Harte v. State, 34227.

• Decision Date: 04 December 2000
• Docket Number: No. 34227.,34227.
• Citation: 116 Nev. 1054,13 P.3d 420
• Parties: Shawn Russell HARTE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

13 P.3d 420

116 Nev. 1054

Shawn Russell HARTE, Appellant, v. The STATE of Nevada, Respondent.

No. 34227.

Supreme Court of Nevada.

December 4, 2000.

Janet Cobb Schmuck, Reno, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

Appellant Shawn Russell Harte, in connection with co-defendants Latisha Babb and Weston Sirex, was indicted, tried before a jury and convicted of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. For the murder, the jury returned a verdict of death.

Harte contends on appeal that his conviction must be reversed and his judgment of death vacated because the district court erred by: (1) denying Harte's motion to suppress his confession as obtained without a valid waiver of rights and in violation of Harte's right to counsel; (2) granting the State's motion to exclude Harte's expert witnesses from testifying during the penalty phase; and (3) permitting the State during the penalty phase to introduce evidence of Harte's statements to show future dangerousness and permitting the State to argue his future dangerousness based upon that evidence. We affirm Harte's conviction and sentence.

FACTS

On October 14, 1997, two men were traveling toward Fallon in a vehicle loaded with their personal belongings on U.S. 95 when their vehicle was shot multiple times. The shooting resulted in damage to the vehicle including five bullet holes and two shattered windows. When the men arrived in Fallon, they reported the shooting incident to law enforcement officials. Churchill County Sheriff's Department (CCSD) deputies investigated the crime scene and found a radio scanner, bullet casings, shoe tracks and distinctive tire tracks.¹

Twelve days later, on October 26, 1997, sometime between 4:30 and 5:00 a.m., a supervisor of the Reno-Sparks Cab Company became aware that a company taxicab and driver, John Castro, had been missing since midnight. Local law enforcement agencies were notified, and a search was organized to find Castro and the missing taxicab. Meanwhile, between midnight and 6:00 a.m., several Cold Springs residents had noticed a Reno-Sparks taxicab parked on a neighborhood street. Ultimately, around 6:00 a.m., one resident discovered that the taxicab appeared to be occupied by a driver who was sleeping behind the wheel. This resident reported his discovery to the Reno-Sparks Cab Company, which, in turn, notified the Washoe County Sheriff's Department (WCSD).

WCSD deputies were dispatched to the missing taxicab's location shortly after 6:30 a.m. On arrival they found taxicab driver Castro slumped over in the driver's seat. Castro had a major wound in the back of his head and a large amount of blood coming from his nose and mouth; however, he was still alive and making raspy breathing sounds. Following Castro's transport to a hospital for medical attention, crime scene investigators collected a .22 caliber bullet casing from inside the taxicab.

Castro died within twenty-four hours. An autopsy revealed that the cause of death was a contact gunshot wound to the right-hand side of the back of Castro's head resulting in brain death.

Back in Churchill County, the investigation of the shooting on U.S. 95 led deputies to obtain a search warrant for appellant Harte's apartment, another residence, and his vehicle, which was believed to have been used by the perpetrators. On the evening of November 12, 1997, CCSD deputies conducted a traffic stop of Harte's vehicle, which was driven by Harte and also occupied by Latisha Babb and her child. Harte was advised of the search warrant and asked to accompany deputies to CCSD, where he was ultimately taken into custody.

During searches of Harte's vehicle, deputies recovered a .22 caliber pistol, which was later shown to have fired the bullet casing recovered from the taxicab driven by Castro at the time of his murder. Also in the vehicle were a magazine with .22 caliber bullets, other ammunition and radio scanners. During the search of Harte's residence, which he shared with Babb, deputies found in Harte's bedroom a wireless microphone, shoes with treads similar to the tread tracks found at the scene of the U.S. 95 shooting, and two rifles, one of which used ammunition consistent with the shell evidence found at the U.S. 95 crime scene. Also discovered in Harte's bedroom were newspaper stories about the Churchill County shooting and Castro's murder.

From their investigation on November 12, CCSD deputies suspected that Weston Sirex was involved in the Churchill County shooting. During the late evening hours, deputies went to Reno to locate and interview Sirex. Deputies met with Sirex at his place of employment, Whittlesea Taxi Company. There, a deputy explained to Sirex that another suspect was in custody in Fallon and that the deputy wanted to hear Sirex's side of the story. In response, Sirex became visibly shaken and talked about going north on Cold Springs Road, and stated that it started out to be a robbery and he was looking out the window when he saw the flash and heard the bang. As a result of these comments, he was asked to accompany deputies to WCSD.

