Witter v. State, 27539

Citation112 Nev. 908, 921 P.2d 886
Case DateJuly 22, 1996
CourtSupreme Court of Nevada

[112 Nev. 909] Morgan D. Harris, Public Defender, Robert L. Miller, Deputy Public Defender, Philip Kohn, Deputy Public Defender, Clark County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Gary Guymon, Deputy District Attorney, Clark County, for Respondent.

[112 Nev. 913] OPINION


On June 28, 1995, a jury found William Witter guilty of murder with use of a deadly weapon, attempted sexual assault with use of a deadly weapon, and burglary. A penalty hearing was held on July 10, 1995, through July 13, 1995, after which, by way of special verdict, the jury sentenced Witter to death by lethal injection. The district court entered an amended judgment of conviction on August 2, 1995, based on the jury's sentence of death for the first-degree murder charge and imposing a twenty-year sentence for attempted murder (plus a twenty-year sentence enhancement for use of a deadly weapon), a twenty-year sentence for attempted sexual assault (plus a twenty-year sentence enhancement for use of a deadly weapon), and a ten-year sentence for burglary. All sentences are to run consecutively. Witter raises numerous issues on appeal. Although we conclude that the State has failed to prove the prevention of lawful arrest statutory aggravator beyond a reasonable doubt, we conclude that the remaining aggravators outweigh the mitigating evidence presented by Witter. Since Witter's remaining arguments are without merit, we affirm the district court's judgment of conviction and sentence of death.


On November 14, 1993, Kathryn Cox (Kathryn) was working as a retail clerk for the Park Avenue Gift Shop located in the Luxor Hotel in Las Vegas, Nevada. James Cox (James), Kathryn's husband, drove a taxicab in the Las Vegas area. At about 10:25 p.m., Kathryn called James and informed him that she was having trouble with her car and needed assistance. James told her that he

would be over to pick her up in about twenty-five to thirty minutes. Kathryn returned to her car, got in, locked her door, and began to read a book

About five to ten minutes later, the passenger side door opened, and William Witter got into the car. Witter demanded [112 Nev. 914] that Kathryn drive him out of the lot. When Kathryn informed him that she could not, Witter stabbed her just above her left breast. Witter pulled Kathryn closer to him and told her that he was going to kill her. After stabbing Kathryn several more times, Witter became quiet, unzipped his pants and ordered Kathryn to perform oral sex. Kathryn attempted to comply with his demands, but because she had a punctured lung, she kept passing out. Witter pulled Kathryn into a sitting position and told her, "You're probably already dead." Kathryn managed to open her door and attempted to run away, but was only able to get about ten or fifteen feet before Witter caught her. Witter forced Kathryn back into the car and forced her to kiss him. He then used his knife to cut away Kathryn's pants and began to fondle her vaginal area with his finger.

Kathryn observed her husband's cab pull up next to the driver's side of her car. Witter, not knowing that James was Kathryn's husband, held Kathryn close and stated, "Don't say anything. I'm going to tell him that you're having a bad cocaine trip." James opened the driver's side door of Kathryn's car and told Witter to get out. Witter got out of the car, walked over to James, and stabbed him numerous times. James fell backwards and into Kathryn, who had gotten out of the car, knocking her to the ground. Kathryn got up and ran for a bus stop. Once again, Witter caught Kathryn and carried her back to her car. After pulling the rest of Kathryn's clothes off, Witter attempted to stuff James' body underneath James' cab. Kathryn then heard hotel security approaching her vehicle.

A security officer in charge of patrolling the Excalibur Hotel's employee parking lot approached Kathryn's car and confronted Witter. After a short standoff, the security officer's backup arrived, and Witter was subdued. Paramedics arrived a short time later, and Kathryn was taken to the hospital where she eventually recovered from her injuries. James was already dead when the paramedics arrived.


Guilt Phase

Jury voir dire.

