Honeycutt v. State

• Decision Date: 31 October 2002
• Docket Number: No. 35466, 35468.,35466, 35468.
• Citation: 118 Nev. 660,56 P.3d 362
• Parties: Todd Michael HONEYCUTT, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

56 P.3d 362

118 Nev. 660

Todd Michael HONEYCUTT, Appellant, v. The STATE of Nevada, Respondent.

No. 35466, 35468.

Supreme Court of Nevada.

October 31, 2002.

Mace J. Yampolsky, Las Vegas, for Appellant.

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

Before SHEARING, AGOSTI and ROSE, JJ.

OPINION

SHEARING, J.

A jury convicted Todd Michael Honeycutt of one count of kidnapping, two counts of sexual assault, and one count of solicitation to commit murder. Honeycutt appeals these convictions, claiming numerous instances of error that both individually and cumulatively denied his right to a fair trial. We find that Honeycutt was not denied his right to a fair trial. Accordingly, we affirm the judgment of conviction.

FACTS

On May 15, 1998, the victim and her friend, Janine Fischer, were on vacation at the Luxor Hotel in Las Vegas. That evening, both women met Honeycutt at the Hard Rock Café bar, shared several drinks and began talking. After Fischer left, the victim stayed with Honeycutt in the bar. The victim testified that Honeycutt tried to kiss her, but she pushed him away, stating that she did not like to kiss in public. Shortly thereafter, the victim told Honeycutt that she wanted to leave, and he offered to take her to her hotel. She agreed to go with him and entered his van. While the van was parked, Honeycutt began kissing the victim's lips and breasts.

The victim testified that she resisted Honeycutt and told him she wanted to go back to the hotel. Honeycutt threw her down between the passenger seat and the driver's seat. He lay on top of her and pushed his hand across her throat. She said: "He choked me until I thought my eyes were going to pop out, and my face got extremely hot and red." She testified that he began to pull her pants off while holding her down. She told him to wait so she could get a condom from her pocket. She struggled with him and tried to get up, but Honeycutt pulled her down by the legs and neck.

The victim stated that she began to cry and noticed that Honeycutt had his pants down and his penis exposed. He forced her to perform fellatio on him. She tried to bite him, and he slapped her, saying "you're going to get it now." Honeycutt threw her over the back seat and penetrated her anally. The next thing she remembered was Honeycutt moving off her and back to the driver's seat. She pulled her pants back on and moved back to the front seat, and Honeycutt drove her to her hotel. When asked why she stayed in the van with him, she stated, "I was afraid that I couldn't run. I couldn't move, and I was afraid he was going to run me over."

Honeycutt's testimony differed. He testified that he asked the victim if he could kiss her and she agreed. He stated that when they got in the van, they continued kissing, and he undid her shirt. He stated that the victim was very responsive, and he asked her if she wanted to get into the back seat with him. She replied "yes." Honeycutt testified that the victim undid his pants and performed fellatio on him. She asked if he had any condoms and then looked in her pockets to see if she had one. When Honeycutt tried to penetrate her vaginally, she told him to stop and instead penetrate her anally. He further testified that the victim said nothing when they were having sexual intercourse. Afterwards, Honeycutt and the victim climbed into the front seat. Honeycutt stated that he saw about $200.00 in her purse and took it, but he denied taking the money when she asked. He returned her to the Luxor Hotel, and the victim called Honeycutt "an asshole" and told him to "drop dead."

Sean Ferrell, a bystander, testified that at about 5:45 a.m., the victim approached him "out of nowhere" in front of the Luxor Hotel and asked him to remember a license plate number. She told him she had been sexually assaulted and fell against him "like a rag doll." She was shaking and began crying. He noticed no tears or rips in her clothing. Betty Jo Davis, a security officer at the Luxor Hotel, testified that the victim came to the security office that morning. Davis testified that when she arrived in the office, the victim was sitting in the room with her knees drawn up, crying hysterically and unable to speak. She stated that the victim told her that Honeycutt had sexually assaulted her through anal intercourse and that she was bleeding.

Richard Antal and John Maholick, security officers at the Luxor Hotel, corroborated Davis's account. They stated that the victim gave a voluntary statement about the assault that was videotaped and played at trial. They both agreed that the victim was crying and difficult to understand throughout most of the interview. They also testified that they noticed no bruises or marks on the victim.

