Jimenez v. State, 18957

Citation105 Nev. 337,775 P.2d 694
Decision Date07 June 1989
Docket NumberNo. 18957,18957
PartiesVictor Maximillian JIMENEZ, Appellant, v. The STATE of Nevada, Respondent.
CourtSupreme Court of Nevada
OPINION

PER CURIAM:

A jury convicted Victor Maximillian Jimenez of burglary, robbery with use of a deadly weapon, and two counts of first degree murder. After a penalty hearing, the jury found that aggravating circumstances outweighed mitigating circumstances sufficiently to impose the death penalty. On appeal, Jimenez challenges the admissibility of some of the evidence, the sufficiency of the evidence, and the imposition of the death penalty.

Facts

Jimenez and an acquaintance, Leandrew Domingo, went to Gabe's Bar on the evening of January 9, 1987. They drank until the bartender asked them to leave because Domingo kept falling asleep. Out of money, they went out the back door of the bar to where Richard Warner had parked his truck. Jimenez and Domingo broke into the cab of the truck by pushing in the wing window and took a transistor radio. They also opened a large tool box in the back of the truck and took from it a smaller tool box. Among the tools that Warner reported missing were carpet knives, sheetrock knives, a dagger, a sheetrock ax, and a drywall pouch. Jimenez took the tool box to his residence a short distance away and returned to Domingo with ten dollars.

The next morning the North Las Vegas Police were dispatched to Gabe's Bar. They found two bodies on the floor, victims of multiple stab wounds. One of the victims John Mynheir, had been the bartender on duty, while the other victim, Antonio Velasquez, was a customer at the bar. Although no weapons were ever found, an expert testified at trial that the victims' wounds were consistent with wounds that could be inflicted by a carpet knife and a dagger. The investigation at the scene revealed bloody footprints made by tennis shoes and approximately $350.00 missing from the bar's slot bank and jukebox money.

On January 22, 1987, Detective Harry received information regarding the killings at Gabe's Bar. As a result of the information, he and Detective Scroggin went to Jimenez' residence. They advised Jimenez that they wanted to talk to him about a truck burglary, and Jimenez accompanied them to the police station. At the station, Jimenez was advised of his constitutional rights, but he invoked neither his right to remain silent nor his right to have an attorney. He then admitted to burglarizing the truck. He also stated that he had been in a fight outside the Guadalajara Bar (next to Gabe's Bar) the night of the killings. He claimed that someone had stabbed him in the toe and that he had thrown the tennis shoes away that he had been wearing.

The detectives then told Jimenez that they were investigating the murders at Gabe's Bar. Detective Harry asked Jimenez whether he or Domingo had been involved. Jimenez did not immediately respond, so Detective Harry repeated the question. Jimenez responded, "Why, what happen to me if I did?" The detective said that it would depend on what happened. Jimenez asked if he would be executed, and the detective said that he could get the death penalty or life imprisonment.

Detective Harry asked him if he wanted to talk about it, and Jimenez was silent for a few seconds but then asked whether it would be easier on him if there had been two people involved. Again, the detective responded that it would depend on what happened. The detective temporarily ended the interview and went to Jimenez' residence where Jimenez' father gave the detective the tool box, which was later identified as Warner's, and some of Jimenez' clothes. Blood was identified on Jimenez' jacket and on a pair of pants by using a luminol test. The blood was later identified as human blood, but it could not be typed.

The detective readvised Jimenez of his rights and informed him that blood had been found on his clothing. Jimenez then responded, "Okay, you got me." He asked the detectives if they thought more than one person had done it, and Detective Harry said that they did not know. Jimenez asked, "What if I told you I did it myself?" And the detective asked him to tell them. Jimenez then said, "No, I can't. My family will be in danger." The interview then concluded.

On January 27, 1987, Jimenez' parents were contacted for the purpose of obtaining a statement. They agreed and went to the police station. They were interviewed for a short time and then they asked to see their son. They talked to their son for about thirty minutes, and the police then took formal statements from both parents. Mr. and Mrs. Jimenez both later testified that the police had told them they would be blamed for the murders if they did not answer the police's questions. However, the detectives denied that they had made any threats.

