Wesley v. State
| Decision Date | 30 April 1996 |
| Docket Number | No. 27175,27175 |
| Citation | 916 P.2d 793,112 Nev. 503 |
| Parties | Herbert Dwayne WESLEY, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy, and David Schwartz, Deputy, Clark County, for Respondent.
A jury convicted appellant Herbert Dwayne Wesley ("Wesley") of one count of robbery with a deadly weapon and two counts of murder with a deadly weapon. The jury sentenced Wesley to death. For the reasons set forth below, we affirm the judgment of conviction and sentence.
On Tuesday, March 10, 1992, Robert Walker ("Walker"), a neighbor of Ike and Doella Wesley's ("Ike and Doella"), noticed Wesley driving Ike's truck. Because Walker had never seen Wesley driving Ike's truck before, Walker asked Wesley where Ike was. Wesley, who was Ike's son and Doella's stepson, resided in Ike and Doella's home. He said Ike was at work. Wesley then entered Ike and Doella's home after unlocking the security bars and front door. Later that day, Walker knocked on the door of Ike and Doella's home to contact Ike. After no one responded to the knocks, Walker looked through a window and noticed Ike's body lying on the floor.
Daniel Holstein ("Holstein"), a crime scene analyst for the Las Vegas Metropolitan Police Department, went to Ike and Doella's home to investigate the apparent homicide. Holstein found Ike's body in the home's dining room/kitchen and found Doella's body covered by a blanket in a bedroom opposite the kitchen. Holstein obtained fingerprints and blood samples from objects in the house. Holstein also noticed a television antenna on the floor of the residence and a tabletop with a dust pattern, both indicating that a television had been removed from the table.
Officer Robert Plummer ("Plummer") responded to Ike and Doella's home and left with Ike's grandson, Anthony Carter ("Carter"), to find Wesley. Plummer and Carter went to a home where Ike's truck was parked and later saw Wesley cautiously approach the truck. Plummer took Wesley into custody and transported him to Ike and Doella's home. Detective Norm Ziola ("Ziola") then questioned Wesley. Wesley stated that he had not been at the home since Sunday, March 8, 1992, when he borrowed Ike's truck. Ziola noticed abrasions on Wesley's hands. Ziola then arrested Wesley, impounded his clothes and transported him to the Clark County Detention Center.
Dr. Robert Jordan ("Jordan") performed autopsies on Ike's and Doella's bodies on March 11, 1992. Jordan discovered that Ike was stabbed approximately eighteen times in the head, neck, chest, abdomen and right hand. According to Jordan, Doella was stabbed thirty-six times, including twenty-six stab wounds in her chest and shoulders. Jordan concluded that Ike and Doella were killed between twenty-four and forty-eight hours before the autopsy, and that the killings occurred relatively contemporaneously.
On May 5, 1992, Wesley was charged by information with one count of robbery with a deadly weapon and two counts of murder with a deadly weapon. The State filed a notice of intent to seek the death penalty.
At trial, Roderick Rancher ("Rancher") testified that he knew Wesley for nearly ten years and that at 7 a.m. on March 9, 1992, Wesley asked Rancher if he wanted to buy a VCR, television or microwave. Rancher also testified that Wesley asked him where he could buy drugs. Wesley contacted Rancher again later in the day about purchasing the appliances. Rancher then went to Ike and Doella's home to buy the appliances. Wesley was wearing a blue robe and a towel was wrapped around his hand. Rancher saw blood on the robe and the towel. Wesley told Rancher that he cut his hand and spilled blood on the robe when he was cutting chicken.
Jackie Blood ("Blood") testified that she and Wesley had a child together and that she and the child spent a great deal of time with Ike and Doella. On March 8, 1992, Blood and Wesley had a heated argument at Blood's place of employment, and Wesley was forced to leave the establishment. Blood then notified Ike and Doella that her child would no longer spend time at their house. On March 10, 1992, Blood saw Wesley in the front yard of Ike and Doella's home in a blue robe. Blood also stated that she never knew Ike and Doella to allow Wesley to use their truck. On cross-examination, Blood admitted A crime lab expert testified regarding blood tests that were conducted at a crime laboratory. Based on a phosphoglucomutase sub-typing system, the expert was able to distinguish Ike's, Doella's and Wesley's blood. The expert concluded that the blood taken from objects in Ike and Doella's home could have been Wesley's blood. Blood from the socks Wesley was wearing when he was arrested was from Doella, Ike or Wesley. Based upon the evidence presented, the jury found Wesley guilty on all counts.
that she was an ex-felon and that she did not tell the police in her initial statement that she saw Wesley on Tuesday morning in Ike and Doella's front yard.