The State and the defense introduced contradictory medical testimony regarding bruising on the victim's neck and rectal area. Linda Ebbert, the State's witness, testified that she examined the victim at the hospital with a standard sexual assault kit and used Toludine Blue Dye to test her rectal and vaginal areas for bruising. She pointed out some visible lacerations, abrasions, and redness in the victim's rectal area. She further testified that tears can occur, but are not common, in consensual anal intercourse. She also testified that the victim told her that her neck was sore, but Ebbert noticed no bruising. The defense witness, Dr. Mohamed Eftaiha, testified that Ebbert's findings were not conclusive evidence of nonconsensual anal intercourse. In fact, he concluded that the absence of bruises on the buttocks and neck indicated to him that the victim had possibly consented.

Honeycutt was initially tried on two counts of sexual assault and one count of kidnapping. Honeycutt testified against the advice of counsel, raising the defense of consent. That trial resulted in a mistrial. The district court then scheduled a second trial on the charges.

The district court conducted a Petrocelli¹ hearing prior to the first trial to determine whether evidence should be admitted concerning Honeycutt's prior sexual assault conviction. At that hearing, Honeycutt's former girlfriend testified that in 1997, Honeycutt had sexually assaulted her. She stated that he covered her nose and mouth and assaulted her vaginally and anally. She stated that he was high on speed at the time, and that he hit her on the head when she screamed. Honeycutt entered an Alford² plea to that charge, contending that the sexual intercourse was consensual. The district court ruled that the former girlfriend's testimony was admissible.

Between the first and second trials, the State learned that the victim had received letters from Honeycutt threatening her and telling her not to testify, and that Honeycutt wrote a letter to a friend stating that he wanted to scare the victim into not testifying.

Prior to the second trial, David Paule, an inmate incarcerated with Honeycutt, informed Detective Larry Hanna that Honeycutt had approached him and offered him $3,000.00 to hire someone to murder the victim in the sexual assault case. Paule gave Hanna a piece of paper that Honeycutt had given him that contained the victim's name and address. Hanna told Paule that in exchange for eliciting information from Honeycutt regarding the solicitation, he would try to get Paule's charge of being an ex-felon in possession of a firearm "taken away."

Based on this information, the police sent Paule back to speak with Honeycutt twice with a tape recorder, but the tapes malfunctioned each time and failed to record the conversations. Both times Paule stated that Honeycutt talked more evasively about wanting the victim killed and never specifically stated it again. The third time, when a recording was successfully made, Honeycutt made no admissions to Paule's repeated questions about his wanting to solicit the victim's murder. Paule also arranged for Honeycutt to speak to an undercover officer, Mark Preusch, about killing the victim. At that meeting, Honeycutt stated nothing, but Preusch testified that Honeycutt held up a piece of paper that said he wanted the victim to disappear.

Upon learning of these incidents, the State obtained an indictment charging Honeycutt with solicitation to commit murder and filed a motion to join that charge with the sexual assault and kidnapping charges at the second trial. Honeycutt filed a motion to sever the counts, arguing that the various charges involved inconsistent defenses. Furthermore, he argued, joinder for trial violated the Fifth Amendment³ by forcing him to testify to the solicitation charge because he had already testified to the sexual assault charges. Finally, Honeycutt contended that the solicitation to commit murder charge was too prejudicial to be joined with the original charges. The district court denied the motion, concluding that the counts were sufficiently part of the same course of conduct and did not unfairly prejudice Honeycutt, and thus could be properly joined.

Honeycutt filed a motion to suppress his statements made to Paule and Preusch because they were elicited without proper Miranda⁴ warnings. Honeycutt also filed motions to exclude the Luxor security tape and renewed his motion to exclude testimony regarding his prior conviction. The district court denied all motions, stating that Miranda warnings were not required, and although the prior bad act evidence was prejudicial, its probative value outweighed the prejudicial effect.

At the second trial, substantially the same testimony was elicited as had been at the first trial regarding the sexual assault incident. Honeycutt again testified against the advice of counsel, but attempted to assert his Fifth Amendment right not to testify as to the solicitation charge. The district court denied this request, indicating that...