Greene v. State, 27988
| Decision Date | 04 January 1997 |
| Docket Number | No. 27988,27988 |
| Citation | 931 P.2d 54,113 Nev. 157 |
| Parties | Travers Arthur GREENE, and Leonard Arthur Winfrey, Appellants, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
In the early morning hours of September 23, 1994, appellants Travers Arthur Greene and Leonard Arthur Winfrey drove to Sunrise Mountain in a stolen blue Camaro, armed with stolen weapons, an M-14 assault rifle and a handgun. They intended to experiment with the rifle to see how big a hole it would make when fired at something. Upon reaching the top of Sunrise Mountain, they spotted a powder blue Volkswagen with Deborah Farris and Christopher Payton sleeping beside it. Winfrey drove the Camaro up to the Volkswagen and stopped, shining the headlights on Farris and Payton. Armed with the assault rifle, Greene immediately exited the Camaro and shot Payton in the head. Greene then attempted to shoot Farris, but the assault rifle jammed. While Greene tried to unjam the rifle, Farris began pleading for her life, crying "please don't do this." Meanwhile, Winfrey, who was monitoring the situation from the car, exited the vehicle, pointed the handgun at Farris and pulled the trigger. However, the handgun also malfunctioned and no bullet discharged. At this point, Farris continued to plead with Greene and Winfrey not to kill her. Shortly thereafter, Greene succeeded in fixing the assault rifle, pointed it at her head and shot her in the neck, saying "shut up, bitch."
Heather Barker witnessed these killings while seated in the Camaro. Barker had been at Winfrey's apartment earlier that evening, and Greene and Winfrey had promised to give her a ride home. After the first shot was fired, Barker said to Winfrey, "oh, my God, did he shoot somebody, I want to go home." Barker also heard a female voice saying, "please don't do this, you could take anything, you could take my car, just please don't do this." Barker was a friend of Winfrey's but had not met Greene until that evening.
After the killings, Green and Winfrey got back into the Camaro. As they were driving away, Greene laughed about how it looked when the eyeballs popped out of Payton's head. He also derisively talked about how the blood bubbled out of Farris's neck when he shot her.
After leaving Sunrise Mountain, Winfrey drove to Barker's house and Greene cleaned the assault rifle in her bathroom. The three then went to Winfrey's apartment where they had met earlier that evening. Greene left in the car, Winfrey went up to his bedroom to sleep, and Barker walked home.
The next day, Phil Souza, Winfrey's roommate, noticed that Winfrey acted as if something was bothering him. When the eleven o'clock news showed a story about two people being killed on Sunrise Mountain, Winfrey became upset and began banging his head on the ground. Approximately 45 minutes later, Greene arrived and Souza overheard Greene say, "they found the bodies," and "we are not through yet." Winfrey made no statement regarding what had happened. The following day Souza approached a policeman on the street and told him what he had observed.
This information led to the investigation of both Greene and Winfrey and their subsequent arrest for the murders of Farris and Payton. On September 25, 1994, Greene and Winfrey were each charged by way of Information with: one count of conspiracy to commit murder; two counts of murder with use of a deadly weapon; and one count of possession of a stolen vehicle.
The State filed notice to seek the death penalty against both defendants, alleging the following circumstances: (1) the murder was committed to avoid or prevent a lawful arrest or to effect an escape from custody, NRS 200.033(5); (2) the murder was committed upon one or more persons at random and without apparent motive, NRS 200.033(9); (3) the defendant has, in the immediate proceeding, been convicted of more than one offense of murder in the first or second degree, NRS 200.033(12) 1.
The first jury trial was conducted jointly with Greene and Winfrey as co-defendants. However, due to incurable Bruton issues, the district court granted a mistrial to Greene. Thereafter, the first jury trial continued against Winfrey alone, and a second separate jury trial commenced against Greene. Both Greene and Winfrey were convicted of all charges.
