Echavarria v. State

Decision Date03 September 1992
Docket NumberNo. 22354,22354
Citation108 Nev. 734,839 P.2d 589
PartiesJose Lorrente ECHAVARRIA and Carlos Alfredo Gurry, Appellants, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Schieck & Derke, Las Vegas, for appellant Echavarria.

Morgan D. Harris, Public Defender and David Wall, Deputy Public Defender, Las Vegas, for appellant Gurry.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, and William Henry, Deputy Dist. Attys., Las Vegas, for respondent the State of Nev.

OPINION

PER CURIAM:

Echavarria shot and killed an FBI agent who was in the process of arresting Echavarria for attempted bank robbery. Gurry was identified as an accomplice and was arrested shortly after the incident at the Las Vegas apartment he and Echavarria shared. Echavarria fled to Mexico, but was apprehended by the Mexican authorities and returned to the United States. Echavarria and Gurry were each found guilty of, among other felonies, first-degree murder with the use of a deadly weapon. Echavarria was sentenced to death. Gurry received a sentence of life in prison with the possibility of parole. Both men appealed their convictions. Echavarria also appealed his sentences.

Facts

On the morning of June 25, 1990, Jose Lorrente Echavarria, disguised as a woman and wearing a gauze pad on his cheek and a cast or sling on his arm, entered a Las Vegas branch of the Security Pacific Bank with the intention of robbing it. Echavarria previously had surveyed the bank and determined that no security guards were employed there. When Echavarria approached a bank teller and eventually pointed a gun at her, the teller screamed and jumped back from the counter, causing Echavarria to abandon his holdup attempt and start walking towards the exit door of the bank.

FBI Special Agent John Bailey, who happened to be at the bank on Bureau business at the time of the incident, inquired about the commotion. Upon learning that Echavarria had pulled a gun on a bank teller, Bailey turned to follow Echavarria, pulled out his gun, and yelled something akin to "halt, this is the FBI." Echavarria turned, glanced at Bailey, and continued to walk towards the exit. Bailey then fired a shot that shattered the bank's glass front door. Echavarria stopped. Bailey grabbed the gunman, held him against the wall, and ordered him to drop his gun, which Echavarria eventually did.

Acting swiftly, Agent Bailey frisked Echavarria, requested that someone call the FBI office, and asked a bank employee to retrieve his handcuffs from his car. Bailey seated Echavarria in a chair while he waited for the handcuffs. The bank employee returned with the cuffs, but before Bailey could shackle Echavarria, he jumped out of the chair and collided with Bailey. During the ensuing scuffle, Bailey fell to the ground and Echavarria, retrieving his own gun, fired several shots at the downed agent. Echavarria then ran from the bank. Bailey was transported to a hospital, where he succumbed to three gunshot wounds.

The trial evidence supported the State's theory that after exiting the bank, Echavarria ran to his blue Firebird where the getaway driver, Carlos Alfredo Gurry, was waiting and the two sped away. A police officer who arrived at the crime scene shortly after Echavarria had fled discovered a motorcycle in the handicap parking space outside the bank. An investigation of the vehicle identification number on the motorcycle revealed Echavarria as the owner. A DMV check disclosed that the license plate attached to the motorcycle belonged to another vehicle. The rightful owner of the license plate identified Gurry as the person he had seen lurking around his motorcycle on two mornings shortly before the bank incident. Testing revealed Gurry's fingerprints on the stolen plate.

Information from a wallet which Bailey had removed from Echavarria during the frisk quickly led investigators to the apartment shared by Echavarria and Gurry. The license plate belonging to Echavarria's motorcycle and a screwdriver were found on the walkway in front of the apartment. Inside the apartment, clothes were strewn about the living room floor. In a dumpster outside the apartment police found a Security Pacific Bank Visa credit card application with both Echavarria's and Gurry's fingerprints on it, and a business card with C. Williams Costume Shop written on the back. When questioned, clerks at the costume shop remembered two Hispanic men who came into the store a few days before the attempted robbery and looked at afro wigs and arm casts, although they could not remember if the men purchased anything.

