Garner v. State
| Decision Date | 23 August 2000 |
| Docket Number | No. 34569.,34569. |
| Citation | 6 P.3d 1013,116 Nev. 770 |
| Parties | Tyrone Lafayette GARNER, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
JoNell Thomas, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
BEFORE THE COURT EN BANC.
Early in the morning on May 5, 1998, appellant Tyrone Lafayette Garner drove Charles Randolph to a bar in Las Vegas. Randolph entered the bar, shot the bartender to death, and stole cash and video equipment. After a jury trial, Garner was convicted of conspiring to commit robbery, first-degree murder with use of a deadly weapon, and three other crimes. Garner contends that: there was insufficient evidence to convict him; the State improperly commented on his attempt to negotiate a deal with police; and the jury instructions on voluntary intoxication, conspiracy, and deliberation and premeditation were erroneous. This appeal also presents the issue of how this court's recent decision, Byford v. State, 116 Nev. ___, 994 P.2d 700 (2000), should apply to convictions which are not final but were entered before Byford was decided.
Just before midnight on May 4, 1998,2 John Shivell started the graveyard shift as a security guard at Angel Park Apartment complex in Las Vegas. The guard shack was at the front of the complex, and Doc Holliday's, a bar, was immediately to the west. Shivell parked his car in the parking lot at Doc Holliday's where he could see it from the guard shack. Around 1:00 a.m. (May 5), Shivell heard a "sharp barking-type laugh" coming from two men who were approaching a car parked near his own. The men's car was facing the bar and had a view of the bar's two entrances and the entrance to the parking lot. The man approaching the passenger side of the car appeared to be stockier than the one on the driver side, and the two seemed to be conversing as they got in the car. The car then started up, pulled away without its lights on, and went behind Doc Holliday's, where the lights came on. The car turned south on Durango Drive and then east on Westcliff Drive, passing by Shivell and the guard shack. He identified it as an older model Cadillac. He saw two occupants, but thought there might have been a third because there seemed to be "a hump" behind the driver. Shivell decided to call Doc Holliday's. He got no answer, dialed again, and again got no answer. He then called the police, who arrived about ten minutes later.
Inside Doc Holliday's, Las Vegas Metropolitan Police found Shelly Lokken, the bartender, handcuffed and lying face down in the bar's cooler with two gunshot wounds to the head. A deformed bullet and a 9-millimeter cartridge case were on the floor of the cooler. The manager at Doc Holliday's found that the bar's security videocassette recorder (VCR) and multiplexer were gone. (A multiplexer allows multiple views to be monitored on a single screen.) Cash totaling $4,629.00 had been taken from the safe, cash register, and gaming drawer.
JoAnn McCarty was a major witness for the State. On the evening of May 4, she and other persons, including Charles Randolph and appellant Garner, were smoking crack cocaine at a trailer in Las Vegas. Garner and Randolph did not have money or cocaine so McCarty shared some of her own cocaine with them. Garner and Randolph also got some cocaine on credit from another person, Jay, but when they asked for more, Jay refused. About ten minutes after this refusal, Garner and Randolph left the trailer in Garner's Cadillac.
The two men returned to the trailer a couple of hours later. McCarty noticed that they were "hyper." They had also returned with crack cocaine and money. McCarty estimated that Randolph had a bag holding two hundred to five hundred dollars' worth of cocaine. Garner had less, maybe two hundred dollars' worth. Garner also had a lot of small bills of money, folded and tied with a rubber band. Randolph said he had got money from his attorney and loaned some to Garner. According to McCarty, Garner Garner also asked if anyone there wanted a VCR.
