Thomas v. State
| Decision Date | 25 November 1998 |
| Docket Number | No. 31019,31019 |
| Citation | 114 Nev. 1127,967 P.2d 1111 |
| Parties | Marlo THOMAS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
On April 15, 1996, appellant Marlo Thomas entered the Lone Star Steakhouse, his former place of employment, robbed the manager, and killed two employees. Thomas was convicted of two counts of first degree murder with use of a deadly weapon, one count of robbery with use of a deadly weapon, one count of first degree kidnapping with use of a deadly weapon, one count of conspiracy to commit murder and/or robbery, and one count of burglary while in possession of a firearm, and received two death sentences for the murders. On direct appeal, Thomas raises many contentions, none of which warrant reversal.
In March 1996, Thomas worked at the Lone Star Steakhouse in Las Vegas as a dishwasher until he was laid off from his job. Apparently Thomas had trouble showing up for work because he lived some distance away in Hawthorne with his wife, Angela Love Thomas.
On Sunday, April 14, 1996, Thomas, Angela, and Angela's fifteen-year-old brother, Kenya Hall, drove from Hawthorne to Las Vegas and arrived at the house of Thomas' aunt, Emma Nash, and cousin, Barbara Smith. At about 7:30 a.m. on Monday, April 15, 1996, the three travelers drove to the Lone Star Steakhouse in order for Thomas to try to get his job back. The restaurant was closed to the public that early in the day. Angela waited in the car while Thomas, accompanied by Hall, entered the Lone Star. No discussion about robbery occurred at any time between Thomas and Hall. According to Thomas, he possessed a loaded 9-millimeter weapon. As they were walking toward the building from the parking lot, a delivery truck arrived nearby. Thomas expressed dismay and returned to the car to retrieve another loaded gun before approaching the building again. At this time, Thomas possessed both a loaded .32-caliber revolver and a loaded 9-millimeter weapon.
The two went to the back door where employees usually enter. Stephen Hemmes, a Lone Star employee, was leaving temporarily because he did not have work-appropriate shoes. Thomas and Hemmes spoke for a few minutes, and Thomas inquired as to who was acting as manager that morning. Hemmes replied that the manager was Vincent Oddo, and Thomas stated that he did not like Oddo. Thomas further asked when Hemmes would return; Hemmes answered that he would return in approximately twenty minutes, and he left. Thomas then knocked on the back door, and another employee, Matthew Gianakis, opened the door for them to enter.
Thomas and Hall walked through the kitchen toward the manager's office. Thomas knocked on the office door, and Oddo, who was on the phone, let them in. In Thomas' videotaped confession, 1 Thomas stated that he and Oddo discussed Thomas' job, which led to an argument, and that Thomas left the office. Thomas further stated that he had no intent to commit robbery; however, he admitted that he returned to the office with Hall a minute later and pulled out his .32-caliber revolver. Thomas stated that Oddo became frightened and told Thomas and Hall to take whatever money they wanted. Despite the fact that Thomas admitted pointing the gun directly at Oddo, Thomas claimed that Oddo initiated the robbery by giving them money.
Both Hall and Oddo testified that upon Thomas' arrival at the manager's office, Thomas immediately snatched the phone from Oddo's hand, hung it up, and pulled out his .32-caliber revolver. Thomas pointed it directly at Oddo's face and demanded that Oddo open the safe and give them the money. Oddo complied, and Thomas handed the gun to Hall and requested that Hall retrieve the money from Oddo. It is disputed whether Thomas told Hall to shoot Oddo. Although frightened and confused, Hall took the gun from Thomas, remained in the office with Oddo, took two or three bank bags of money from Oddo, allowed Oddo to run out of the building, and left to return to the car.
After Thomas gave Hall the gun, but before any money exchanged hands, Thomas left the office because he knew that two employees and former co-workers, twenty-one-year-old Gianakis and twenty-four-year-old Carl Dixon, were "circling around." According to Thomas' videotaped confession, Thomas went to the men's restroom, which was also a hangout for the employees, to find the two men. Upon entering the bathroom, Thomas saw Gianakis at the sink and Dixon in a stall. Thomas also observed that Gianakis had laid a meat-carving knife with a five- to seven-inch blade on the bathroom counter. Thomas blocked the door to prevent the two from leaving the bathroom while the robbery was taking place in the manager's office. A struggle ensued between the three men, and Thomas picked up the knife and stabbed Dixon several times until Dixon fell to the floor. Meanwhile, Gianakis ran from the bathroom, and Thomas ran after him, stabbing him once in the front and once in the back.
