Atkins v. State, No. 27169

Docket NºNo. 27169
Citation112 Nev. 1122, 923 P.2d 1119
Case DateAugust 28, 1996
CourtSupreme Court of Nevada

Page 1119

923 P.2d 1119
112 Nev. 1122
Sterling Mark ATKINS, Appellant,
v.
The STATE of Nevada, Respondent.
No. 27169.
Supreme Court of Nevada.
Aug. 28, 1996.
Rehearing Denied Oct. 17, 1996.

Page 1121

[112 Nev. 1123] Theodore J. Manos & Associates and Laura L. Melia, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart Bell, District Attorney and James Tufteland, Chief Deputy District Attorney, and Christopher J. Owens, Deputy District Attorney, Clark County, for Respondent.

112 Nev. 1125] OPINION

SHEARING, Justice:

On January 16, 1994, the nude body of twenty-year-old Ebony Mason was discovered twenty-five feet from the road in an unimproved desert area of Clark County. The woman's body was found lying face down with hands extended overhead to a point on the ground where it appeared that some digging had occurred. A four-inch twig protruded from the victim's rectum. Three distinct types of footwear impressions were observed in the area as well as a hole containing a broken condom, a condom tip and an open but empty condom package.

In the opinion of the medical examiner, Mason died from asphyxia due to strangulation and/or from blunt trauma to the head. The autopsy revealed nine broken ribs, multiple areas of external bruising, contusions, lacerations, abrasions, and a ligature mark on the anterior surface of the neck. Mason's body also bore a number of patterned contusions consistent with footwear impressions on the skin of the back and chest. Finally, the autopsy revealed severe lacerations of the head and underlying hemorrhage within the skull indicating a blunt force trauma.

A police investigation led to the arrest of appellant Sterling Mark Atkins, Jr. ("Atkins") and Anthony Doyle in Las Vegas, Nevada. Atkins' brother, Shawn Atkins ("Shawn"), was also arrested, but his arrest took place in Ohio by agents of the Federal Bureau of Investigation ("FBI"). Upon his arrest, Shawn gave a voluntary statement to the FBI regarding the events leading up to Mason's death on January 15, 1994. Shawn stated that after returning to Atkins' apartment from a party that night, he, Atkins, and

Page 1122

Doyle encountered Ebony Mason, a mutual acquaintance, who was intoxicated and/or high on drugs. Mason agreed to accompany the men to Doyle's apartment to have sex with them. According to Shawn, Mason had consensual sex with Atkins and oral sex with Shawn, but she refused Doyle when he attempted to have anal sex with her. After these activities, Doyle agreed to drive Mason to downtown Las Vegas. Doyle drove a pick-up truck with Shawn, Atkins and Mason accompanying him, but instead of driving downtown, Doyle drove to a remote area in Clark County. Doyle was angry with Mason and demanded that she walk home. When she refused, Doyle stripped her clothes off [112 Nev. 1126] and raped her as Shawn and Atkins watched, and then both Atkins and Doyle beat and kicked her until she died

The State charged Doyle, Atkins and Shawn with one count each of murder, conspiracy to commit murder, robbery, first degree kidnapping and sexual assault. The State also filed a notice of intent to seek the death penalty. Thereafter, the district court granted Doyle's motion to sever trials and dismissed the robbery count against all three men. At a separate trial, commencing January 3, 1995, Doyle was convicted on all counts and sentenced to death for the murder. See Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996).

On February 13, 1995, prior to trial, Shawn entered into a plea bargain agreement wherein he pleaded guilty to first-degree murder and first-degree kidnapping and was sentenced to two concurrent life sentences with the possibility of parole. As part of the bargain, Shawn agreed to testify at Atkins' trial.

On March 20, 1995, Atkins' jury trial commenced. As the State's only eyewitness, Shawn testified that Atkins was not involved in Mason's beating and murder, but the State impeached Shawn with his prior inconsistent statements to the FBI and to witness Mark Wattley. At the conclusion of the guilt phase of the trial on March 30, 1995, the jury found Atkins guilty of murder, conspiracy to commit murder, first-degree kidnapping and sexual assault. At the conclusion of the penalty phase, the jury sentenced Atkins to death for the murder conviction.

Atkins first claims that there is insufficient evidence to support his conviction for sexual assault based upon the four-inch twig found inserted in Ebony Mason's rectum. Atkins contends that the crime of sexual assault requires a live victim. He asserts that there was no evidence adduced at trial regarding whether the twig was placed pre-mortem, peri-mortem, or post-mortem.

