West v. State

• Decision Date: 08 September 2003
• Docket Number: No. 38696.,38696.
• Citation: 75 P.3d 808,119 Nev. 410
• Parties: Brookey Lee WEST, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

75 P.3d 808

119 Nev. 410

Brookey Lee WEST, Appellant, v. The STATE of Nevada, Respondent.

No. 38696.

Supreme Court of Nevada.

September 8, 2003.

Rehearing Denied October 24, 2003.

Marcus D. Cooper, Public Defender, and Scott L. Coffee, Deputy Public Defender, Clark County, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and Frank J. Coumou and James Tufteland, Chief Deputy District Attorneys, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

PER CURIAM:

Brookey West was charged with and convicted of murdering her mother, Christine Smith. West was sentenced to life in prison without the possibility of parole. West contends that (1) there was insufficient evidence of criminal agency, (2) the charging information was vague, (3) the district court erroneously admitted gruesome photographic evidence, and (4) the prosecutor committed misconduct during closing argument. We conclude that West's contentions lack merit and therefore affirm.

FACTS

On February 5, 2001, Bill Unruh, general manager of Canyon Gate Mini Storage in Las Vegas, sensed a foul smell emanating from storage unit 317. After opening the unit, Unruh observed a garbage can with a substance oozing out. Based on the foul smell and his observations, Unruh called the police. When the police arrived, Unruh informed them that West and Smith rented unit 317 on June 26, 1998.

Joseph Matvay, a crime scene analyst, described the foul smell emanating from unit 317 as "the unmistakable smell of death." Inside unit 317, Matvay observed a substance seeping out from the side of a green garbage can and a wet stain underneath the garbage can. Matvay conducted a presumptive blood test on the wet stain, and the test was positive. Based on the test results, Detective Todd Rosenberg secured a telephonic search warrant for unit 317. Thereafter, Matvay opened the garbage can, which was secured with several strips of duct tape, garbage bags and cellophane wrap. Matvay opined that the garbage can was sealed with great effort to make it airtight.

Upon cutting the duct tape and wrapping from the garbage can, fluid began seeping out, along with dead maggots. Once the garbage can was open, Matvay observed a human form in advanced stages of decomposition at the bottom of the garbage can. He also observed a white plastic bag covering the face, which was knotted at the back of the head. Matvay impounded the wrapping and duct tape, while the garbage can containing the human form was transported to the coroner's office. The wrapping and duct tape were processed for fingerprints; Joel Geller, latent print examiner, found a fingerprint on the cellophane wrap, which matched West's fingerprints.

In searching unit 317, Detective David Mesinar found Smith's wallet containing her identification, prescription information, and a document regarding authorization of social security payments. Based on dental records, the coroner confirmed that Smith's body was in the garbage can.

Shortly thereafter, Detective Mesinar obtained a search warrant for West's apartment. In searching West's apartment, Detective Mesinar found Smith's bank statements. During his investigation, Detective Mesinar determined that there were numerous ATM withdrawals on Smith's bank account after February 1998, when Smith was last seen alive.

West was arrested on the evening of February 5, 2001. On April 26, 2001, West was charged with murdering Smith, her 64-year-old mother, sometime in 1998 by asphyxiation, suffocation, or manner or means unknown.

Before trial, the district court held a Petrocelli¹ hearing. After the hearing, the district court ruled that evidence that West had accessed Smith's bank account was admissible because it was relevant to prove motive. The district court also ruled that the State could not present evidence that West possibly accessed her brother's and father's bank accounts. However, the district court allowed the admission of a letter that West sent to the Social Security Administration requesting that the social security checks of Travis Smith Jr., West's brother, be directly deposited into his bank account for the limited purpose of showing that West knew her brother was a recluse.

Also before trial, West filed several motions in limine, including among other things, a motion to exclude photographs of the decomposed body and to strike the language in the charging information, "manner and means unknown." The district court denied both motions.

A jury trial commenced on July 3, 2001. Gary Telgenhoff, M.D., a forensic pathologist, testified that he conducted Smith's autopsy. Dr. Telgenhoff testified that Smith's body was so decomposed that the majority of it was covered with a waxy, cheese-like material, which is known as adipocere. He explained that adipocere is decomposition material produced from the breakdown of body fats and fatty acid. He maintained that the finding of adipocere was consistent with Smith's body being kept in a sealed container. He explained that it takes a minimum of six months to produce adipocere and opined that Smith's body had been in the garbage can for longer than six months. Notably, based on the maggots found inside the garbage can, Neal Haskell, Ph.D., a forensic entomologist, opined that Smith's body was placed inside the garbage can within eight hours of death.