McCarty and another woman then left with Garner and Randolph in Garner's Cadillac. They were getting high and being loud when Garner said to quiet down because there was "heat" in the car. He told McCarty that there was a gun at her feet. McCarty looked down and saw a white plastic bag with a gun in it. They then drove to a motel, where Garner went in and registered while the other three waited at the car. He came back, wrapped the bag holding the gun in a towel, took it upstairs to their motel room, and placed it behind the toilet tank. McCarty testified that the four then "got high, partied, had fun, just took showers, some got naked, a few sexual activities." Both men "had lots of money," which they shared with the women. Randolph even gave money to Garner. Randolph and McCarty prepared to go to the closest casino and gamble, and he gave her two or three hundred dollars. Randolph never made it out the door with McCarty, however. He looked "kind of spooked" so McCarty walked to the casino alone. She gambled for about an hour, but when she returned, no one was in the motel room. McCarty then made her way back to the trailer. Garner was there, but not Randolph, whom she did not see again.
McCarty and a friend, Gail Rancher, then left with Garner in his Cadillac to go to another motel. On the way, Garner gave Rancher some money, and she bought more cocaine. They went to a Best Western, where Garner registered. They then went up to the room, used cocaine, and engaged in sexual activities. Around noon (May 5), the three were watching television in the room when there was a news report of a murder at a bar involving a Cadillac that looked like Garner's. Garner "really tuned in" and lost his interest in getting high. He immediately jumped up, got dressed, said that he was going to get his car painted, and left. He came back after about half an hour. The atmosphere had become "weird" for McCarty and Rancher. They went in the bathroom and discussed how to leave. Garner was sitting on the bed, holding the phone. McCarty thought that she overheard Garner saying something about "`our car' and the news," but she was not sure if he was speaking to anyone on the phone. McCarty and Rancher told Garner, untruthfully, that McCarty was pregnant and feeling sick, and they left the room. Because they had no money, they tried unsuccessfully to get Garner's room deposit from the motel clerk. They then started to catch a bus, but returned to the front desk and told the clerk that they thought that Garner was involved in the murder reported on the news. McCarty called Secret Witness from the front desk, while the motel owner called the police. The police soon arrived.
A police officer spoke to McCarty and then went to the motel room and spoke to Garner. Garner admitted that he owned a Cadillac but said that he had loaned it to a friend, who currently had it. Based on what McCarty had told him, the officer thought that the car might be nearby so he went in search of it. He found it in a parking lot about five blocks away.
A police detective arrived and interviewed Garner at the Best Western. Garner said that he had lent his car to his friend Larry so that Larry could deliver some rock cocaine. He said that the night before he had lent the car to someone named Charles, whose last name he did not know. Garner consented to a search of his motel room, and the detective found $459.00 in small bills wrapped in a rubber band under the mattress. The detective also found a set of keys to a GM car. Garner admitted that the keys were to his car, but said he gave another set to Larry. He also said that there was no way his car was involved in the Doc Holliday's crime, and he consented to a search of his car whenever it was found.
A crime scene analyst processed Garner's car. He found the entire outside of the car, metal and windows, was covered with an oily film that precluded processing the exterior for fingerprints. Inside the car he found a nearly empty spray bottle of Armor All, the apparent source of the film. In the car's trunk he found a VCR and a multiplexer. The VCR had a videotape in it, which was handed over to detectives. The trunk also held a plastic grocery bag containing a 9-millimeter handgun wrapped in a chamois cloth. Forensic lab analysis later showed that the handgun had fired the cartridge found at the murder scene.
According to Detective James Vaccaro's narrative at the trial, the surveillance videotape from Doc Holliday's at the time of the murder showed the following. Lokken, the bartender, was working alone. A man, later identified as Charles Randolph, entered and sat at the bar. (Lokken knew Randolph, who worked as a cook at the establishment.) Randolph then stood up, pulled a handgun from his jacket, and leaped over the bar, confronting Lokken. The two then went back towards the cooler. Randolph later emerged from the cooler area and went to various parts of the bar, including the cash register, gaming drawers, and office.
Detectives tape-recorded interviews of Garner at the jail on May 5 and May 8.3 At the beginning of the May 5 interview, Garner asked what "guarantees" he would get for his statement and said that he needed "something to work with too." A detective responded:
I will guarantee you that if we don't have any evidence that you were, had nothing to do with this robbery and murder that we're talking about, and we don't have any evidence that you weren't in your car at the time that this robbery and murder occurred, then we don't have any evidence to charge you with.
Garner asked for the guarantee in writing, but was...
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