After Jimenez had spoken with his parents, Detective Scroggin went into the interview room with Jimenez. Jimenez was very quiet and subdued and appeared sad. The detective escorted Jimenez to the elevator to take him back to his cell. Jimenez' head was hung, and he began to cry. Detective Scroggin asked him what was wrong, and Jimenez replied that it just felt better to tell someone.

While Jimenez and Domingo were in custody in the North Las Vegas Jail, Jimenez told Domingo that he had bought the tool box for himself. Later, on their way to court, Jimenez said to Domingo that they were going to be locked up for a long time.

Billy Ray Thomas was incarcerated in the North Las Vegas Jail at the same time as Jimenez. Thomas was present in the cell block with Jimenez and several other inmates on January 28 when another inmate posed several questions to Jimenez. There was some discussion regarding a jacket, and one of the inmates asked Jimenez if it was his jacket. Jimenez said that it was. Then the inmate asked Jimenez, if he did not kill the guy, how did blood get on the jacket. Jimenez did not answer. The inmate then asked why he did not get rid of it, and Jimenez said that he did not think about it at the time.

That same evening, a telephone was brought to the cell for inmate use. Jimenez used the phone for quite a while. Thomas wanted to use the phone, so he tapped Jimenez on the shoulder. Jimenez brushed him off and told him to wait. Thomas sat down next to Jimenez. Jimenez turned his body away from Thomas, dropped his head a little and covered his mouth. Thomas then heard Jimenez say, "They got me dad. I stabbed the guy."

Admissibility of Evidence

Jimenez first argues that the trial court erred in allowing his mother to testify. Mrs. Jimenez, on two different occasions, repeatedly refused to testify concerning the events of which she had knowledge. The prosecutor called her to testify, and she testified concerning some inconsequential matters, then refused to go on. On the next day, defense counsel cross-examined her, and the prosecution again tried to get her to answer questions which she refused to do, except for some questions on further inconsequential matters. In the end, she gave very little testimony, and the court remanded her to custody for refusing to answer the prosecution's questions.

Jimenez claims he was prejudiced by Mrs. Jimenez' refusal to testify because of what the jury might have inferred from what Mrs. Jimenez did not say. We reject this argument as overly speculative. We also reject Jimenez' arguments that we should apply a parent/child privilege or that the court's failure to allow defense counsel to recross-examine Mrs. Jimenez violated Jimenez' right to confront and cross-examine.

Second, Jimenez claims that his admissions to the detectives and within the hearing of his cell mates should not have been admitted. He states that the testimony of Billy Ray Thomas and Leandrew Domingo concerning statements he made while in jail should have been excluded because he had already invoked his right to remain silent. This basis for excluding the testimony of Thomas and Domingo was not raised at trial and may not be raised now on appeal. Browning v. State, 104 Nev. 269, 757 P.2d 351 (1988); Geer v. State, 92 Nev. 221, 224, 548 P.2d 946, 947 (1976). Furthermore, even if we could consider it, Jimenez cannot show that Thomas and Domingo were acting as agents of the police in violation of the fifth amendment when they heard Jimenez' admissions. See Thompson v. State, 105 Nev. 151, 771 P.2d 592 (1989); U.S. v. Malik, 680 F.2d 1162, 1165 (7th Cir.1982).

Jimenez also made incriminating statements to Detectives Harry and Scroggin. He maintains that the credibility of the detectives is suspect because the statements were neither tape recorded nor transcribed. 1 The Alaska Supreme Court has imposed on the police a duty to record the statements of suspects whenever feasible. The penalty for not making the recording is suppression of the statements for violation of the due process clause of the Alaska Constitution. Stephan v. State, 711 P.2d 1156 (Alaska 1985). The...

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  • Other Grounds for Suppressing Confessions
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    • 4 août 2016
    ...1988) • Missouri State v. Blair , 298 S.W.3d 38 (Mo. App. 2009) • Montana State v. Grey , 907 P.2d 951 (1995) • Nevada Jimenez v. State , 775 P.2d 694 (Nev. 1989) • New Hampshire People v. Barnett ,789 A.2d 629 (N.H. 2001) • New Jersey State v. Cook , 847 A.2d 530 (N.J. 2004) • New York Peo......
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