In Doyle, this court faced the identical issue in codefendant Anthony Doyle's case. NRS 200.366(1) defines sexual assault, but does not indicate whether the victim must be alive. 1 After [112 Nev. 1127] reviewing the language of the statute and the law in other jurisdictions with similar statutes which have dealt with this question, this court held that Nevada's sexual assault statute requires a live victim. "Although Nevada's sexual assault statute provides little guidance ..., we conclude that the better-reasoned interpretation is that the legislature intended 'person' in the rape statute to mean a living human being." Id. at ----, 921 P.2d at 914. In light of Nevada's necrophilia statute, this court reasoned that the Nevada legislature recognized the distinction between sexual assault perpetrated on a corpse as opposed to a live human being. Id. Accordingly, Atkins' conviction for sexual assault can only stand if sufficient evidence was adduced at trial to establish

Page 1123

that Mason was alive at the time the twig was inserted into her rectum.

Mason was found dead, unclothed, and with the twig protruding from her rectum. The medical examiner's testimony failed to establish whether Mason was alive or dead at the time the twig was inserted into her rectum. The autopsy revealed no evidence of contusion, laceration, or other trauma associated with Mason's rectum, evidence which would have supported the position that she was alive at the time of the penetration. Shawn's testimony also provides no guidance. He asserted that he did not view any of the events associated with the twig. It appears that Mason was killed, dragged into the bushes, and then penetrated with the twig. In any event, there was insufficient evidence to conclude that the penetration occurred prior to Mason's death and therefore, Atkins' conviction for sexual assault must be reversed.

Atkins also contends that the district court erred in allowing the State to introduce prior inconsistent statements Shawn had made to FBI Agent Larkin upon Shawn's arrest.

Trial courts have considerable discretion in determining the relevance and admissibility of evidence. Sterling v. State, 108 Nev. 391, 395, 834 P.2d 400, 403 (1992). An appellate court should not disturb the trial court's ruling absent a clear abuse of that discretion. Lucas v. State, 96 Nev. 428, 431-32, 610 P.2d 727, 730 (1980).

There are three separate excerpts from Shawn's testimony to which Atkins attributes error. We consider each in turn. First, during Shawn's direct examination, the following exchange occurred:

Q: Let me draw your attention, Shawn, to February 25th, 1994. Do you recall being arrested in Cleveland, Ohio by the representatives of the Federal Bureau of Investigation, the FBI?

A: Yes.

[112 Nev. 1128] Q: And after you were arrested by FBI agents, do you recall giving them a voluntary statement concerning what had taken place on the evening of January 15, 1994, in connection with Ebony Mason's death?

A: Yes.

Q: And in fact am I correct in stating that you drew them a little map, a little diagram of the area, where you thought the killing had occurred?

A: Yes.

Q: And as you spoke with FBI agents, they were taking notes. Is that correct?

A: Yes.

Q: Did they ask you to initial certain pages at the conclusion of the statement?

A: Yes.

Q: [Were] you truthful when you gave that statement to the FBI?

A: Yes.

Although Atkins cites to this testimony in his opening brief as impermissible, he fails to support his argument with any relevant authority. After review, we conclude that there is nothing objectionable about this line of questioning.

Second, during Shawn's redirect examination, the following sequence of questions and answers occurred:

Q: Now you told Defense Counsel that you don't remember Ebony saying anything with regards to a phone call. Do you recall telling the FBI that, "Ebony got outside the apartment, she was going to a telephone to report her rape to the police." However, your brother, the Defendant (who you may refer to as Bubba) "... talked her out of it, and Bubba and Ebony got back into the truck and snuggled up?"

A: Yes. But that's not how it was coming down.

Q: Did you say that to the FBI?

A: Yes, I did.

Q: Do you recall telling the FBI that Tony Doyle and your brother Bubba then began beating and kicking Ebony?

A: Yes.

Q: Do you recall telling the FBI that you told Bubba and Tony Doyle, "This shit's fucked up?" (Excuse my language.)

A: Yes.

Q: Do you recall telling the FBI that, "He did not watch what Bubba and Tony Doyle were doing while he ..."--meaning yourself--"was in the truck? And at some

Page 1124

point Bubba and Tony Doyle got back into the truck, turned on the radio and drove back to Las Vegas."