During the penalty phase of the trial, the prosecution presented evidence that Wesley was convicted of assault with a deadly weapon and robbery in 1983. Also, Walker, Blood and one of Ike's co-workers testified that Ike was a fine friend and church member, and would be severely missed. Two witnesses testified that Doella was a fine person and they would miss her greatly. One witness stated that Wesley should die for killing Doella. Numerous witnesses testified that they did not think Wesley should receive the death penalty for his actions. At the conclusion of the penalty phase, the jury sentenced Wesley to death.
Wesley contends that nine errors occurred during the guilt phase of his trial. We conclude that none of Wesley's nine assignments of error merit reversal of Wesley's conviction.
Before trial, Wesley's counsel requested that the district court recuse a deputy district attorney from this case because of an alleged personal relationship between the female deputy district attorney and the male district judge. The right to a fair trial incorporates the right to have a trial presided over by a judge who is free from bias or prejudice. Bias and prejudice mean, among other things, undue favoritism toward one of the litigants. See State v. Hill, 174 Ariz. 313, 319-21, 848 P.2d 1375, 1381-83 (1993). Further, courts must avoid any appearance of partiality, not merely to secure the confidence of litigants in a case, but to assure the public that fair results, meriting respect, follow every judicial determination. NCJC Canon 2; People v. Hrapski, 718 P.2d 1050, 1054 (Colo.1986).
The district judge in this case admitted that a relationship existed between the deputy district attorney and himself, but explained that the relationship was merely professional. Wesley failed to present any non-speculative evidence that the judge had anything more than a professional relationship with the deputy district attorney. Also, the judge stated under oath that as an attorney for twenty-two years before taking the bench, and as a judge and active member of the State Bar, he personally knows nearly every attorney in Clark County. Without more proof of an intimate relationship, we conclude that the judge in this case acted properly by refusing to recuse the deputy district attorney. 1
Wesley requested that the district court exclude any evidence of his 1983 convictions for robbery and assault with a deadly weapon. The district court ruled that the convictions could be admitted for the purpose of impeachment if Wesley testified. Wesley did not testify, and the prior convictions were not admitted during the guilt phase of the trial. Wesley argues that the denial of his motion to suppress his prior convictions was improper. The decision to admit evidence is within the sound discretion of the district court and will not be disturbed unless it is manifestly wrong. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). Evidence of a prior conviction may be admitted for the purpose of impeachment if the conviction involved a sentence of death or imprisonment for more than one year, and the conviction is not more than ten years old. NRS 50.095. Also, the Nevada Legislature intended
district courts to admit evidence of prior convictions for crimes that reflect untruthfulness after balancing the probative value and prejudicial effect of the convictions. Yates v. State, 95 Nev. 446, 449-50, 596 P.2d 239, 241 (1979). Having fully reviewed Wesley's contention, we conclude that the district court was not manifestly wrong in ruling that Wesley's prior convictions could be admitted if Wesley testified. See id.; Anderson v. State, 92 Nev. 21, 23, 544 P.2d 1200, 1201 (1976).
After the State prevailed on three motions to endorse names, the witness list for Wesley's trial was increased from fifty-three witnesses to seventy-seven witnesses during the two weeks preceding trial. Wesley objected to the endorsements and requested a continuance of trial because the preparation necessary for effective assistance of counsel allegedly could not be completed before the trial date. Wesley's request for a continuance of trial was denied; and Wesley now argues that the district court's endorsement of additional witnesses, coupled with the denial of his motion to continue the trial, denied Wesley effective assistance of counsel.
The decision to grant or deny trial continuances is within the sound discretion of the district court and will not be disturbed absent a clear abuse of discretion. Doyle v. State, 104 Nev. 729, 731, 765 P.2d 1156, 1157 (1988). In three...
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