Shortly after a jury sentenced Donte Johnson to death Thursday, the
victims' families accused District Judge Lee Gates of trying to protect
the quadruple murderer from capital punishment.
"Part way through the trial, I
thought maybe he'd adopted Donte Johnson," said David Mowen, father of
murder victim Matthew Mowen.
"It was just very clear he was
favoring Donte Johnson in every decision."
Johnson's defense attorney, Bret
Whipple, said criticisms of the judge were off-target. Gates, he said,
was being extra cautious in his rulings in an effort to ensure that the
seven-year-old criminal case will not be reversed again by a higher
"He's trying to protect the record
so that this doesn't continue to come back and cost the taxpayers money,"
"He was very fair to the taxpayers
of this state."
Johnson showed no reaction when he
was sentenced to death a second time for a lethal 1998 house robbery in
southeast Las Vegas.
Authorities said Johnson and two co-defendants
restrained four young men with duct tape, and Johnson then executed each
one with a shot to the head in a robbery that netted a couple hundred
dollars, a video game player, a VCR and a pager.
Killed in the slayings were Matthew
Mowen, 19; Tracey Gorringe, 20; Jeffrey Biddle, 19; and Peter Talamantez,
Johnson was sentenced to death in
2000 by a panel of three judges, but the sentence was negated by the
Nevada Supreme Court in 2002 after the U.S. Supreme Court ruled that
such sentences should be left to juries.
On Thursday, jurors took about four
hours to determine that Johnson should die for the crime.
Afterward, family members of
Johnson's victims criticized Gates for what they perceived as a string
of rulings that favored Johnson.
For example, Gates organized the
penalty hearing into two phases. Johnson's family was permitted to
testify in the first phase, but the victims' families were not.
That first phase ended when jurors
decided that an aggravating factor of the crime -- the perpetration of
multiple murders -- should be given more legal weight than the fact of
Johnson coming from a troubled background.
Families of the victims then were
permitted to testify to their loss in the second phase, which ended in
the death sentence returned Thursday.
Gates also excluded testimony about
Johnson's alleged involvement in another murder and a shooting even
though both crimes had been detailed in prior proceedings; he barred the
media on Wednesday from a brief hearing that probed the discovery of a
crack pipe in the jury box; and he limited the number of photos of
victims that loved ones could display during their victim impact
Johnson's family faced no
"Limiting the family members, that
probably hurt the worst," said Sandy Viau, mother of Gorringe.
Family members said they were
offended by Gates' gruff demeanor and his threats to arrest anyone who
displayed emotion during the proceedings.
For example, shortly before the
verdict was read Thursday morning, Gates announced to the courtroom: "I'm
not going to tolerate any demonstrations."
Referring to any violators, he told
an officer, "I want them handcuffed and under arrest."
The comments clearly were directed
at the family members of the victims because Johnson's family wasn't
even in the courtroom.
"I almost felt like I was
disrespected for walking in there," David Mowen said.
Gates could not be reached for
comment Thursday despite two messages left at his office.
A judge is prohibited by court
rules from commenting on a pending case, and Gates still has to sentence
Johnson formally in a week.
Fellow District Court Judge Michael
Cherry said Gates' decision to limit the number of photos displayed by
victims' family members eliminated Johnson's ability to raise that issue
"He tried the case tight," Cherry
"He took away a bunch of issues
from the defense ... and the case will probably not be reversed."
Authorities said Johnson was a
crack dealer who happened to be at a southeast Las Vegas home when one
of the victims, Mowen, bragged about making some money selling drugs and
pizzas while attending concerts by the rock band Phish.
Johnson then concocted the idea to
rob Mowen and his roommates with two co-defendants, Terrell Young and
Sikia Smith. Each victim was restrained with duct tape and shot, but
Johnson left behind a cigar pack with his fingerprint on it. Blood from
one of the victims also was found on Johnson's pants.
Witnesses said Johnson bragged of
committing the crimes, saying blood spurted out of the victims' heads
"like Niagara Falls."
He also mocked the victims'
grunting noises as they were being killed.
Prosecutors Robert Daskas and Dave
Stanton said the horrific nature of the crime made Johnson a prime
candidate for capital punishment.
"It is so horrific that death is
the only appropriate punishment," Daskas said.
"What these four kids must have
gone through, having been taped up and completely defenseless as their
home was ransacked. The thing that is so compelling to me is, consider
what the last victim must have gone through. Victim number four, who was
duct-taped and defenseless, knowing his three friends had been shot and
knowing what was about to happen. It's just unspeakable."
Authorities cast the slayings as
the culmination of a lifelong crime spree by Johnson.
At 16, he robbed a bank. He was
linked to a drug-related fatal shooting just weeks before the quadruple
murders. Police also tried to link him to another murder, but Gates
banned testimony about that slaying.