A: Yes.

[112 Nev. 1129] Atkins asserts that because Shawn agreed to the prosecutor's questions, his testimony was consistent with what he had previously told the FBI agents. Therefore, according to Atkins, this testimony does not fall under the prior inconsistent statement exception to the hearsay rule and it was improperly admitted.

Our review demonstrates that the above-referenced testimony involved both prior consistent and prior inconsistent statements. The prosecutor's questions themselves contained the...

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30 practice notes
  • Atkins v. Gittere, Case No. 2:02-cv-01348-JCM-BNW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • July 10, 2020
    ...and sexual assault. At the conclusion of the penalty phase, the jury sentenced Atkins to death for the murder conviction.Atkins v. State, 112 Nev. 1122, 1125-26, 923 P.2d 1119, 1121-22 (1996) (Respondents filed a copy of the opinion as Exh. 189 (ECF No. 93-12)). The judgment of conviction w......
  • McConnell v. State, No. 42101.
    • United States
    • Nevada Supreme Court of Nevada
    • December 29, 2004
    ...913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion)). 39. See, e.g., Atkins v. State, 112 Nev. 1122, 1134, 923 P.2d 1119, 1127 40. 484 U.S. 231, 241-46, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). 41. See Leslie v. Warden, 118 Nev. 773, 784-86, 59 ......
  • Leslie v. Warden, No. 36546.
    • United States
    • Nevada Supreme Court of Nevada
    • December 18, 2002
    ...46, 53-54, 692 P.2d 503, 509 (1985), holding modified by Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996); see also Atkins v. State, 112 Nev. 1122, 1134, 923 P.2d 1119, 1127 38. 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). 39. Id. at 246, 108 S.Ct. 546. 40. Id. 41. Compare NRS 200......
  • Kaczmarek v. State, No. 41556.
    • United States
    • Nevada Supreme Court of Nevada
    • June 7, 2004
    ...127, 136-37, 825 P.2d 600, 606 (1992). 84. See, e.g., Rippo v. State, 113 Nev. 1239, 1261, 946 P.2d 1017, 1031 (1997); Atkins v. State, 112 Nev. 1122, 1136, 923 P.2d 1119, 1128 (1996); McNelton v. State, 111 Nev. 900, 906 & n. 4, 900 P.2d 934, 937 & n. 4 (1995). 85. Floyd v. State, 118 Nev.......
  • Request a trial to view additional results
30 cases
  • Atkins v. Gittere, Case No. 2:02-cv-01348-JCM-BNW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • July 10, 2020
    ...and sexual assault. At the conclusion of the penalty phase, the jury sentenced Atkins to death for the murder conviction.Atkins v. State, 112 Nev. 1122, 1125-26, 923 P.2d 1119, 1121-22 (1996) (Respondents filed a copy of the opinion as Exh. 189 (ECF No. 93-12)). The judgment of conviction w......
  • McConnell v. State, No. 42101.
    • United States
    • Nevada Supreme Court of Nevada
    • December 29, 2004
    ...913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion)). 39. See, e.g., Atkins v. State, 112 Nev. 1122, 1134, 923 P.2d 1119, 1127 40. 484 U.S. 231, 241-46, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). 41. See Leslie v. Warden, 118 Nev. 773, 784-86, 59 ......
  • Leslie v. Warden, No. 36546.
    • United States
    • Nevada Supreme Court of Nevada
    • December 18, 2002
    ...46, 53-54, 692 P.2d 503, 509 (1985), holding modified by Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996); see also Atkins v. State, 112 Nev. 1122, 1134, 923 P.2d 1119, 1127 38. 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). 39. Id. at 246, 108 S.Ct. 546. 40. Id. 41. Compare NRS 200......
  • Kaczmarek v. State, No. 41556.
    • United States
    • Nevada Supreme Court of Nevada
    • June 7, 2004
    ...127, 136-37, 825 P.2d 600, 606 (1992). 84. See, e.g., Rippo v. State, 113 Nev. 1239, 1261, 946 P.2d 1017, 1031 (1997); Atkins v. State, 112 Nev. 1122, 1136, 923 P.2d 1119, 1128 (1996); McNelton v. State, 111 Nev. 900, 906 & n. 4, 900 P.2d 934, 937 & n. 4 (1995). 85. Floyd v. State, 118 Nev.......
  • Request a trial to view additional results

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