Kaczmarek v. State

• Decision Date: 07 June 2004
• Docket Number: No. 41556.,41556.
• Citation: 120 Nev. 314,91 P.3d 16
• Parties: Steven KACZMAREK, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

91 P.3d 16

120 Nev. 314

Steven KACZMAREK, Appellant, v. The STATE of Nevada, Respondent.

No. 41556.

Supreme Court of Nevada.

June 7, 2004.

Paul E. Wommer, Las Vegas, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.¹

OPINION

PER CURIAM.

Appellant Steven Kaczmarek was charged, tried before a jury, and found guilty of burglary, robbery, first-degree kidnapping, and first-degree murder, all committed with the assistance of a child. At the conclusion of the penalty phase, the jury returned a verdict of death for the murder.

Kaczmarek appeals, arguing first that police detectives violated his rights under the Fifth and Sixth Amendments of the United States Constitution by interviewing him regarding the instant crimes while he was incarcerated for unrelated charges and, second, that the district court erred during jury selection by denying his objections to the State's peremptory challenges of four non-Caucasian prospective jurors. We conclude that Kaczmarek is not entitled to relief on these claims. Related to his death sentence, Kaczmarek argues that the district court erred during the penalty phase by excluding the testimony of the victim's daughter regarding her opposition to the death penalty in this case. We disagree. Accordingly, we affirm Kaczmarek's judgment of conviction and sentence of death.

FACTS

The State's evidence during the guilt phase of trial showed that the victim, Pedro Villareal, lived alone in an apartment unit in Las Vegas. He was last seen at his apartment complex on the morning of September 25, 2002. On September 26 and 27, the complex suffered from a worsening shortage of hot water. On September 27, employees of the complex began checking the apartment units for leaks. When they entered Villareal's unit, they discovered his dead body in the bathtub and summoned police.

Villareal's body was found tilted facedown into the bathtub, with the hands and wrists bound from behind by an extension cord, the legs bound with a cut electrical cord, and a pillowcase over the head. It was clad only with pants that had one pocket turned inside out. Water was up to the sides of the body and was still pouring from the showerhead over the body and out of the tub. The apartment unit was in general disarray. No money or wallet could be found, but police recovered various items of evidentiary value, including cigarette butts. Villareal's daughter reported that her father's VCR and gold bracelet were missing from the apartment.

A pathologist autopsied Villareal's body on September 28, 2002, and found that the body bore a number of injuries but no defensive wounds. The pillowcase that covered the head was still wet. A blood-soaked, ankle-length, cotton athletic sock was recovered from the mouth. Villareal had likely been dead for at least thirty-six hours prior to autopsy, and the cause of death was asphyxia from a homicide that involved suffocation, strangulation, and drowning.

Police had no leads in the murder until October 21, 2002. On that date, an inmate at the Clark County Detention Center (CCDC), where thirty-two-year-old Kaczmarek was also incarcerated for charges unrelated to the crimes against Villareal, contacted Las Vegas Metropolitan Police Department (LVMPD) detectives. The inmate relayed to detectives Kaczmarek's admissions to a killing that matched the known facts surrounding Villareal's death. Based on this new lead, detectives ran Kaczmarek's name through LVMPD's pawn detail and determined that he had pawned a VCR and gold bracelet at a local pawnshop. On October 23, 2002, police recovered from the pawnshop Villareal's VCR and bracelet and a receipt bearing the signature "Steven Kaczmarek" and indicating that the items were pawned during the late evening of September 25, 2002. An employee of the pawnshop, who testified at trial, identified Kaczmarek as having pawned the items. A document examiner compared Kaczmarek's known handwriting and the signature on the pawnshop ticket and found it highly probable that Kaczmarek had signed the ticket.

Meanwhile, a second inmate with whom Kaczmarek was incarcerated at CCDC also contacted LVMPD and told detectives that Kaczmarek admitted to killing a man. The description of this killing, as relayed by the second inmate, also proved consistent with the known facts surrounding the Villareal homicide.