Dr. Telgenhoff testified that when he removed the clothing from Smith's body, he observed that the clothing was not ripped or damaged. After removing the clothing, Dr. Telgenhoff took x-rays, which revealed that Smith had osteoporosis.

Dr. Telgenhoff testified that a white plastic bag covered Smith's nose and mouth. Robbie Dahn, a crime scene analyst, testified that the plastic bag covered Smith's face from the bridge of her nose to her chin. Dahn explained that the plastic bag was tied in a knot behind Smith's head at the base of her neck. Dr. Telgenhoff recovered a long hair within the knot, which according to Dr. Telgenhoff, possibly indicated that the knot was tied in haste. Dr. Telgenhoff testified that the plastic bag was tightly tied and that it would have been even tighter before decomposition. He could not testify whether the plastic bag was placed on Smith's face before or after her death, and he could not rule out the possibility that the plastic bag originally covered Smith's eyes and slipped down because of decomposition.

John Haitt testified that he tested Smith's brain for drugs, and the test was negative. However, Haitt explained that the sample was in poor condition for testing purposes because Smith's brain was liquid.

Dr. Telgenhoff opined that the cause and manner of Smith's death were undetermined. He explained that there were no remaining physical findings to suggest why or how Smith died. However, regarding the State's theory of suffocation, Dr. Telgenhoff opined that the finding of the plastic bag covering Smith's face was consistent with suffocation. Dr. Telgenhoff explained that it is difficult to prove suffocation, but in doing so, he looks for petechial hemorrhage in the eyes—red dots on the whites of the eyes—or for pressure marks on the skin or bruising. Because Smith's body was severely decomposed, with no details of her eyes remaining and no tissue on Smith's body, Dr. Telgenhoff stated that he could not make the determination of cause of death by suffocation. Additionally, regarding the State's theory of asphyxiation, Dr. Telgenhoff stated that it was possible that Smith was placed in the airtight garbage can alive.

Because the cause and manner of death were undetermined, Dr. Telgenhoff opined that Smith's death was also consistent with natural causes. Dr. Telgenhoff testified that after Smith was identified, he reviewed her medical records; however, he did not study them in detail. He explained that nothing in Smith's medical records provided any reason for a possible cause of death. He stated that there was nothing that indicated heart disease, but he maintained that he could not rule out a possible heart attack. Dr. Telgenhoff acknowledged that Smith had asthma and that she had a lung age of 132 years.

Judy Zito-Pry, a nurse practitioner, testified regarding Smith's medical history. Zito-Pry treated Smith on several occasions, beginning on April 1, 1997. During Smith's first visit, Smith informed Zito-Pry that she had a history of asthma; a past history of smoking; and currently was having memory problems. Zito-Pry explained that in January 1997, Smith had a lung age of 132 years, and in April 1997, Smith's lung age improved to 102 years. Zito-Pry testified that she prescribed Smith two inhalers for her asthma, Maxair and Vanceril. Zito-Pry acknowledged that Maxair can cause heart irregularities and death, but maintained that those are the worst-case scenarios. Zito-Pry opined that based on Smith's last visit, January 5, 1998, Smith was basically in good health.

James Anthony, M.D., a local physician, testified on behalf of West as an expert in the area of asthma. Dr. Anthony reviewed Smith's medical records, observing that Smith had a moderate obstruction in her lungs. However, because Smith's medical records were deficient, Dr. Anthony could not opine with certainty the condition of Smith's health, but indicated that Smith was not in good health. Dr. Anthony explained that asthma is a serious disease, as 5,000 people die every year from asthma. He also testified regarding the side effects of Maxair, explaining that it is very rare that asthma patients die from Maxair.

Several witnesses testified regarding West's interactions with Smith. Gwen Reese, former manager of the apartments where Smith lived, testified that West lived with Smith a few months out of the year. She testified that West and Smith had a good mother-daughter relationship. She testified that her records indicated that Smith moved out of her apartment in June 1998. Reese stated that West informed her that she had...