Koza v. State, 14243

• Citation: 100 Nev. 245,681 P.2d 44
• Decision Date: 25 April 1984
• Docket Number: No. 14243,14243
• Parties: Joseph Edward KOZA, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 44

681 P.2d 44

100 Nev. 245

Joseph Edward KOZA, Appellant, v. The STATE of Nevada, Respondent.

No. 14243.

Supreme Court of Nevada.

April 25, 1984.

Goodman, Terry, Stein & Quintana, Las Vegas, for appellant.

D. Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

A jury convicted Joseph Edward Koza of first degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon and returned a verdict of life imprisonment without the possibility of parole on the murder count. The district court sentenced Koza to fifteen years imprisonment on the robbery count. The district court also imposed additional enhancement penalties of fifteen years and life imprisonment without the possibility of parole for the use of a deadly weapon in the commission of the crimes. The sentences are to run consecutively. Our review of the record convinces us that Koza was fairly tried, convicted and sentenced. We therefore affirm.

Shortly after midnight on October 25, 1980, a man driving home from work spotted a taxicab which had been driven off the pavement and into a large bush. Behind the cab, which was in a remote area on the outskirts of Las Vegas near Sunset Road, the man found a body on the ground.

An autopsy revealed that the victim, the cab's driver, died of two .25 caliber gunshot wounds to the back of the head. The cab company supervisor also discovered a .25 caliber shell casing under the back seat of the cab. Although the cabdriver's trip sheet reported $76.85 in fares for the evening, no money was found on his body or in the cab's safe. The cab's meter was still running when police arrived. Several latent fingerprints were recovered from the cab.

Immediately prior to his death, the cabdriver was on duty and following his normal routine of "working the Las Vegas Strip," instead of taking dispatch calls. He picked up four passengers at the Riviera Hotel at 9:52 p.m. and left them at the Tropicana Hotel. His trip sheet's final entry noted that at 10:02 p.m. he picked up two persons. Contrary to routine practice, the cabdriver did not indicate where the persons were picked up or where they wanted to go. Subsequent to the police investigation, the cab company supervisor, using information from the abandoned cab's running meter and from three alternative routes (each driven on a Friday at 10:00 p.m.) from the Tropicana Hotel to where the cab was found, calculated that the cabdriver had arrived at the scene at approximately 10:15 p.m. the night he was killed.

The evening of the killing, David Berry was driving his truck on Sunset Road with his friend Albert Smith and their girlfriends. The hour was sometime between 10:15 p.m. and 10:30 p.m. Berry passed a man and a woman walking along at a point approximately one-half mile from where the body was found. Seeing the man put his thumb out, Berry backed up to give them a ride. Smith rolled down the passenger window, turned his head to look at the man and asked him if they wanted a ride. The man, who stood about five feet from Smith, replied affirmatively and indicated that they were going to "the Tropicana." There were no streetlights in that area, but Smith saw the man's face from the illumination provided by Berry's truck lights and by the lights of an approaching car. When Berry later let the hitchhikers out, he "got a good look" at the man as he helped the woman out of the truck. There were streetlights in the area where the two disembarked.

On November 12, 1980, Berry and Smith and their girlfriends met with police detectives. Berry was separated from the others and interviewed. After he briefly described the hitchhiker, police conducted a photo lineup containing six photographs. Berry "positively" identified the picture of Koza as the hitchhiker. The procedure was repeated for Smith, who also identified Koza's photograph. Berry and Smith later identified Koza at preliminary hearings and at trial. Neither Berry nor Smith could identify the woman hitchhiker, but their general descriptions matched that of Koza's wife.

Prior to being charged with the instant crimes, Koza and his wife had been arrested on unrelated charges at a motel where they were registered under a false name. Their registration card listed no motor vehicle and the motel clerk testified that he had never seen Koza or his wife in a private car, only in taxicabs. Koza and his wife had stayed at the motel for over two months and had paid their rent daily in cash. The motel is approximately one block east of the Tropicana Hotel.

