Jimenez v. State

• Decision Date: 30 May 1996
• Docket Number: No. 24580,24580
• Citation: 112 Nev. 610,918 P.2d 687
• Parties: Victor Maximillian JIMENEZ, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 687

918 P.2d 687

112 Nev. 610

Victor Maximillian JIMENEZ, Appellant, v. The STATE of Nevada, Respondent.

No. 24580.

Supreme Court of Nevada.

May 30, 1996.

[112 Nev. 611] Laura Wightman FitzSimmons, 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.

OPINION

PER CURIAM:

After a May 1987 mistrial resulting from a hung jury, appellant Victor Maximillian Jimenez's second trial in January 1988 produced convictions of first-degree murder and robbery with use of a deadly weapon, and a sentence of death. This court affirmed his convictions on appeal, but reversed his capital sentence. Jimenez v. State, 105 Nev. 337, 775 P.2d 694 (1989) (Jimenez I ). Following a second penalty hearing, Jimenez again received a death sentence, which this court affirmed. Jimenez v. State, 106 Nev. 769, 801 P.2d 1366 (1990). Except where otherwise noted, this opinion addresses only the second trial and second penalty hearing.

In December 1991, Jimenez petitioned the district court in proper person for post-conviction relief. Through counsel, he filed a supplemental petition in June 1992. The court denied the supplemental petition on May 12, 1993, and Jimenez appealed. Pursuant to SCR 250(H), this court referred the case back to the district court to consider certain evidence for purposes of determining whether that evidence would affect the court's denial of the petition. On December 5, 1994, after considering the evidence, the district court again denied relief.

For reasons discussed hereafter, we conclude that Jimenez's convictions are infirm and that he is entitled to a new trial.

FACTS

Background

Relevant to this appeal, the following evidence was presented at trial. Leandrew Domingo, an acquaintance of Jimenez, testified that he and Jimenez had been at Gabe's Bar on the evening of January 9, 1987. Jimenez and Domingo broke into a truck parked outside the bar and stole some items, including a tool box. They took the tool box to Jimenez's residence, where he obtained ten dollars for it. Among the tools that the owner of the truck reported missing were a carpet knife, two sheetrock knives, and a dagger.

The next morning the North Las Vegas Police found two bodies at Gabe's Bar, victims of multiple stab wounds. One victim was the bartender, and the other was a customer. No weapons were ever found, but an expert testified that the victims' wounds could have been inflicted by a carpet knife and a dagger. The investigation at the scene revealed bloody footprints made by tennis shoes and $330.00 missing from the bar's slot bank and jukebox.

Detective Thomas Harry of the North Las Vegas Police Department ("NLVPD") testified. On January 22, 1987, Harry received information regarding the killings, and he and Detective Bruce Scroggin picked up Jimenez and took him to the police station for questioning. Jimenez was advised of his constitutional rights, but did not invoke his right to remain silent or to have an attorney. None of Jimenez's statements was recorded. Detective Harry asked Jimenez if he or Domingo had been involved with the murders at Gabe's Bar. According to Harry, Jimenez asked what would happen to him if he was. Harry said it would depend on what had happened in the bar. Jimenez asked if he would be killed, and Harry told him he could get the death penalty or life in prison. Jimenez also asked if it would be easier on him if two people had been involved. Harry again told him it would depend.

Harry interrupted the interview and went to Jimenez's residence and obtained the stolen tool box and some of Jimenez's clothes from Jimenez's father. A luminol test indicated blood on a pair of his pants and his jacket. The blood was later identified as human, but could not be typed. Harry testified that when he informed Jimenez that blood had been found, Jimenez said, "Okay, you have me." According to Harry, Jimenez asked the detectives if they thought more than one person had done it, and Harry said they did not know. Jimenez asked what if he told them he did it himself. Harry said to tell them, but Jimenez said he could not, that his family would be in danger. The interview ended.

Detective Scroggin testified. On January 27, 1987, Jimenez's parents spoke with their son at the police station. Scroggin escorted Jimenez back to his cell immediately after his visit with his parents. Jimenez was subdued and appeared sad. When the two were alone in an elevator, Jimenez hung his head and cried. Scroggin testified that when he asked what was wrong, Jimenez said it just felt better to tell someone.

