Weber v. State

Decision Date15 September 2005
Docket NumberNo. 41525.,41525.
Citation119 P.3d 107
PartiesTimmy J. WEBER, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Philip J. Kohn, Public Defender, and Willard N. Ewing and Robert L. Miller, Deputy Public Defenders, Clark County, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Christopher J. Lalli, Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.

OPINION

BECKER, C.J.

Appellant Timmy J. Weber lived in Las Vegas with his girlfriend of about five years, Kim. Kim's 17-year-old son C., 15-year-old son A., and 14-year-old daughter M. also lived with Kim and Weber. Weber subjected M. to ongoing sexual abuse during this time and took pornographic photographs of the abuse. On the morning of April 4, 2002, Weber sexually assaulted M. and murdered A. and Kim. He immediately fled and traveled through several states. He reappeared in Las Vegas on April 14, the day of A. and Kim's funeral, when he attempted to murder C. and another person.

Weber was arrested two weeks later and charged with 17 felony counts, including two counts of murder with the use of a deadly weapon. After a jury trial, Weber was convicted of all the charges. For A.'s murder, the jury found 13 aggravating circumstances and returned a verdict of death. For Kim's murder, Weber was sentenced to life in prison without the possibility of parole.

Weber raises several issues on appeal. Although we conclude that some trial error occurred, any error was harmless beyond a reasonable doubt. We therefore affirm Weber's judgment of conviction and sentence of death.

FACTS

Guilt phase

Although Weber was Kim's boyfriend, he had an unhealthy relationship with her daughter, M., who was 14 years old when most of the crimes in this case occurred. Kim's older son, 17-year-old C., described Weber's relationship with his sister as one where the two were "overly affectionate towards one another." Sometimes Weber would "hang out" with M. all day long, buy her things, or take her to get her nails done. Weber was also protective of M. and made particular efforts to ensure that her brothers' friends could never associate with her. One of Kim's coworkers stated that Weber "treated [M.] more like his girlfriend than he did Kim, instead of a stepdaughter or child."

On April 3, 2002, Kim, her children, and Weber were in the process of moving into a new home, a trailer, in Las Vegas. M. testified that she had withdrawn from school because of the move and was home that day. Kim was not at home, but Weber was. M.'s friends were calling to say goodbye. When an African-American friend called for M. that evening, Weber answered the telephone and cursed at the boy. When M. told Weber that he should not curse at her friends, he told her that she did not need "fucking niggers," called her a "ho," and said that she "probably had sex with the dude." Weber's behavior upset M. She testified that she and Weber "would have arguments about just little things, like cleaning the room or something, but never like this." When she told her mother about the incident later that night, Kim yelled at Weber, and the two argued. Weber apologized to M. later that night, but she refused to accept the apology.

The next morning, on April 4, Kim went to visit her friend Robin Thornton. They talked about the arguments between Kim and Weber and between M. and Weber. Kim received telephone calls from Weber while she was at Thornton's home. Thornton testified, after unsuccessful objection by defense counsel, as to what Kim told her that morning. Kim left Thornton's a little before 11:00 a.m.

M. testified she was home alone with Weber that morning. Her oldest brother C. had spent the night at his friend Joey's apartment. Her other brother, 15-year-old A., had left to go skateboarding. As M. sat on the couch watching television, Weber told her to give him a hug. Still upset about the previous night, M. refused and told Weber that she wanted to go see her boyfriend. Weber then walked to the front door and closed it. He returned and pinned M. on the couch, duct-taped her hands together behind her back, and forced her into her bedroom. M. was scared and screaming. Weber told her to shut up, put duct tape around her head, and forced her into A.'s bedroom. Weber threw her on the bed and "hog tied" her.

As M. explained, "he taped each leg, each foot individually, and he tied them together. And then he brought up my legs and connected them to my hands and then he tied tape around my thighs so I [couldn't] open my thighs." Weber told M. that if she tried to escape he would kill her and that it would be easy to do. He turned up the volume of a radio "really loud" and told M. that she would be tied up until her mother returned home. He then left M. alone for a time. Other evidence established that Weber went to a Walgreen's store and purchased three large rolls of duct tape at 11:39 a.m. that morning.

