Johnson v. State, 36991.

• Decision Date: 18 December 2002
• Docket Number: No. 36991.,36991.
• Citation: 118 Nev. 787,59 P.3d 450
• Parties: Donte JOHNSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

59 P.3d 450

118 Nev. 787

Donte JOHNSON, Appellant, v. The STATE of Nevada, Respondent.

No. 36991.

Supreme Court of Nevada.

December 18, 2002.

Philip J. Kohn, Special Public Defender, and Dayvid J. Figler and Lee Elizabeth McMahon, Deputy Special Public Defenders, Clark County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Lynn M. Robinson, Chief Deputy District Attorney, and Clark A. Peterson, Deputy District Attorney, Clark County, for Respondent.

JoNell Thomas, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.

Before the Court En Banc.

OPINION

PER CURIAM.

Appellant Donte Johnson was convicted of the execution-style murders of four men. After the jury failed to reach a unanimous verdict in the penalty phase, a three-judge panel imposed four death sentences.

Johnson claims that the district court erred in a number of ways, including denying his motion to suppress evidence, admitting two rifles that were not used to shoot the victims, and denying his motion for an evidentiary hearing and a new trial. We conclude that no relief is warranted on any of these claims. Johnson also argues that the three-judge panel's finding of aggravating circumstances and imposition of death violated his right to a jury trial. We agree. We affirm Johnson's conviction but vacate his death sentences and remand for a new penalty hearing before a new jury.

FACTS

Sometime during the late evening of August 13 or early morning of August 14, 1998, four men were shot to death in a home located at 4825 Terra Linda in Las Vegas. No eyewitnesses to the crimes testified, but the State's witnesses testified that Johnson admitted that he, Sikia Smith, and Terrell Young were responsible. Smith and Young were tried separately, were convicted of murder and other felonies, and received multiple sentences of life without the possibility of parole. Johnson was convicted of murder and other felonies and sentenced to death.

At Johnson's trial, Tod Armstrong testified for the State to the following. Many people used his house ("the Everman home") as a place to buy, sell, and use drugs. For approximately two weeks prior to the killings, Johnson and Young spent a substantial amount of time at the Everman home. They kept clothes in the master bedroom and often slept there. Johnson and Young possessed four guns: a .38 caliber handgun, a revolver, a firearm that looked like a sawed-off shotgun, and a .22 caliber rifle. The guns were usually kept in a duffel bag. Several days before the killings, Matt Mowen went to the Everman house to buy rock cocaine, at which time Johnson, Young, Armstrong, and several others were present. Mowen told everyone that he had just returned from touring with a band and selling acid. Later, Johnson asked where Mowen lived, and Ace Hart, Armstrong's friend, eventually took Johnson to Mowen's house. A few days later, Mowen and three others were killed at Mowen's residence.

Armstrong testified that Young and Johnson left the Everman home that night and returned with the duffel bag containing the guns early the next morning, also with a "PlayStation" and a video cassette recorder (VCR). Johnson advised Armstrong as follows: that he, Young, and Smith went to Mowen's house for the purpose of robbing Mowen, but Mowen and Tracey Gorringe did not have cash or drugs. Johnson ordered them to call some friends and have them bring money. Thereafter, according to Johnson, Peter Talamantez and Jeffery Biddle arrived. Apparently, Talamantez did not take Johnson's demands seriously and would not cooperate with him. Johnson took Talamantez to a back room and shot him in the head. Realizing that there were three witnesses, Johnson went back to the front room and shot the three other victims in the back of the heads, execution style. The next day, Armstrong overheard Johnson telling Ace Hart the same story. Several days later, Armstrong reported what he knew to the police and gave them permission to search his home. Police officers recovered a rifle, duffel bag, pager, VCR, PlayStation, and pair of black jeans. Armstrong identified the items as ones belonging to Johnson.

LaShawnya Wright, Smith's girlfriend, also testified to Johnson's admissions that he, Young, and Smith were responsible for the shootings. According to Wright, Johnson and Young left her home on the night of the murders carrying a duffel bag that contained a rifle, a handgun, duct tape, and gloves. She testified that the three men returned the next afternoon with a VCR and a Nintendo. She also testified that Smith had a .38 caliber automatic handgun, but later sold it. That same day, she, Smith, Johnson, and some others passed by a newsstand, and Johnson said, "`We made the front page."' The front-page article described the quadruple murder.