On October 29, 2002, detectives approached Kaczmarek while he remained in custody on the unrelated charges, and he agreed to give a recorded statement. Kaczmarek told detectives that he and his girlfriend, Alisha, a fifteen-year-old foster child from Ohio, had been living on the streets with Alisha begging for money to support them. The two of them, along with a man named "Tommy," met Villareal, who invited them to his home to watch videotapes, drink beer, and stay overnight. Kaczmarek thought that he and his accomplices would "beat up" Villareal and take his money. At Villareal's apartment, Kaczmarek saw that Villareal had thirty dollars and then attacked Villareal by choking him and causing him to lose consciousness. Kaczmarek, Alisha, and Tommy took turns choking Villareal. Kaczmarek then stood on Villareal's back and used an electrical cord to bind his feet. Kaczmarek told Alisha to cut a cord from a fan, and they used this cord to bind Villareal's hands. Kaczmarek and Tommy then put Villareal facedown in the bathtub. Kaczmarek, concerned that he had left DNA evidence by dripping sweat, cut off and removed Villareal's shirt. Next, Kaczmarek put a sock in Villareal's mouth and a pillowcase over his head, turned the showerhead on, and shut the bathroom door. Kaczmarek admitted to taking from the apartment Villareal's VCR, gold bracelet, wallet, twenty dollars in cash, a ten-dollar roll of quarters, and miscellaneous items of personal property. At the pawnshop, Kaczmarek received forty dollars for the bracelet and VCR.

Subsequent scientific analysis of a cigarette butt recovered from Villareal's apartment was consistent with Kaczmarek having left his DNA on the butt.

Kaczmarek testified as the only defense witness during the guilt phase. He again admitted to planning a robbery, conspiring with Alisha to rob Villareal before entering his apartment, choking Villareal and causing him to pass out, tying him up with electrical cords, putting the sock in his mouth and the pillowcase over his head, leaving him facedown in the tub with the showerhead on, and taking and pawning his personal property. He departed from his earlier statements, however, by claiming that "Tommy" was a fictional character created by detectives and by placing more of the blame on Alisha for initiating and directing the physical attack on Villareal. Kaczmarek testified that he "pretty much just did whatever [Alisha] wanted to do" but he never intended to kill Villareal.

On cross-examination, Kaczmarek admitted that he had Illinois convictions for 1988 crimes, including two felony counts of aggravated criminal sexual assault, one felony count of home invasion, and one felony count of armed robbery. He also admitted to an Ohio conviction for a 1996 felony aggravated burglary.

During the penalty phase, the State presented victim impact evidence from Villareal's fifteen-year-old daughter, Amanda, who testified regarding Villareal's personal characteristics and the impact the loss of his life had on her.

The State also presented evidence on Kaczmarek's prior convictions and parole status. First, the victim of the crimes leading to Kaczmarek's Illinois convictions testified that Kaczmarek entered her home uninvited, threatened to kill her while armed with a knife, sexually assaulted her orally and vaginally while still armed with the knife, and led her about her home to get her personal belongings. Ultimately, Kaczmarek stuck a "bunch" of toilet paper inside her mouth so she could not talk, tied a pillowcase around her mouth and head as a gag, and took her to the basement where he used an electrical extension cord to bind her hands, feet, and head and to tie her to a pipe. After Kaczmarek ripped out the victim's telephone line and left in her car, she freed herself and summoned police assistance. A police officer testified that Kaczmarek was arrested after a foot chase and admitted to entering the victim's house with intent to rob her, robbing her, and sexually assaulting her. Kaczmarek later pleaded guilty to two counts of aggravated sexual assault, one count of home invasion, and one count of armed robbery. In February 1989, he was sentenced to concurrent prison terms of fifteen years on each count. Certified copies of related court documents and the judgment of conviction were admitted into evidence.

Second, the victim in the case leading to Kaczmarek's Ohio conviction testified regarding the burglary of his home, which involved property destruction as well as the taking of personal property, including a safe that contained a large amount of money. An Ohio detective testified that Kaczmarek was out on parole for his Illinois convictions when arrested for the Ohio burglary. Kaczmarek ultimately pleaded guilty to aggravated burglary. In December 1996, he was sentenced to five to fifteen years in the Ohio penitentiary. A certified copy of the judgment of conviction and Kaczmarek's written confession were admitted into evidence. Third, an Ohio parole officer testified that Kaczmarek was released on parole from his Ohio sentence in September 2000, but was sent back to Illinois for parole revocation proceedings. He served approximately fifteen months in Illinois and was released in December 2001. He remained on Ohio parole, but did not report back to Ohio as required until July 2002, after parole authorities learned that he had been taken into custody in May 2002 for committing a theft at a Kmart. Kaczmarek was allowed to...