The arrests were precipitated by the motel desk clerk's inadvertent overhearing of a portion of a telephone conversation between a man in room 359 and an outside female caller. The caller inquired, "Do you have your gun?" The desk clerk, who was also the motel's manager, listened one or two minutes thereafter for security reasons and heard the following:

Female: Do you have your gun?

Male: Yes, I have mine; do you have yours?

Female: Yes, I have mine in my purse. I am over here now, and here is what we will do. On the way over, I will sit in the back seat of the car; and when we get to the rear of the hotel I will get the drop on them.

Male: Be careful, there are two of them.

Female: Don't worry. If they try anything I will blow their brains out. I will have him toot the horn, and that will be your signal to come around and get into the car.

Suspecting a robbery might soon occur on the premises, the desk clerk called the motel owner and then the police.

Police officers arrived thirty to forty-five minutes later and commenced surveillance of room 359. During the next two hours, a man later identified as Koza twice left the room, went to the rear of the motel and returned. He appeared as if he was looking for someone. After a third trip to the front of the motel, he returned to the room with a woman later identified as Koza's wife. At that time the officers decided to investigate. Sergeant Schaub knocked on the door and announced they were police officers who wanted to speak with the occupants. Schaub then heard from inside the room the sound of a slide action of an automatic pistol. Schaub immediately shouted to the other officers to take cover. He then shouted to the occupants of room 359 that he knew someone in the room had a gun and that unless everyone exited, police officers would come in shooting.

Approximately one minute later the door opened slightly and Koza's wife appeared. Schaub ordered her to come out; she did not. She asked what he wanted and said nobody else was inside. Schaub raised his gun and again ordered her to come out. She then exited through the narrowly opened door. The officers searched her, found no weapons, handcuffed and arrested her. Knowing that at least one man was still in the room, Schaub shouted that he knew someone else was inside and ordered him to come out. After one or two minutes, Koza emerged. Police found a small holster clipped to his pants' waistband, but no gun. The Kozas were arrested for conspiracy to commit robbery.

Schaub and the other officer then entered the room and commenced a "protective sweep." No one was found in the main area of the room or in the bathroom. While returning to the main area, Schaub noticed one bed's mattress was not aligned with the box springs. He could see a portion of a chrome object hidden between the mattress and box springs. Bending down, he could see more of the object and "just knew" that it was a gun. Schaub lifted the mattress and confirmed that the object was a gun. It was a Raven .25 caliber automatic handgun with a live round in its chamber. Two other guns were also found. Only the Raven fit Koza's holster.

A firearms examiner conducted tests with the guns seized in Koza's room. He concluded, with "one hundred percent" certainty, that the bullets recovered during the cabdriver's autopsy and the cartridge found in the cab were fired from the Raven pistol. The next day, fingerprint experts discovered that a latent palm print recovered from the fender of the victim's cab matched the palm print of Koza's wife.

An information jointly charged Koza and his wife with murder and robbery, both counts with the use of a deadly weapon. The jury found Koza guilty of first degree murder and robbery, both with the use of a deadly weapon. Although the state sought the death penalty, the jury concluded the penalty phase of the trial by returning a verdict for life imprisonment without the possibility of parole. Koza was sentenced to two consecutive life sentences without the possibility of parole for his conviction of first degree murder with the use of a deadly weapon and two consecutive fifteen-year terms of imprisonment for his conviction of robbery with the use of a deadly weapon. Koza now appeals from each of his convictions and sentences.

Koza first contends that the record does not contain sufficient evidence for a rational trier of fact to be convinced beyond a reasonable doubt of his guilt. The relevant inquiry for this Court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981). The testimony placing Koza near the scene of the crime at the approximate time of its occurrence and the evidence proving that the gun found under Koza's mattress, which fit Koza's holster, was the murder weapon are especially damaging to Koza's position. We conclude that there is substantial evidence in the record to support the verdict of the jury and therefore will not overturn it on appeal. Id.

Koza next contends that the district court's refusal to suppress the photo lineup...