Lisle v. State

Decision Date24 April 1997
Docket NumberNo. 28172,28172
Citation113 Nev. 540,937 P.2d 473
PartiesKevin James LISLE, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court
OPINION

PER CURIAM:

FACTS

On the evening of October 22, 1994, Joey Gonzales and Kip Logan bought two beers and then headed towards Logan's girlfriend's house. As Logan drove on U.S. Interstate Highway 95, a white van approached his Mustang. Gonzales observed the van's front passenger stick his head and arm out of the window and scream at them. Gonzales told Logan, "Let's just go," and took a swig of his beer. At that moment, Gonzales heard the driver-side window break. He turned and saw Logan slumped over the steering wheel. Gonzales grabbed the steering wheel and stopped the Mustang.

Metro police officer Steve Borden and his partner, Mike Carreia, arrived as Gonzales was pulling Logan out of the Mustang. Officer Borden saw that Logan had been shot in the head. He checked Logan for vital signs, and saw none.

Gonzales told Borden that he saw three males in an Aerostar-type van, Hispanic or white, with shaved heads. Gonzales said that the shooter had a goatee, and that the back-seat passenger appeared more white.

On the next day, a medical examiner determined that Logan had died of a gunshot wound to his head. Fragments of a bullet consistent with a .357 Magnum were removed from Logan's head.

On the same day, John Melcher was arrested. He denied being in the van on the previous night.

On October 27, 1994, Anthony Evans was arrested. That evening, he gave a statement that Melcher was in the front passenger seat of the van, and that the shot came from the front passenger side. He said that after the shooting, "Shotgun" (Melcher) disposed of the gun.

On October 31, 1994, the defendant, Kevin James Lisle, was arrested.

On April 6, 1995, Evans agreed to testify against Lisle and Melcher in exchange for the State reducing his charges to accessory after the fact of murder. Evans agreed to testify both in the Logan case and in another homicide case involving Lisle ("the Lusch case"). On May 23, 1995, Evans was released from custody.

Sometime after Evans agreed to cooperate with the State, Melcher sought the same deal. On July 24, 1995, he was interviewed by detectives. His charges were later reduced to accessory after the fact of murder. His case was transferred to juvenile court and he received probation.

On October 9, 1995, an amended indictment was filed charging Lisle with one count of murder with use of a deadly weapon and one count of attempted murder with use of a deadly weapon. A jury trial commenced on October 16, 1995.

Guilt phase

At trial, Evans testified that on the night of October 22, 1994, he, Melcher, and Lisle were at Larry Prince's apartment. Evans, Melcher, and Lisle decided to borrow a white van from Prince, and Melcher picked up the keys to the van. As Lisle got into the front passenger seat of the van he said, "I hope nobody messes with us tonight, because I'm drunk and I do crazy things when I'm drunk." Lisle was holding a .357 handgun.

Evans testified that Melcher drove the van, Lisle was in the front passenger seat, and he was in the rear passenger seat. Lisle was hanging out the window and throwing gang signs at cars. Evans heard Lisle tell Melcher, "speed up," and the van pulled up to a Mustang. Evans observed Lisle pull out his gun and point it out of the window, and then Evans heard a gun shot and saw sparks fly. Evans then saw the Mustang pull over to the side of the road, saw that the Mustang's driver-side window was shattered, and saw the driver laying against the steering wheel. Evans stated that he did not know whether there was anyone else in the Mustang besides the driver. Evans testified that after the gunshot, Lisle directed Melcher to get off the freeway and to stop the van. Lisle then disposed of the gun.

On redirect, Evans testified that he was a member of the North Hollywood Boyz, and Lisle was a member of the Westside Lompoc, both California gangs. He stated that he had known Lisle for two years and Melcher for two months. He stated that Melcher was not a gang member. Evans said that gang members have a rule "not to tell on none of your friends." He testified that he was afraid of Lisle.

Prince testified that while living in Las Vegas, he became familiar with Evans, Melcher and Lisle. He stated that he had rented a van for their use, and that Lisle drove it more than anyone else. Prince admitted that he testified in this case pursuant to a plea bargain on a drug possession charge.

