Evans v. State

Decision Date24 July 2001
Docket NumberNo. 35641.,35641.
PartiesVernell Ray EVANS, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

28 P.3d 498
117 Nev. 609

Vernell Ray EVANS, Appellant,
The STATE of Nevada, Respondent

No. 35641.

Supreme Court of Nevada.

July 24, 2001.

28 P.3d 505
JoNell Thomas, Las Vegas, for Appellant

Frankie Sue Del Papa, Attorney General, Carson City, Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.




In 1994 appellant Vernell Ray Evans was convicted of burglary and four counts of first-degree murder and sentenced to death. This court affirmed his conviction and sentence. He then filed a post-conviction petition for a writ of habeas corpus, which the district court denied without holding an evidentiary hearing. Evans appeals.

The overarching issue is whether any of Evans's claims warranted an evidentiary hearing. We conclude that a hearing is not necessary to assess the claims, and we affirm the district court's order insofar as it upholds Evans's conviction. However, we conclude that his trial and appellate counsel were ineffective in failing to challenge arguments made by the prosecutor during the penalty phase of the trial. We therefore reverse the district court's order in part, vacate Evans's death sentence, and remand for a new penalty hearing.


In September 1994, a jury convicted Evans of burglary and four counts of first-degree murder. After a penalty hearing, the jury found that the mitigating circumstances did not outweigh the aggravating circumstances and imposed four death sentences. The district judge also entered a consecutive ten-year prison term for the burglary conviction. This court affirmed Evans's judgment of conviction in Evans v. State,1 from which the following facts are largely taken.

Around 1:00 a.m. on May 1, 1992, officers of the Las Vegas Metropolitan Police Department responded to a report of a shooting at a Wardelle Street apartment. They discovered four people shot to death: Jermaine Woods, Steven Walker, Lisa Boyer, and Samantha Scotti. Scotti and her eighteen-month-old son, Francois, were residents of the apartment.

Four-year-old Adriana Ventura (Adriana) and her mother and infant sister also resided at the apartment. Adriana witnessed the murders and testified at trial to the following. Two men entered the apartment carrying guns. Adriana referred to the men as "Scary Eyes" and "Little Ray." The intruders first shot the two men already in the apartment, Woods and Walker. They then shot Scotti, who was in the bathroom, and Boyer, who was in the bedroom. Adriana could not remember how many times the two women were shot or which one of the intruders fired the shots, and she did not see how the men left the apartment. Sometime thereafter, Adriana's mother, Alicia Ventura (Ventura), called the apartment. Adriana answered and told her mother that Scotti was dead. After that, Adriana went to the apartment next door and told the neighbor that everyone had been killed.

Adriana testified that she did not know "Scary Eyes," but she had seen "Little Ray" before at the apartment. Adriana was unable to identify Evans as "Little Ray" either in court or in a lineup at the jail. However, Ventura testified that Adriana usually referred to Evans as either "Little Ray" or "Uncle Ray."

28 P.3d 506
Ventura testified that earlier that day (April 30) four men had shown up at the apartment when she, Scotti, and Walker were there. Two of the men were members of a gang at odds with Walker's gang, and one of the men called Scotti a "snitch bitch" and wanted to fight her. Eventually the four men left. Boyer also arrived at the apartment while the four men were there. She was trying to get away from her boyfriend, Everett Flowers, who had recently put a gun to her head and threatened to kill her

Between 7:00 and 7:30 p.m., Ventura received a telephone call from Evans. Evans warned her about living with Scotti, who was a "snitch bitch" and was going to "get it some day." Ventura told Scotti about the call, but Scotti was unfazed, having received threats before.

At 10:30 p.m. Ventura left with her infant daughter for a friend's apartment to do laundry. Around midnight, Ventura spoke to Scotti on the phone. Scotti sounded normal and asked Ventura to bring some rock cocaine back to the apartment. Ventura obtained the cocaine and called back about thirty minutes later. Her daughter Adriana answered the telephone and said that Uncle Ray had come in and shot everybody. Ventura told Adriana to take Francois and go to the apartment next door.

Jeffery Grice, who lived in the apartment next door to the crime scene, testified that he heard apparent gunshots that night. Fifteen minutes later, Adriana pounded on Grice's door. When he let her in, she said, "They're all dead.... Uncle Ray-Ray came in, and they shot them all dead."

