pulled his own gun, and when Washington rose up and got ready to cock his gun, appellant stepped to the side and shot Washington. Appellant testified that Hall then jumped up and came towards appellant so appellant shot him twice. Woods was reaching for the gun on the floor so appellant shot him. Appellant ran to the kitchen, saw Payne reaching up above the refrigerator, and shot him. Appellant then ran out the back door. He stated he did not shoot Parker because he did not think she was a threat.

Appellant admitted that he went to the hospital, but indicated he was only there to talk with a friend about what had happened. No one was there so he went to his federal parole supervisor. His supervisor called the police, and two officers soon arrived. Appellant explained that the PCP found in his blood was the result of smoking marijuana and PCP after the shooting. Appellant denied that he thought Washington was responsible for killing John Lee Davis.

Several other witnesses testified for the defense. An LVMPD detective and a fast-food restaurant employee testified that in their opinion Washington was a violent person. Another detective and a parole officer testified that in their opinion Payne was a violent person.

The jury returned guilty verdicts on all five counts. The jury was unable to reach a unanimous verdict during the penalty phase, and a mistrial was declared. Appellant opposed convening a three-judge panel to decide on a penalty, arguing that the procedure was unconstitutional. The district court rejected appellant's argument, and a three-judge panel was convened. The panel found two aggravating circumstances for each murder: the murder was committed by a person who was convicted in the immediate proceeding of more than one offense of murder, and the murder was committed to avoid or prevent a lawful arrest or to effect an escape from custody. The panel also found mitigating circumstances existed but that the aggravating circumstances were not outweighed by the mitigating circumstances. The panel returned death sentences for both murders.

DISCUSSION

Appellant claims multiple incidents of error. Appellant contends the district court erred by: (1) conducting numerous conferences off the record in violation of SCR 250, thus denying appellant meaningful appellate review; (2) interviewing a witness outside the presence of the defendant, his counsel, and counsel for the State; (3) responding to juror questions without consulting with counsel; (4) permitting the State to cross-examine appellant about arrests that did not result in criminal prosecutions; (5) excluding extrinsic evidence of violent acts committed by the victims; (6) refusing to allow defense counsel to examine a juror regarding possible bias for the State or prejudice towards appellant; (7) allowing the State to ask appellant if witnesses were lying; (8) refusing to give a...