During the early morning hours of November 13, 1997, Sirex was interviewed by WCSD deputies regarding Castro's murder. Sirex admitted to being involved in robbing and murdering Castro. According to Sirex, a Reno-Sparks taxicab was targeted for the robbery because that company did not have the Global Positioning System that would allow for locating the taxicab if an alarm was set off. He stated, "Initially it was just going to be just to rob him, not to kill him unless absolutely necessary. But I didn't see that happening. Then as we were headed down Cold Springs Drive, I was looking out the window, I heard the gun go off. I looked over just in time to see his head go down." Sirex thought they would shoot the taxicab driver for any kind of resistance, although Castro never offered any and did not even know he was being robbed prior to being shot. Sirex further admitted to carrying a.22 caliber handgun during the robbery and to taking from the taxicab and keeping at his residence various items including a pouch containing $84.00 and Castro's wallet. Sirex also admitted to being involved in the Churchill County shooting. Sirex was arrested for Castro's robbery and murder.

WCSD deputies searched Sirex's residence and seized a loaded .22 caliber pistol; a small pouch containing a map book cover, which was partially burned and bore writing which appeared to state "John Castro," an empty brown wallet that Sirex identified as Castro's, and miscellaneous personal items; a map directory book for the Reno-Sparks area; a clipboard; a black organizer with a Reno-Sparks Cab Company business card inside it; and a Reno-Sparks Cab Company slip.

WCSD deputies also went to Churchill County to interview Harte, who was in custody, and Babb. Both Harte and Babb admitted to being involved in Castro's murder; Harte admitted to shooting Castro in the head. Both Harte and Babb also admitted their involvement in the Churchill County shooting incident; Harte stated he shot at the vehicle for the purpose of robbing its occupants. Ultimately, Harte and Babb were arrested for Castro's murder and robbery.

In November 1997, Babb granted an interview to a reporter for the Reno Gazette Journal. In the interview, Babb stated:

I was the driver. It was maybe a 15-minute plan. We weren't out to get this specific person. I jokingly said, "Let's rob a cab. It's easy enough." So we did. I didn't hear the gunshot. I didn't even know he was shot until I pulled up alongside the car and heard him (the driver) breathing. The cab stopped in Cold Springs, and I pulled in front of it. I looked and saw him in the front seat with his head rolled back. When I thought about it later, I kept hearing his breath. I thought maybe someone else would rob a cab and they'd think he did it. . . .

Harte, Babb, and Sirex were indicted by a grand jury for murder with the use of a deadly weapon and robbery with the use of a deadly weapon. The State filed a notice of intent to seek the death penalty, alleging two aggravating circumstances: (1) the murder was committed in the commission of or attempt to commit robbery with the use of a firearm, see NRS 200.033(4); and (2) the murder was committed to avoid arrest and prosecution, see generally NRS 200 .033(5).

The three defendants were each appointed separate counsel. While awaiting trial, in October 1998, Harte sent a letter to a former girlfriend, which stated in part:

So this cab driver is just spurting off his mouth about how he got "ripped of" [sic] $1000 cash earlier, blah, blah, blah. Now what could that all have been about? Drugs. Fuck this piece of shit. Its [sic] because of people like him that I don't have a son or daughter. Fuck him.

I chambered a round. A CCI Stinger..22 caliber hyper-velocity hollow-pointed Lub-Nloy-coated 40 grain slug fired out of my Smith & Wesson semi-auto with 4 inch barrel. Point blank. An inch above the ear and two behind.

Boom. That simple. That easy. No REMORSE. Honestly.

I jumped up front and let the cab coast right in front of a drug dealers [sic] house in Cold Springs. Perfect. Windows were up, so it was noiseless (except that ringing in my ears!) Got out. Dark neighborhood, dark car.... We left. Went to Circus Circus. Played some games, gambled — continued our good time. Went to Taco Bell . . . and ate. Went home. Simple.

Nothing to it. Just another chore, like taking out the trash, except easier. And funner.

In March 1999, the case against Harte, Babb and Sirex proceeded to a joint jury trial. The trial resulted in guilty verdicts against Harte and his co-defendants of first-degree murder with the use of a deadly weapon and robbery...