Gurry was arrested when he returned to his apartment the afternoon of the incident. Initially, Gurry stated that he had been at a friend's house working on a car since 9:00 a.m. Later, Gurry told the FBI that he was scared and had lied about his first story. Gurry stated that he had actually borrowed Echavarria's car on the morning of June 25, 1990, to take care of an immigration problem and some errands, and that he thereafter spent the remainder of the morning at the apartment. Gurry reported that Echavarria, looking desperate, came into the apartment about noon, changed clothes and left in a hurry. Gurry said that Echavarria's behavior frightened him, so he called a friend to pick him up. Gurry allegedly stayed about half an hour at the friend's house, then returned home.

Meanwhile, Echavarria headed south in his blue Firebird, arriving at the home of a former girlfriend in Juarez, Mexico, in the early morning of June 26, 1990. Echavarria convinced the former girlfriend, Maria Garcia, to give him six hundred dollars before leaving. Echavarria next contacted Maria's brother, Jorge Garcia, for help. Jorge bought an airline ticket for Echavarria and took him to the airport. At Echavarria's request, Jorge also buried two guns and abandoned the blue Firebird along the highway. 1

The Juarez police arrested Echavarria at the airport at about 8:30 p.m. on June 26, 1990. The next morning, Echavarria signed a written statement confessing to the murder of Agent Bailey. Echavarria was turned over to the FBI after his confession, and subsequently returned to the United States.

Echavarria and Gurry were each indicted on five counts: first-degree murder with the use of a deadly weapon, burglary, attempted robbery, escape and conspiracy. The State had to conduct a second grand jury to indict Gurry because the district court found that the evidence against Gurry in the first grand jury was insufficient and the prosecutor had misled the grand jury and failed to present exculpatory evidence.

Before trial, Echavarria moved to suppress his Juarez confession on the grounds that he had confessed after being subjected to physical torture and abuse while in the custody of the Mexican authorities. After a two-day evidentiary hearing, the motion was denied.

Trial commenced on March 15, 1991, and the guilt phase concluded with jury verdicts of guilty on all counts against Echavarria. Gurry was found guilty of all counts except the escape charge, which the district court had dismissed for lack of evidence.

After the penalty phase of the trial, the jury found three aggravating circumstances relating to the murder committed by Echavarria and sentenced him to death. The jury found four mitigating circumstances in favor of Gurry and sentenced him to life in prison with the possibility of parole. 2 The district court also sentenced each appellant to additional prison time for the other felonies. Appellants' motion for a new trial was denied.

Discussion

Each appellant raises several allegations of error. Those raised by both appellants will be treated first, followed by assignments of error relating to Echavarria, and then Gurry.

Juror misconduct.

Both appellants raise allegations of juror misconduct, although Gurry challenges only the jurors' conduct during the guilt phase of the trial, while Echavarria contends that misconduct occurred during both the guilt and penalty phases. These allegations were considered in connection with a motion for a new trial which was denied by the district court after an evidentiary hearing. 3

The allegations of juror misconduct are primarily based upon the testimony of juror Ardys Pool, who contacted defense counsel after the trial concluded and disclosed the following purported instances of impropriety by certain jurors.

Juror Charles Ivy, who served as foreman, failed to indicate on a written questionnaire or during voir dire that he had been the victim of a crime. At the evidentiary hearing on juror misconduct, Ivy admitted mentioning to some of the other jurors during a recess that he had been in a fight as a youth many years ago in which he was beaten by men with tire irons and hospitalized. Ivy indicated that he did not consider himself to be a victim of a crime, but instead considered the incident a fight.

In Lopez v. State, 105 Nev. 68, 89, 769 P.2d 1276, 1290 (1989), we stated that when a juror fails to reveal potentially prejudicial information on voir dire, the relevant question is whether the juror is guilty of intentional concealment, the answer to which "must be left with the sound discretion of the trial court." As Ivy's testimony indicates that he did not view the 24-year-old incident as a criminal act, the district court was well within its discretion in determining that Ivy did not intentionally conceal information from the court.

Juror Thomas Stramat, upon learning that he was a potential juror in a capital case, went to the public library and looked up the definition of murder. He also examined a Catholic Encyclopedia which he kept in his home concerning murder and capital punishment. He recorded his finding and carried them with him throughout the trial and deliberations. He did not show his findings to the other jurors, although he did comment that his religion and his training allowed him to...

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