Shirannah Rice testified that Evans had admitted his involvement in the murders to her in a conversation on November 8, 1992. Evans told Rice that Scotti had been working for the police and had set up "Double R" (a nickname of Richard Powell's) in a drug deal and Double R went to jail. Double R therefore wanted to kill Scotti upon his release. They chose the night following the Rodney King verdicts because the police were occupied with riots in West Las Vegas. Evans said that he went to Scotti's apartment and was let in. After leaving the door unlocked, Evans signaled from the window, and his partner came in armed. Evans first shot Walker and then Woods. Evans then went to the bedroom where he and his partner shot Boyer. Next, they went into the bathroom and shot Scotti numerous times. Evans said they wanted to make her suffer. In another conversation a few months later, Evans told Rice that he was concerned Adriana could be a witness as she got older and that "they had better get her out of town if they know what's best for her."

Tina Jackson testified that Evans made admissions to her in November 1992. Evans told her that he knew Ventura had been talking to her about the crimes and that he "did do it." He showed her a gun and bullets and said they were for her if she said anything. A few days later, Evans approached Jackson, pushed her against a wall, and warned her again to keep her mouth shut. Afraid of Evans, Jackson soon left the Las Vegas area.

Laboratory tests revealed that projectiles recovered from the heads of Woods and Walker were consistent with bullets fired from a .38 special or a .357 magnum. Two projectiles from Scotti's body came from the same .38 special or .357 magnum used to kill the two men, and another was consistent with a 9-millimeter weapon. All three projectiles fired into Boyer were consistent with the 9-millimeter used to shoot Scotti.

A palm print lifted from a closet door in the apartment matched Evans's left palm. Other prints were matched to Flowers. Both Evans and Flowers had lived in the apartment but had moved out weeks before.

Joseph Salley, the father of Ventura's younger daughter, testified as a rebuttal witness regarding admissions made to him by Evans. In July 1992, with Evans present, Powell and Flowers told Salley about the murders. Powell described how Evans had shot Walker, Salley's "homey." At some point during this discussion, Evans jumped up and exclaimed that he was a "born killer." Two weeks later, Salley met Powell and Evans to purchase crack cocaine from them. Evans told Salley that he better pay Powell after selling the cocaine or: "I'll have to do you like I did your homeys." Evans also said

28 P.3d 507
that Walker and Woods had been in the wrong place at the wrong time because the intended victims were "two bitches."

At the conclusion of the guilt phase of trial on September 10, 1994, the jury found Evans guilty of burglary and four counts of first-degree murder. The penalty phase commenced on September 26, 1994.

The State presented evidence that Evans had a 1992 felony conviction for leaving the scene of an accident, had a 1989 felony conviction for battery with the use of a deadly weapon, and was facing drug trafficking and parole violation charges. Members of the victims' families testified about their losses.

In mitigation, Evans offered his youthful age and the testimony of psychiatrist Dr. Norton Roitman and of family members. Dr. Roitman testified that although Evans was not mentally ill, he suffered from anxiety illness. His family testified that he was not a bad person and asked for mercy on his behalf. Evans also exercised his right of allocution. Although he did not specifically take responsibility for the murders, he said that he had made mistakes in his life and would change them if he could. He expressed concern for his family and daughter and asked the jury to consider giving him a life sentence.

The jury returned death penalty verdicts on all four counts of first-degree murder. The jurors found beyond a reasonable doubt three aggravating circumstances on each murder count. They found all four murders were committed by a person previously convicted of a felony involving the use or threat of violence and by a person who knowingly created a great risk of death to more than one person. For the murder of Scotti, they also found the murder involved torture, depravity of mind, or the mutilation of the victim. They found that the other three murders were committed to avoid or prevent a lawful arrest. The jurors also found that the aggravating circumstances were not outweighed by mitigating circumstances.

Evans filed a motion for a new trial, which was denied. He separately appealed the judgment of conviction and the denial of his motion for a new trial. This court affirmed his conviction and dismissed the appeal of the denial of his motion.2

In May 1998, Evans petitioned the district court in proper person for a post-conviction writ of habeas corpus. In August 1999, appointed counsel filed a supplemental petition. The district court denied the petition without holding an evidentiary...

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