Charla Severs, Johnson's girlfriend at the time of the murders, corroborated Wright's and Armstrong's testimony. Severs remembered the day that Mowen appeared at the Everman house to buy drugs. After he left, Armstrong told Johnson and Young that Mowen had approximately $10,000 and drugs and that they should rob him. Several days later, on the night of the murders, Johnson, Smith, and Young took the duffel bag that contained the guns and did not return for several hours. When he returned, Johnson woke Severs up with a kiss and told her that he had killed someone that night. Johnson said that he went out to get some money from some people and that one of them was "talking mess." Johnson and that person started arguing, and eventually Johnson kicked him and shot him in the back of his head. The next day, Johnson told her to watch the news. The local news reported that there had been a quadruple murder and showed a picture of Mowen. Severs recognized Mowen as a person who had been to the house recently. Johnson told her that Mowen and another man did not have any money and called two friends to bring over money. He told her that he killed all of them.

Sergeant Robert Honea testified that, three days after the killings, he pulled over a white Ford for speeding. As Sergeant Honea was speaking to the driver at the patrol vehicle, he noticed the passenger had stepped out of the Ford and was holding a small handgun. Sergeant Honea drew his weapon, and the driver and passenger fled. When he searched the Ford, Sergeant Honea found a sawed-off rifle similar to the one described by Armstrong. At trial, Sergeant Honea identified Johnson as the Ford's driver.

Dr. Robert Bucklin, a forensic pathologist, testified that the hands and feet of each victim were bound with duct tape and each victim died from a single gunshot wound to the back of the head.

Thomas Wahl, a Las Vegas Metropolitan Police Department criminalist and DNA analyst, examined the black jeans that were found at the Everman home. Wahl discovered eight human bloodstains on the right pant leg of the jeans. DNA testing revealed that the blood belonged to Tracey Gorringe, one of the victims. Wahl found another stain in the zipper area of the jeans. After testing, Wahl determined that the stain was a mix of female nucleoid epithelial cells and semen. He concluded that Johnson was the source of the semen.

Although Johnson presented no witnesses, defense counsel aggressively cross-examined each of the State's witnesses. For example, on cross-examination Armstrong admitted that around the time of the killings he had been using rock cocaine extensively. He also admitted that he asked Johnson to steal some rims from a car. While Armstrong denied any involvement in the crimes, defense counsel attempted to show that Armstrong arranged the robberies because he wanted more drugs. With respect to Wright, counsel demonstrated that a district attorney contacted her while she was in custody and called her probation officer on her behalf. Severs admitted that she had given five versions of the killings and lied at the grand jury hearing and that that she had used approximately five different aliases when she had been arrested in the past.

The jury found Johnson guilty on all counts, but it could not reach a unanimous decision on the proper sentence for the murders. Thus, a second penalty hearing was conducted before a three-judge panel. For each of the murders, the panel found two aggravating circumstances: Johnson committed the murders while engaged in robbery, burglary, or first-degree kidnapping, and he killed or attempted to kill the person murdered or knew or had reason to know that life would be taken or lethal force used; and Johnson had been convicted of more than one count of first-degree murder in the immediate proceeding. The panel also found two mitigating circumstances: Johnson's youth at the time of the murders and his "horrible childhood." The panel determined that the aggravating circumstances outweighed the mitigating circumstances and imposed a sentence of death for each of the murders.

DISCUSSION

The district court did not err in denying appellant's motion to suppress

When police officers asked Armstrong if they could search his home, he consented and gave the officers the only key. Johnson and several others were present. One officer asked Johnson if he lived in the home, and he replied that he did not. Police seized several items that they found in the master bedroom including a pair of bloodstained jeans, a rifle, and a pair of shoes. Johnson filed a pretrial motion to suppress the items found in the bedroom, arguing that they were obtained as a result of an illegal search. Despite his earlier declaration, Johnson claimed that he resided in the master bedroom of the home and that the police should have obtained a warrant to search it. The State argued that the search was proper under three alternate theories: Johnson did not have a reasonable expectation of privacy in the Everman home because he did not reside there; Armstrong possessed common authority over the entire home and could...