Mortensen v. State

• Decision Date: 27 September 1999
• Docket Number: No. 30855.,30855.
• Citation: 986 P.2d 1105,115 Nev. 273
• Parties: Ronald Lawrence MORTENSEN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

986 P.2d 1105

115 Nev. 273

Ronald Lawrence MORTENSEN, Appellant, v. The STATE of Nevada, Respondent.

No. 30855.

Supreme Court of Nevada.

September 27, 1999.

Rehearing Denied December 27, 1999.

Frank J. Cremen, Las Vegas, for appellant.

Frankie Sue Del Papa, Attorney General, Carson City, Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, William T. Koot, Chief Deputy District Attorney, Clark County, for respondent.

BEFORE MAUPIN, AGOSTI and BECKER, JJ.

OPINION¹

AGOSTI, J.

On December 27, 1996, Ronald Mortensen ("Mortensen"), an officer with the Las Vegas Metropolitan Police Department ("LVMPD"), celebrated his thirty-first birthday at a Las Vegas drinking establishment. Chris Brady ("Brady"), another LVMPD officer, was among the revelers.

Around midnight, the celebration ended. Mortensen's wife went home, while Mortensen and Brady left in Brady's blue 1974 Dodge pickup truck. Brady and Mortensen then drove away. Brady drove and Mortensen occupied the passenger's seat. Prior to their departure, Mortensen gave his wife his fanny pack, but removed from it his off-duty weapon, a .380 Sig Sauer gun. Brady and Mortensen ultimately drove into an alley abutting 537 McKellar Circle, an area known for gang activity, where a group of people had gathered. It is undisputed that the passenger side of Brady's truck faced the group. Witnesses saw a handgun appear in the passenger's window, after which six shots were fired. One man, Daniel Mendoza, was fatally wounded. The truck then pulled away and left the area.

Following the incident, Mortensen and Brady went to PT's Lounge in Las Vegas, a bar frequented by off-duty police officers. Later, Brady drove Mortensen home.

Brady claims that the next morning, Saturday, he discovered Mortensen's Sig Sauer in the pickup. Brady removed the bullets from the magazine and the chamber, placed the gun in his bathroom cabinet and went fishing. On Sunday morning, Brady contacted his father, who was also a police officer. Brady, accompanied by his father, then drove to the police station, where Brady gave a statement identifying Mortensen as the shooter.² Brady also turned over Mortensen's Sig Sauer. That evening, Mortensen was arrested. The State treated Brady as a witness rather than as an accessory. Thus, he was never arrested or charged in connection with his role in the affair.

During the investigation, the police went to Brady's apartment to retrieve the truck and Brady's gun, a .38 Taurus revolver. The truck was towed to a crime lab where the passenger side was examined by a criminalist. The truck was returned to Brady a day or two later. Mortensen's gun was checked for fingerprints. Two identifiable prints left by Mortensen were recovered from the slide of the weapon.

On January 15, 1997, Mortensen appeared at a bail hearing before a justice of the peace. Mortensen's counsel made an oral request for Brady's truck and clothing. Although noting that it had no jurisdiction over Brady's property, the court requested that the State ask Brady not to destroy any evidence.

On January 23, 1997, Mortensen was arraigned in the district court. At that hearing, Mortensen made another oral request for Brady's truck and clothing. The court told Mortensen that he would have to obtain those items through his own resources. Sometime within the next few weeks, Mortensen was able to obtain both the truck and the clothing. The clothing had been laundered. The custom seat that had been in the truck on the night of the shooting had been removed and sold. The truck had been repainted, the tint had been removed from the side windows, and the clutch and carburetor had been adjusted.

At a pre-trial hearing, on April 24, 1997, the State claimed that no additional discovery was forthcoming.

On April 28, 1997, the first day of trial, Mortensen received copies of two reports from Torrey Johnson ("Johnson"), the State's firearms expert. The first report, dated April 25, 1997, indicated that, on February 18, 1997, Johnson had examined Brady's truck and concluded that a dent in the floorboard was not made by a bullet strike. The report also indicated that on April 23, 1997, Johnson examined two bullet strikes at the murder scene, one on an electrical box and another on a laundry room doorway, and concluded that the laundry room bullet had been travelling slightly upwards. Johnson also concluded that both bullets came from Mortensen's gun. The second report, dated April 28, 1997, indicated that on April 25, 1997, Johnson examined a piece of sheet metal from the murder scene and concluded it had been struck by a bullet from Mortensen's gun which was travelling perpendicular to the surface of the sheet metal.