Evidence was also presented at trial that Thomas specifically enticed or attempted to entice the two victims into the bathroom. Hall's testimony revealed that Thomas explained that he told Dixon he needed to talk in the bathroom. Once Dixon entered the bathroom with Thomas, Thomas began stabbing him. Thomas told Hall that he then called to Gianakis to join him in the bathroom, but Gianakis refused to enter. Then, according to Hall, Thomas chased Gianakis around the corner and stabbed him twice.
After returning to the car, Thomas asked Hall if Hall had killed Oddo. Upon learning that Hall had not, Thomas stated that Hall should have done so because "you're not supposed to leave witnesses ." At some point, the money from Oddo's office was transferred from the bank bags to a dark blue pillowcase.
Oddo, who had escaped after giving Hall the money, ran across the street to call for help. Gianakis, who had just been stabbed twice, stumbled next door to a gas station/mini-mart and collapsed, dying shortly thereafter. Dixon's dead body remained on the bathroom floor.
The medical examiner testified at trial that Dixon suffered fifteen defensive stab wounds on his extremities and three to five severe stab wounds on his right chest about six inches deep, penetrating his heart, lungs, pulmonary artery, and aorta. The cause of Dixon's death was multiple stab wounds. The medical examiner further testified that Gianakis suffered two fatal stab wounds, one to his chest and one to his back, penetrating both his heart and left lung. The cause of Gianakis' death also was stab wounds.
Thomas, Hall, and Angela returned to Nash and Smith's house. Thomas told both Nash and Smith that if anyone asked, they should state that they had not seen him. Smith noticed that Thomas' clothes and shoes were bloody. The blood on the clothes and shoes was later determined to be consistent with Dixon's blood. Thomas gave Smith the money-filled pillowcase, and she started counting the contents. Thomas told her that "I did it" and that he had to take care of something and get rid of two people. He also stated to Nash that one of the two men got away (referring to Gianakis) and Thomas hoped that he (Gianakis) died. Thomas gave $1,000.00 to Smith to give to his mother, and he gave the .32-caliber revolver to Nash to give to her son. Thomas then changed his attire and took his bloody clothes and shoes, the knife used in the Lone Star bathroom, and the 9-millimeter gun into the desert beyond the house's backyard. The police recovered all the items except for the 9-millimeter gun, which was never found.
Thomas, Hall, and Angela packed the pillowcase containing the rest of the money into the car trunk and drove back to Hawthorne, where they were arrested. On April 22, 1996, Thomas and Hall were each charged with two counts of murder with use of a deadly weapon, and one count each of robbery with use of a deadly weapon, first degree kidnapping with use of a deadly weapon, conspiracy to commit murder and/or robbery, and burglary while in possession of a firearm. On June 27, 1996, Hall pleaded guilty to robbery with use of a deadly weapon and agreed to testify against Thomas at all necessary proceedings. In exchange, the state dropped the remaining charges and agreed to argue for no more prison time than a two-to-fifteen-year prison term for robbery and a consecutive like term for the weapon enhancement. The agreements stated that if Hall violated the agreements, they would become null and void, and the state would be entitled to prosecute Hall on all the charges.
On June 27, 1996, Hall testified at Thomas' preliminary hearing. Thomas was bound over for trial on all the charges, and the state filed the information on July 2, 1996. The next day, the state filed its notice of intent to seek the death penalty against Thomas.
On February 20, 1997, Hall filed a proper person motion to withdraw his guilty plea. On June 11, 1997, Hall's attorney filed a motion to prevent Hall from being called to testify against Thomas at trial, invoking Hall's Fifth Amendment right against self-incrimination. Because of Hall's motion and intention not to testify at Thomas' trial, on June 12, 1997, the state filed a motion to use Hall's preliminary hearing testimony at Thomas' trial. On June 13, 1997, without Thomas' or his attorneys' presence, the district court conducted a hearing on Hall's and the state's motions in order to determine whether Hall intended to renege on his agreement to testify. The court, however, specifically made no ruling because neither Thomas nor his attorneys were present.
Thomas' trial began on June 16, 1997....
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