Billy Ray Thomas testified. Thomas had been incarcerated in the North Las Vegas jail and shared a cell with Jimenez and several other inmates on January 28, 1987. That evening, Jimenez was talking on a telephone which had been brought to the cell. Thomas wanted to use the phone and sat down near Jimenez to await his turn. Thomas testified that Jimenez turned his body away from Thomas, covered his mouth with his hand, and said, "They got me, dad. I stabbed the guy."

In January 1988, Jimenez was convicted of murder and robbery with use of a deadly weapon and sentenced to death. Upon remand from this court, a second penalty hearing was held in November 1989, and he was again sentenced to death.

Jimenez filed a supplemental petition for post-conviction relief in June 1992. The district court allowed an evidentiary hearing only in regard to Jimenez's claim that the State failed to inform him of exculpatory evidence prior to trial. The court denied the petition in May 1993, and Jimenez appealed. Pursuant to SCR 250(H), this court referred the case back to the district court for a second hearing to allow the court to consider evidence relating to the credibility of a witness

against Jimenez and to determine whether this evidence would affect its denial of the petition. On December 5, 1994, the district court found that the evidence was unrelated to Jimenez's case and again denied relief.

Exculpatory Evidence

At the trial, defense counsel asked Detective Harry on cross-examination if he had any other suspects before he arrested Jimenez on January 22, 1987. Harry said no. However, Harry and Detective Scroggin admitted to receiving information on two possible suspects. The detectives did not pursue this lead very far and dropped it completely when they got a tip regarding Jimenez. Sharon Bromley had provided the information regarding the two suspects. When defense counsel called her as a witness, the State successfully interposed hearsay objections to counsel's attempts to question her regarding the two possible suspects.

The following evidence was presented to the district court at the first post-conviction evidentiary hearing in April 1993. Mel Harmon, the prosecutor at the trial, testified that his file had been open to defense counsel and that all police reports should have been in his file prior to trial. When shown police reports obtained by Jimenez's post-conviction counsel several years after the trial, Harmon was not familiar with them but stated that even if he had had this information, he would not have felt a duty to disclose it to the defense. The information in question included indications that a day or two after the murders, a man by the name of John Johnson overheard two men talking about killing two people at a bar and saw one of the men display a knife. Johnson later made a photo identification of one of the men. Johnson shared this information with Sharon Bromley, who thereafter informed Detectives Harry and Scroggin. The information in the police reports also included the fact that a knife was found in a toilet at Gabe's Bar on February 6, 1987, less than a month after the murders, and that a man who had reportedly threatened the bartender at Gabe's Bar a few days before the murders then allegedly returned and killed the two victims.

John Johnson also testified at the hearing. He testified that a day or two after the murders, Sharon Bromley told him about the murders and asked him to let her know if he heard anything about them. Bromley worked for the Las Vegas Metropolitan Police Department (LVMPD) in gun detail and knew one of the victims. Johnson was an apartment manager in public housing at the time. The same night after talking to Bromley, Johnson overheard two Hispanic men at the Jack Daniels Bar speaking in mixed English and Spanish. (The Jack Daniels Bar is about eight blocks from Gabe's Bar.) Johnson understood very little Spanish, but heard them speak of the killing of a bartender. One of them said "something to the effect, I wish I would have made sure the other one was down or dead," and produced a long-bladed knife with what appeared to be a bone-inlaid handle. Johnson revealed this information to Bromley, who brought him photos from which he identified one of the men he had overheard. No one in law enforcement or from Jimenez's defense team ever contacted Johnson. He would have willingly testified at Jimenez's trial if he had been asked. Johnson did not know the context of the conversation he overheard. When Jimenez's post-conviction counsel offered an exhibit to support Johnson's credibility, the State's attorney said, "I'm not questioning the sincerity ... and good faith of this witness."

Sharon Bromley testified that after she learned of the murders, she contacted Johnson because of his street knowledge. After he told her what he had heard and seen, she contacted Detective Harry. Harry provided her with photographs of two Hispanic men arrested for robbery three days after the murders. She later showed the photos to Johnson, who identified one as one of the two men he had overheard. (These men came to be referred to as "the two Cubans.") Bromley called Harry to give him the information provided by Johnson. Harry told her he had things under control,...