The State called several eyewitnesses at trial. Five witnesses gave similar descriptions of the shooter, describing him as a large, white male who wore glasses and was the passenger in the truck. Two of those witnesses specifically identified Mortensen as the shooter, and one of those witnesses stated that the truck moved during the shooting. It was established that Mortensen was six feet, two inches tall and weighed 220 pounds, while Brady was five feet, nine inches tall and weighed 165 pounds. It was also established that Mortensen wore glasses on the night of the shooting.

No witnesses identified Brady or anyone else as the shooter.

Brady was called as a State's witness. He testified that the center console of the custom truck seat was lowered at the time of the shooting, and therefore it would have been impossible for him to reach across the truck cab in order to fire a gun out of the passenger window. However, Brady did admit that he drew his weapon, a Taurus revolver, immediately after Mortensen drew his gun. Brady claimed he pointed the Taurus out the passenger window, but did not fire. Brady testified that he pressed down on the truck's accelerator, after shooting commenced.

At this point in the trial, Mortensen sought to question Brady about two prior incidents, which had resulted in an internal affairs investigation of Brady.³ The incidents resulted in, at most, minor internal corrective action. The court sustained the State's objection to this line of inquiry.

The State called Johnson as an expert witness. Johnson identified Mortensen's Sig Sauer as the murder weapon. He testified that the Sig Sauer must have been fired from outside the truck cab, due to the ejection characteristics of the gun, and the fact that all the shells were found on the ground at the crime scene. Johnson also gave an opinion with regard to the trajectories of the bullets fired at the crime scene. Specifically, Johnson analyzed three bullet strikes: one located on a piece of sheet metal; another on a metal electrical box; and a third through a glass window and into a laundry room door. Johnson testified that in his opinion, based on the location of the bullet strikes, the gun moved at least six feet during the shooting. Shortly thereafter, Mortensen moved for a mistrial, claiming that the State failed to provide notice that Johnson would testify that the truck moved while the shots were fired. The motion was denied.

Mortensen testified in his own defense. He admitted he was in the passenger seat on the night of the shooting, but claimed that Brady was the shooter. Mortensen testified that Brady suddenly retrieved the Sig Sauer from underneath Mortensen's buttocks, reached across the cab of the truck and fired at the group of people outside. Then, according to Mortensen, Brady indicated he would dispose of the gun, and that Brady placed it in a secret compartment in the center section of the custom truck seat. Mortensen also testified that he asked Brady why he had fired the shots and that Brady then called himself "evil."

Brady's truck was introduced into evidence. Although Brady had removed the custom seat after the shooting, the defense was able to reacquire the same seat and place it in the truck for demonstration purposes at trial. Members of the jury observed the truck with the custom seat in place and were able to sit inside the truck.

On May 14, 1997, the jury found Mortensen guilty of first-degree murder with the use of a deadly weapon. He was sentenced to two consecutive terms of life imprisonment without the possibility of parole.

DISCUSSION

Applicability of NRS 48.045(2)

Mortensen argues that Brady's prior bad acts, primarily two incidents reported to the internal affairs division of the police department, should have been admitted notwithstanding NRS 48.045(2):

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added.)

Mortensen asserts that NRS 48.045(2) applies only to an accused and not to a witness; that the prior bad acts tend to identify Brady as the shooter; and that the prior bad acts show a pattern of hot-headed, impulsive and brutish behavior by Brady. We hold that no abuse of discretion was shown with regard to the district court's exclusion of references to Brady's prior bad acts.

The admissibility of prior bad acts evidence is within the discretion of the trial court, whose "decisions will not be disturbed on appeal unless manifestly wrong." Crawford v. State, 107 Nev. 345, 348, 811 P.2d 67, 69 (1991).

The plain language of NRS 48.045(2) uses the term "person," rather than "defendant," or "accused." In Nevada, "words in a statute should be given their plain meaning unless this violates the spirit of the act." McKay v. Board of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986).

Had the legislature intended NRS 48.045(2) to apply only to an accused, the word "person" would not have been used. For example, NRS 48.045(1) specifically uses the terms "accu...