Greene and Winfrey each had separate penalty hearings. Against Greene, the jury found the following aggravators for both killings: (1) the murder was committed upon one or more persons at random and without apparent motive, NRS 200.033(9); and (2) the defendant has, in the immediate proceeding, been convicted of more than one offense of murder in the first degree, NRS 200.033(12). Against Greene, the special verdicts reflect that the jury also found the following mitigating circumstances: (1) youth of the defendant at the time of the crime; and (2) any other mitigating circumstances to exist in this case. The jury determined that the aggravators outweighed the mitigators and consequently returned a death verdict against Greene. Greene was sentenced to death for both murder counts, six years for conspiracy to commit murder, a consecutive ten years and restitution of $1,000 for possession of a stolen vehicle.
Against Winfrey, the jury found the aggravating factor in Payton's murder to be that the defendant had, in the immediate proceeding, been convicted of more than one offense of murder in the first degree under NRS 200.033(12). The jury found the aggravating factor in Farris's murder to be that the murder was committed upon one or more persons at random and without apparent motive under NRS 200.033(9). However, the jury did not return a death verdict against Winfrey. Instead, Winfrey was sentenced to two consecutive life sentences without the possibility of parole for both counts of murder, six years for conspiracy to commit murder, a consecutive ten years and restitution of $1,000 jointly and severally with Greene for possession of a stolen vehicle.
Greene and Winfrey filed timely notices of appeal from the judgments of conviction. 2
Improper testimony
Greene asserts that the prosecutor improperly elicited testimony from witness Phil Souza, appellant Winfrey's roommate at the time of the murders, which constituted prior bad act evidence not falling under any exception enumerated in NRS 48.045(2).
NRS 48.045(2) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Although evidence may be admissible under the exceptions cited in NRS 48.045(2), the determination whether to admit or exclude evidence of separate and independent criminal acts rests within the sound discretion of the trial court, and it is the court's duty to strike a balance between probative value and its prejudicial dangers. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).
We conclude that Souza's testimony does not constitute improper prior bad act evidence as Greene contends. The prosecutor's elicitation of Souza's testimony that Greene was not finished "killing" is admissible as evidence of Greene's conspiracy with Winfrey to commit murder, one of the charges against him. If this evidence was improper for any reason, Greene received the benefit of a jury admonishment and therefore, there is no error.
Greene also contends that other testimony given by Souza was improper witness intimidation evidence because "the prosecutor obviously intended to imply to the jury that Greene was the source of the threat to Souza's parents." Greene asserts that there is no evidence to corroborate such an implication.
A prosecutor's references to or implications of witness intimidation by a defendant is reversible error unless the prosecutor also produces substantial credible evidence that the defendant was the source of the intimidation. Lay v. State, 110 Nev. 1189, 1193-94, 886 P.2d 448, 450-51 (1994).
Greene's argument that Souza's testimony that his parents were "scared" qualifies as evidence of witness intimidation by Greene is tenuous. At worst, this constitutes a single, indirect reference to witness intimidation by Greene. Moreover, there is no implication that Souza was reluctant to testify because of fear of retaliation by Greene. After listening to Souza's testimony, one might even reach the conclusion that Souza's parents are scared of Souza himself. Accordingly, we conclude that even if this qualifies as improper witness intimidation evidence, it is harmless beyond a reasonable doubt. Id., at 1192-95, 886 P.2d at 450-51.
Impeachment of witness Heather Barker
Greene contends that the district court erred in prohibiting defense counsel from questioning witness Heather Barker concerning her testimony in a prior unrelated case. Greene asserts that Barker's "drug usage and lying under oath about drug usage are both highly relevant to the truthfulness of a witness." Greene argues that the evidence is admissible pursuant to NRS 50.085(3). 3
In the prior unrelated case, Barker had been asked whether she had taken any drugs before giving testimony, to which she answered no. She subsequently consented to a urine test. The positive results of that test revealed some level of controlled substance in her system. The district court in the prior case sealed Barker's test results, and the type and amount of controlled substance in her system was never revealed. In the instant case, Greene wanted to...
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