The scope of jury voir dire is within the sound discretion of the trial court and will be given considerable deference by this court. Cunningham v. State, 94 Nev. 128, 575 P.2d 936 (1978). The critical concern of jury voir dire is to discover whether a juror "will consider and decide the facts impartially and conscientiously apply the law as charged by the court." Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980).

[112 Nev. 915] 1. Question regarding impact of prior violent felony conviction.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court held that the prosecution could properly ask a potential juror whether the juror would automatically vote against the death penalty regardless of the facts of the case. Likewise, in Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the Court held that the defense was entitled to ask a potential juror whether the juror would automatically vote for death regardless of the facts of the case.

At trial, the district court denied Witter's request to ask potential jurors the following: "If there was evidence that Defendant had a prior felony conviction involving the use or threat of violence, would you still consider all three sentencing alternatives in your deliberations?" The district court found that the question violated EJDCR 7.70. 1 Witter contends that the question

merely attempts to death qualify the jury through the use of a Morgan type question, and if the question violates EJDCR 7.70, then EJDCR 7.70 violates due process concerns

Incorporated within Witter's question is the statutory aggravator listed in NRS 200.033(2) (prior felony conviction involving the use or threat of violence). If Witter were allowed to ask such a question, he would be able to read how a potential juror would vote during the penalty phase of the trial. This goes well beyond determining whether a potential juror would be able to apply the law to the facts of the case. We do not read either the Morgan or the Witherspoon decisions to allow for one side to gain such an unfair advantage. Moreover, the record shows that other questions asked during voir dire properly death qualified the jury. Since the question touches on an anticipated instruction of law during the penalty phase, and inquires into the verdict a juror would return based on hypothetical facts, we conclude that the district court properly found that the questions violated EJDCR 7.70. We also conclude that the restrictions of EJDCR 7.70 are consistent with the holdings in Morgan and Witherspoon and that the rule does not offend due process concerns. For these reasons, [112 Nev. 916] we conclude that the district court did not abuse its discretion when it precluded Witter's counsel from asking his proposed question of prospective jurors.

2. Newspaper article.

On one of the days during jury voir dire, a Las Vegas newspaper published a letter to the editor authored by Deputy Attorney General Victor H. Schulze, II. The article stated, among other things, that criminals should take responsibility for their crimes. The article did not mention, nor did it allude to, Witter's case. The district court refused to allow Witter to question the jury about the article. Witter now argues that the district court abused its discretion. We disagree.

We have recognized that, in an effort to protect the defendant's right to a fair trial, procedural safeguards should be employed by the trial judge to insure that potentially prejudicial news accounts of the proceedings do not prejudice the defendant. Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968). "The trial judge has large discretion in ruling on the issue of possible prejudice resulting from news articles concerning a defendant on trial and each case must turn on its special facts." Id. at 363, 441 P.2d at 93 (citation omitted).

While we recognize that the trial court failed to utilize any procedural protections to insure that the jury was not tainted by Schulze's article, we also recognize that the article did not specifically refer to Witter's case. We believe that the district court would have run a greater risk of contamination if it were to have allowed Witter's counsel to question the jurors about the article. Under the circumstances, we conclude that Witter was not prejudiced by the district court's refusal to allow his counsel to question the jury about Schulze's article.

Exclusion of witnesses.

At the beginning of trial, Witter made a motion to exclude all witnesses pursuant to NRS 50.155(1), 2 the witness exclusion rule, including those who would be testifying at a penalty hearing. The district court invoked the rule as to the guilt phase of the trial, but refused to invoke it with regard to the penalty phase. [112 Nev. 917] Witter now argues that the district court abused its discretion. We disagree.

NRS 47.020 states that the rules of evidence under NRS Title 4 are to govern the proceedings of the courts of the State of Nevada, but are not to apply to sentencing proceedings. Witter argues that NRS 47.020 should be disregarded in capital cases because

of the severity of the punishment. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (those charged with capital offenses are to be granted special considerations). We conclude that this argument is without merit. Had the legislature intended to...

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