The grand jury testimony of Tom Foster was read. On the night of the shooting, Foster observed three males exit from a white van. Foster testified that he was positive that Lisle was the driver of the van. Foster identified Melcher as a passenger.

Detective Diane Falvey testified that on the day of Evans' arrest he had indicated that Melcher was the shooter, but she suspected he was not giving the right information. Detective Donald Tremel testified that when Melcher was arrested, Melcher told him that Lisle was driving the van.

Melcher testified that he had no gang affiliation. He stated that he did things for Lisle, such as "drive the car around," in exchange for clothes and money. Melcher stated that on the evening of October 22, 1994, he was driving the white van on the freeway.

Melcher testified that while he was in custody, he saw Lisle at the detention center. Lisle told him "that he looked Logan in the eye before he killed him and he enjoys it and that after I do my first one I will see what he is talking about." Lisle also told him that the police believed Melcher was the shooter, and told him to take the blame for the shooting. Melcher stated that he was aware of the gang code of conduct, "if you snitch, you die," and that he had been afraid of retaliation.

Melcher also testified that he could not grow a beard.

Sophia Martinez testified that at approximately 3:00 a.m. on October 23, 1994, Lisle told her that he had done something crazy, and to watch the news. At that time, Lisle had a mustache but no hair on his chin. She had never seen Melcher with a mustache or a goatee. She saw Lisle with a shaved face later that day.

Christopher Barnes, testifying for the defense, stated that after hearing about the shooting he contacted the police, because he had been assaulted by individuals of a similar description. He identified a photograph of Melcher as one of his assailants. However, he acknowledged that although he had believed his assailant had lighter skin than himself, Melcher's skin was darker than his. He was shown a photo of Lisle but did not recognize him as having been involved in the incident. He described his assailant as having "a little bit of rough around the chin and the moustache," what he would call a goatee.

David Hermanson, Melcher's cellmate, stated that Melcher had admitted to him that he was trying to shoot the passenger but missed and hit the driver.

On October 20, 1995, the jury returned a verdict of guilty for both the murder and the attempted murder charges.

Penalty phase

On October 24, 1995, the State filed its intent to seek the death penalty based on the aggravating circumstance that the murder was committed by a person who knowingly created a risk of death to more than one person by means of a weapon, device, or course of action that would normally be hazardous to the lives of more than one person. The district court granted Lisle's motion for a mistrial on attempted murder, but denied a motion for mistrial for the murder charge.

During the penalty phase, several witnesses implicated Lisle in the Lusch case.

On October 26, 1995, the jury returned a sentence of death. On February 1, 1996, the judgment of conviction and a warrant of execution were filed. This appeal followed.

DISCUSSION

Whether the State violated Brady v. Maryland by failing to disclose a confession by the defendant and other material.

Lisle contends that the State failed to disclose a statement made by Melcher that included a confession by Lisle and impeachment evidence until after trial, in violation of his right to due process.

On July 24, 1995, Melcher gave a taped statement to police that Lisle now contends constitutes a "highly inflammatory and provocative confession" by himself to Melcher. Lisle argues that the State's failure to disclose this statement left him unable to prepare for Melcher's in-court testimony that Lisle confessed to Melcher. Lisle argues that this nondisclosure violates the holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the suppression of evidence favorable to the accused by the State violates due process where the evidence is material either to guilt or punishment. Id. at 87, 83 S.Ct. at 1196-97.

Where the defense makes no request or only a general request for evidence, " 'if the omitted evidence creates a reasonable doubt which did not otherwise exist, constitutional error has been committed.' Under this standard, evidence is material if there is a reasonable probability that the result would have been different if the evidence had been disclosed." Jimenez v. State, 112 Nev. 610, 619, 918 P.2d 687, 692 (1996) (citations omitted) (quoting Roberts v. State, 110 Nev. 1121, 1128, 881 P.2d 1, 5 (1994)).

The confession Lisle contends was suppressed supports the State's case; thus, Lisle's contention that it constitutes evidence "favorable to the accused" is a novel interpretation of Brady. Moreover, Melcher and Evans were present at the homicide, and their testimony corroborated Lisle's confession that he fired at the Mustang. Thus,...

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