Leslie v. State
| Decision Date | 22 January 1998 |
| Docket Number | No. 28753,28753 |
| Citation | 952 P.2d 966,114 Nev. 8 |
| Parties | Wilbert Emory LESLIE, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Wilbert Leslie was convicted of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon, and sentenced to death. We affirm the conviction and sentence.
On August 9, 1994, Prewitt was working as a clerk in a 7-Eleven store in Las Vegas. At approximately 9:00 p.m., Prewitt was shot and killed by an African-American man during a robbery of that store. Leslie was tried and convicted of the crime.
Bobby Roberts testified that at approximately 9:00 p.m. on August 9, 1994, he and his wife Lois were returning to their mobile home from grocery shopping. Bobby stated that he had parked his car in the back parking lot area of the 7-Eleven store, which placed him directly in front of his mobile home and approximately fifty feet from the 7-Eleven store. Bobby stated that the 7-Eleven store was well-lighted and that as he exited his car he saw an African-American man, whom he later identified in a photo and physical line-up and at trial, as Leslie, standing at the outside rear of the 7-Eleven store. He described Leslie as being tall with a thin face and long curly hair, wearing dark pants, a white T-shirt, and tennis shoes. Bobby also stated that he saw a gold, luxury-type car with tinted windows pull into the 7-Eleven parking lot and saw the man approach the car and speak to the driver through the driver's side window. Lois's testimony mirrored Bobby's, and she also identified Leslie as the man she saw at the 7-Eleven.
Approximately fifteen to thirty minutes after last witnessing the man, Bobby heard sirens and a helicopter, looked out of his mobile home window, and saw police cars and an ambulance at the 7-Eleven. Bobby spoke with a police officer, learned that the clerk in the 7-Eleven had been shot, and asked the officer if an African-American had committed the crime. The officer informed Bobby that an African-American man had committed the crime, and Bobby gave the officer a statement and a description of the man he had seen at the rear of the store just minutes earlier.
Amy Eggers testified that she was a regular customer at the 7-Eleven and had arrived there shortly before 9:00 p.m. on August 9, 1994. She was playing video poker and was seated at the fifth and farthest machine from the door. She heard the door ringer, indicating that somebody had come through the front door, and looked up from her machine to see who had entered the store. An African-American man had entered the store wearing dark pants, a white T-shirt and white tennis shoes; she only saw his left profile. She looked back to her machine, but her attention was directed back to the counter area when the African-American man yelled, "Give me the money," and fired a gunshot over Prewitt's head. The gun was a black steel revolver with a wooden handle. Prewitt opened the cash register, and the assailant reached in, grabbed the money, backed away, and then shot Prewitt in the chest, killing him. After the shooting, the man turned and left the store, at which time she saw his right profile; she never saw the front of his face. After the shooting, the two other clerks who had been in the back room came out to help, and one of them called "911" for assistance. On October 12, 1994, Eggers attended a physical line-up in which Leslie was present. She saw the front of Leslie's face and both profiles and identified Leslie as the man who had shot Prewitt on August 9, 1994.
Kristen Motyka was working as a clerk in the 7-Eleven on August 9, 1994. During a lull, Kristen took a break to eat a hot dog in the back room of the store. The assailant entered the store, and Prewitt told Kristen that he would tend to the customer. Shortly thereafter, Kristen stated that she heard a "pop," which she believed was a box hitting the floor, and looked over her shoulder and around the corner to see an African-American man pointing a gun at Prewitt. She stated that the assailant was wearing a white T-shirt, had a long "jerri curl" hairstyle, and was pointing a black revolver at the wall behind Prewitt. She heard the assailant yell, "Give me the money," heard another "pop," and then heard Prewitt say, "Call 911." Kristen was shown a photo line-up and picked Leslie's picture as the person that she believed was the man she had seen shoot Prewitt. However, at a physical line-up, Kristen picked a person other than Leslie as the man she believed shot Prewitt. 1
Senior crime analyst David Horn testified that there was a bullet hole in the wall behind the counter approximately five to seven feet above the floor. The bullet was found in the storage area on the other side of the wall in a "Slurpee" cup box. Horn also stated that he processed the interior and exterior of the store for fingerprints, but neither he nor another crime scene analyst found any identifiable fingerprints.
