Nevius v. State

Decision Date20 May 1985
Docket NumberNo. 14683,14683
Citation101 Nev. 238,699 P.2d 1053
PartiesThomas NEVIUS, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty. and James Tufteland and Thomas R. Green, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

MOWBRAY, Justice:

A jury convicted appellant Thomas Nevius of one count of first degree murder and three other felonies: burglary, robbery and attempted sexual assault, all with the use of a deadly weapon. At the penalty hearing on the first degree murder conviction, the jury found that the homicide was committed under four aggravating circumstances and under no mitigating circumstances. The jury returned the penalty of death. On appeal, Nevius raises numerous assignments of error, none of which is of sufficient merit to warrant reversal of the judgment of conviction or the sentence. Having found no error, and having concluded that Nevius was fairly tried, convicted and sentenced, we affirm.

THE FACTS

On the evening of July 12, 1980, appellant and three other men decided to burglarize an apartment in Las Vegas. They selected the residence of David and Rochelle At the guilt phase of appellant's trial, Rochelle Kinnamon testified in detail concerning the events of the evening of her husband's murder. She positively identified appellant as the man who fired the fatal shots, stating that she would never forget his face. The state also presented the testimony of David Nevius, appellant's stepbrother and one of the three men involved in the burglary. David Nevius confirmed that the four had planned a burglary, and he testified that appellant had a .38 snubnose revolver with him when he entered the Kinnamon home. David Nevius further testified that after the shooting, when the quartet gathered at the Nevius family home, appellant admitted that he fired the gun and that he might have shot someone; appellant also admitted that he "may have" sexually assaulted Mrs. Kinnamon, and said, "I almost could have f....d her." Other testimony and physical evidence established that a .38 revolver recovered from the Nevius residence fired the fatal bullets. A pair of pants identified by Rochelle Kinnamon as those worn by the robber were found in or near appellant's bedroom. Rochelle Kinnamon's watch was also found in the Nevius home, along with a box of .38 ammunition of the same type as that recovered from David Kinnamon's body.

                Kinnamon and entered the apartment while Rochelle Kinnamon was home alone.  Appellant accosted Mrs. Kinnamon at gunpoint and asked her where she kept her money and diamonds.  Learning that the Kinnamons had little money and few items of value in their home, appellant and another man dragged Rochelle into the bedroom and placed her on the bed.  Appellant attempted to assault Rochelle sexually while holding a revolver to her jaw.  During the attempted assault the two other men ransacked the kitchen and living room areas of the apartment.  David Kinnamon suddenly returned home from work, causing the four men to flee through the bedroom window, leaving Rochelle Kinnamon huddled on the bed.  As appellant, the last man out, climbed through the window, David Kinnamon opened the bedroom door and said, "What's going on?";   appellant turned and fired four shots at David as he stood in the bedroom doorway, and while his wife lay on the bed between the window and the door.  David Kinnamon died almost instantly from massive hemorrhaging caused by a bullet wound to the brain.  Ballistics testimony revealed that appellant's revolver was a .38 loaded with hollowpoint ammunition
                

Appellant's defense was essentially one of misidentification. He admitted that he was involved in the crime but claimed that he was not the one who fired the revolver that killed David Kinnamon. During his cross-examination of Rochelle, appellant sought to impeach her eyewitness identification. The cross-examination established that although Rochelle testified on direct that the bedroom lighting was adequate for an identification, and that she was positive it was appellant who had fired the shots, Rochelle had told the grand jury that it was dark in the bedroom and that she could not actually identify the killer. Rochelle Kinnamon explained these discrepancies by explaining her emotional state at the time of the grand jury proceedings, which were conducted fairly soon after her husband's murder.