M. testified that about 45 minutes after leaving her, Weber returned, cut the tape off her, and forced her into her own bedroom. Weber ordered her to undress, and she did. He then told M. that he was going to have sex with her, but she said that she could not because her hand hurt — Weber had cut her hand while cutting off the tape. Weber briefly left M. and returned with two ice packs and placed them on her hand. M. was crying, shivering, and lying on her bunk bed. Weber lay behind her, put on lubrication, inserted his penis into her vagina, and had sex with her. M. observed a clock in her bedroom that showed the time as 12:32 p.m. Afterwards, she went into the bathroom, used her mother's douche, and took a shower.

After the shower, despite her pleas, Weber told M. that he would have to tie her up again. Wearing only a towel, M. was taken back into her bedroom. Weber put socks over her hands, duct-taped them, and then duct-taped her legs together. He also duct-taped her head and body to the ladder of her bunk bed so that she could not move. Weber tried to stuff a sock in M.'s mouth, but she kept spitting it out. He then said that he was going to go check on her brother A. and would be back in five minutes. He turned up a television "really, really loud," covered her with a blanket, and left.

M.'s two brothers C. and A. had been hanging out that morning at their friend Joey's apartment, smoking marijuana, watching television, and playing video games. C. fell asleep on the couch, while A. and Joey skateboarded to a nearby gas station for snacks. A. and Joey were returning to the apartment around 2:30 p.m. when they saw Weber sitting in his car. A. went to talk to him. A few minutes later, A. returned to the apartment and told Joey that Weber said that A. had to go check in with his mother, Kim, and that she was going to give him $10. A. told Joey that he would try to be back before Joey left for work, around 3:45 p.m., or would see him later that night. As A. was leaving, another friend, Tony, arrived. Tony saw A., carrying his skateboard, get into a car with Weber and drive away.

About a half hour later, C. awoke from his nap in Joey's apartment. He decided to go home. When he arrived home, it was about 3:30 p.m. All of the doors were locked. C. tried to enter the house through a window but could not. He heard a television turned up very loud in M.'s bedroom. C. knocked on the window, and M. screamed when she heard the knocking. C. thought he heard a muffled scream but was not sure. So he returned to Joey's apartment to get some help. His friend Kareem was at the apartment and agreed to return with him to the house. When they reached the house, they heard M.'s screams. C. broke a window, entered, and let Kareem in through the front door. They found M. in her bedroom naked under a sheet and tied up with duct tape. C. uncovered her taped mouth and asked her who did it; she replied that it was Weber and warned that if Weber "finds out you guys know, he's going to kill us."

Kareem finished freeing M. while C. tried to call the police. The telephone was unplugged. After plugging in the telephone, he called 911 but was placed on hold by a recorded message. Fearing that Weber would return, the three left the house. C. gave M. his bicycle and told her to ride to Joey's apartment. C. and Kareem walked back to the apartment together. Because Joey's apartment did not have a telephone, C. went to a nearby gas station and called the police from a pay phone.

While C. was using the pay phone, Weber drove up to Joey's apartment. Weber asked Kareem, who was standing on the front porch of the apartment, if he had seen M. Kareem replied, "I don't know what you're talking about," and Weber drove away. Kareem then saw a police car driving by and frantically waved his arms. Nevada Highway Patrol Sergeant Philip Dart stopped and spoke with Kareem and M. Still crying and "very upset," M. told Sergeant Dart that Weber had tied her up for about five hours and forced her to have sex. Sergeant Dart noticed that M.'s knees and wrists were irritated and covered with a light gray residue from some type of adhesive.

C. returned to Joey's apartment, and M. repeatedly asked to speak with her mother. She thought that Kim was at the new trailer getting it ready for the family's move, but neither C. nor M. had Kim's cellphone number. So C. and M. returned with two troopers to the home to get the number. By this time, it was about 4:00 p.m. The troopers conducted a protective sweep of the home, and Sergeant Dart found A.'s body lying on a bed. The locked door to another bedroom was kicked open, and Kim's body was found in the bedroom closet.

After securing a telephonic search warrant, several Las Vegas Metropolitan Police Department (LVMPD) detectives and crime scene analysts...

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