The 7-Eleven store was equipped with a video surveillance system which recorded the killing. The videotape indicated that the killing occurred at 9:05 p.m. Detective Robert Leonard testified that he viewed the videotape of the killing and that Eggers' description of the assailant and how the killing occurred basically matched what was on the videotape.
On September 28, 1994, a telephone call came to Leonard through the police's Secret Witness program. The caller stated that the person who had killed the 7-Eleven clerk had told her of the crime. She identified the killer as "Wilbert," but did not know his full name because everybody called him "Tuggy." She gave the police directions to Tuggy's house, but was unsure of the exact address. The caller also told the police that they already had the murder weapon in their possession because Tuggy had sold the gun to a girl, the girl had placed the gun in her Cadillac which had been towed by the police, and when the girl got the car back the gun was not in the car. The caller never identified herself and was never identified by the police.
Leonard followed the caller's directions and eventually discovered that Leslie and his mother lived in the house that the caller had described. Leonard obtained a physical description and a photograph of Leslie and put together a photographic line-up. This photographic line-up was shown to all of the witnesses in this case.
Leonard then went to the police department to search for the gun which the caller suggested was in police custody. The bullets recovered from the 7-Eleven wall and Prewitt's body were .38 caliber, and Leonard searched for a matching gun. One of the weapons in police custody was a .38 caliber pistol recovered from the trunk of a bronze Cadillac Fleetwood which had been impounded from a park on Gowan Road and Lincoln Road. The police had impounded the car because it had a broken rear window and they believed that the car had been stolen. The park where the car had been towed from was located two blocks south of Leslie's home and approximately one mile from the 7-Eleven.
Leonard took the gun to firearms examiner Richard Good. The gun was black with a brown grip, which matched Eggers' description of the gun. Leonard stated that the gun was supposed to be double action, meaning that when the trigger was pulled the hammer came back (was cocked) and then was released, firing a shot. However, when Good examined the gun, he discovered that the trigger would not move and that the hammer had to be manually cocked before the gun could be fired. Leonard stated that the assailant in the video could be seen manually cocking the gun and then firing it. After examining both the gun and the bullets found in the Slurpee box and Prewitt's body, Good concluded that both bullets were fired from the gun found in the trunk of the Cadillac.
Leonard identified the owner of the bronze Cadillac Fleetwood as Rhesa Gamble. Leonard contacted Gamble on October 7, 1994, and Gamble gave a recorded statement to Leonard. In her statement, Gamble stated that she and Leslie were dating and were in love, but that she did not know his full name and that she called him Tuggy. She also stated that the murder weapon had originally belonged to Leslie and that she had purchased it from him for fifty dollars. Gamble also identified Leslie's photograph from the photo line-up.
After he talked with Gamble, Leonard, along with Detective James Franks, immediately went to Leslie's house to talk with him. Franks testified that they knocked on Leslie's door and an African-American man answered. Franks asked for "Tuggy," and the man stated, "There's no Tuggy here." Franks then asked to speak to Wilbert Leslie, and the man stated that he was Wilbert Leslie. Franks and Leonard took Leslie to the police station for questioning, and during the interview, Leslie denied owning a firearm and going by the name "Tuggy." When asked if he was familiar with the bronze Cadillac, Leslie stated that he knew of many Cadillacs. When asked if he was familiar with a Cadillac owned by Rhesa Gamble, Leslie first asked, "Rhesa who?," and then stated that he knew someone named Rhesa; however, Leslie denied that Gamble was his girlfriend. When Franks told Leslie that Gamble had indicated that she had obtained the murder weapon from him, Leslie gasped and stated, "Oh no." Franks testified that Leslie was frightened, nervous, surprised, and "totally caught off guard" by his statement. Leslie denied involvement in the killing, but at the conclusion of the interview, the police placed him under...
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