In furtherance of his defense of misidentification, appellant presented the testimony of a hair analyst, who told the jury that the hairs found on a discarded cap, supposedly worn by the killer, were either dissimilar to or inconsistent with the hairs of Thomas Nevius. Gregory Leon Everett, the third man involved in the burglary, had received a life sentence for felony murder for his role in the killing; he testified that appellant was involved in the incident but did not kill the victim. Appellant also brought out certain facts which suggested that appellant did not own the pants identified by Rochelle, and which suggested that it was Everett, not appellant, who fired the revolver. Rochelle had testified that appellant briefly lost the revolver during the attempted sexual assault; the defense evidence suggested that Everett entered the bedroom, obtained the weapon, and killed In rebuttal, the state presented a videotaped statement made by Everett soon after the shooting, in which he identified appellant as the killer. The state also presented testimony refuting Everett's claim at trial that this statement was false and was coerced by police.

David Kinnamon while fleeing the apartment.

The jury was instructed on both premeditation/deliberation and felony murder theories of liability for first degree murder. The jury returned a general verdict finding appellant guilty of murder, but without specifying upon which theory its verdict was based. The jury also found appellant guilty of the burglary of the apartment and the robbery and attempted sexual assault of Rochelle Kinnamon, all with the use of a deadly weapon.

At the penalty hearing held on the first degree murder conviction, the state sought the death penalty based on the following alleged statutory aggravating circumstances: (1) that the murder was committed by a person previously convicted of another murder or violent felony; (2) that the murder was committed by a person under a sentence of imprisonment; (3) that the murder was committed by a person who knowingly created a great risk of death to more than one person, by means of a weapon, device or course of action which would normally be hazardous to the lives of more than one person; and (4) that the murder was committed during the course of a burglary, robbery and attempted sexual assault. See NRS 200.033(1), (2), (3), (4).

The state established the first aggravating factor by presenting evidence that appellant was convicted of second degree murder in Philadelphia in 1971, at the age of 15. The state established the second factor by showing that appellant was sentenced to five to fifteen years in a minimum security juvenile facility for the murder, but that he had escaped from custody prior to the expiration of his sentence. The evidence revealed that appellant had been granted parole and that he had been placed in a transitional facility for prospective parolees, but that he had become frustrated at the six-month delay of his release papers and walked away from the institution. Although this record does not show that the State of Pennsylvania has made any attempts to obtain custody of appellant to institute revocation proceedings, the evidence did establish that appellant was still "under a sentence of imprisonment" at the time of the Kinnamon murder.

The state established the third and fourth aggravating factors by citing evidence presented at the guilt phase, i.e., that Rochelle Kinnamon was in the bedroom close to the path of the bullets fired at her husband, and that the murder was committed during the commission of the three listed felonies. The state again played Everett's videotaped statement which implicated appellant as the killer.

Nevius presented considerable evidence in mitigation of punishment. He established that he had been a model inmate at the Pennsylvania facilities and at the Clark County jail. He presented the testimony of the attorney who represented him in the prior murder proceeding, who testified that the murder was one of many youth gang killings that occurred in Philadelphia in the early seventies. The attorney related that the killing was not a classic case of first degree murder and had some elements of self-defense. The attorney also described the Philadelphia ghetto area in which appellant was raised as a "jungle."

Sonny Nevius, appellant's father, testified that appellant had been raised by an alcoholic, possibly abusive mother of some apparent emotional instability; he told the penalty jury that his son was a good man, whom he loved and whom he did not want to die. Dorothy Benson, the mother of appellant's young son, testified with the boy on her lap and told the jury that the appellant meant everything to her. Other witnesses expressed their love for appellant and confirmed his difficult background.

Gregory Everett testified that appellant was intoxicated at the time of the murder. According to Everett, on the day of the Appellant took the stand on his own behalf and related his version of the events of July 12. He told the penalty jury he had drunk heavily that day, had smoked marijuana and had taken two quaaludes. He described himself as "pretty spaced out." He admitted involvement in the burglary but denied he fired the shots that killed David Kinnamon, and he expressed remorse over his death. He insisted that he lost the gun in the bedroom and that it was retrieved by someone else. He stressed a point established by...

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