Defense attorneys told jurors
Johnson had a miserable childhood amid the gang culture of south-central
Los Angeles. They also said his parents were neglectful when he was a
Whipple said his client commented
only briefly on the death sentence.
"His comment was, 'Another day
closer,' " Whipple said.
"He's resigned himself to the fact
he does not have control over his future."
The verdict was praised by family
members of the victims.
"Six and a half years; 2,456 days,"
David Mowen said. "I feel good for the people of Southern Nevada."
"Finally we got justice," said
Juanita Aguilar, mother of Talamantez. "Now our boys can rest in peace."
Supreme Court of Nevada.
Donte JOHNSON, Appellant, v. The
STATE of Nevada, Respondent.
Decided: December 28, 2006
Before the Court En Banc. David M.
Schieck, Special Public Defender, and Alzora B. Jackson and Lee
Elizabeth McMahon, Deputy Special Public Defenders, Clark County, for
Appellant. George Chanos, Attorney General, Carson City; David J.
Roger, District Attorney, and Steven S. Owens, Chief Deputy District
Attorney, Clark County, for Respondent.
BEFORE The Court En Banc.
By the Court, HARDESTY, J.:
Appellant Donte Johnson was
convicted by a jury in 2000 of four counts of first-degree murder with
the use of a deadly weapon, among other crimes, and was sentenced to
death by a three-judge panel. On direct appeal, this court affirmed his
conviction, but vacated his death sentence and remanded for a new
penalty hearing because the three-judge sentencing procedure violated
the United States Supreme Court's holding in Ring v. Arizona.
Johnson's new penalty hearing began
in April 2005 before a jury and was bifurcated into separate phases: a
death-eligibility phase and a selection phase. The jury sentenced
Johnson to death. He appeals.
Among the issues on appeal is
whether the Confrontation Clause of the Sixth Amendment to the United
States Constitution and the Supreme Court's holding in Crawford v.
Washington apply to the selection phase of a bifurcated capital penalty
hearing. Applying our holding in Summers v. State, we conclude they do
not. Neither this issue nor the others Johnson raises warrant reversal.
Therefore, we affirm.
The facts underlying Johnson's
conviction are set forth in detail in this court's 2002 opinion. In
this opinion, we recount only those facts necessary to an understanding
of the issues presented.
On the night of August 13 or early
morning of August 14, 1998, Johnson (whose real name is John White),
along with two other men, entered a Las Vegas home intending to commit
robbery. While inside, Johnson murdered 20-year-olds Tracey Gorringe and
Matthew Mowen, 19-year-old Jeffery Biddle, and 17-year-old Peter
Talamantez by binding them with duct tape and shooting them
execution-style in the head. Stolen during the robbery were a VCR, a
video game, a personal beeper, a set of keys, and about $200 in cash.
Johnson was arrested four days
later and charged with four counts of first-degree murder with the use
of a deadly weapon, four counts of first-degree kidnapping, four counts
of robbery with the use of a deadly weapon, and one count of burglary
while in possession of a firearm. In 2000, a jury convicted him of all
charges but could not agree during his penalty hearing on what sentence
to impose. Another penalty hearing was later held before a three-judge
panel, which sentenced Johnson to death for each of the four murders.
This court affirmed Johnson's
conviction in 2002. But the fact that Johnson was sentenced to death
based on findings by a three-judge panel, instead of a jury, violated
the Supreme Court's holding in Ring. His death sentence was therefore
vacated and his case remanded to the district court for a new penalty
Johnson's new penalty hearing—his
third—began in April 2005 before a jury. The district court granted
Johnson's pretrial motion to bifurcate it into separate phases:
death-eligibility and selection.
I. Death-eligibility phase
Johnson's death-eligibility phase
lasted four days. Both parties made opening statements to the jury.
State's case in aggravation
The State presented evidence of a
single aggravating circumstance it pursued for each of the four
murders—that Johnson had been convicted of more than one murder in the
immediate proceeding pursuant to NRS 200.033(12).
Certified copies of the jury
verdict forms and transcripts from the original guilt phase were
admitted into evidence to establish the quadruple murder by Johnson. The
State also presented the testimony of four witnesses. Justin Perkins, a
friend of the victims, testified how he discovered their lifeless
Las Vegas Metropolitan Police
Department (LVMPD) Detective Thomas Thowsen, who had investigated the
four murders since they were first reported in August 1998, gave the
bulk of the testimony. He recounted for the jury the criminal
investigation and summarized evidence presented through various State
witnesses during the guilt phase. He also read portions of the original
trial testimony of these witnesses. LVMPD Forensic Crime Lab Manager
Berch Henry testified about the DNA analysis linking Johnson to the
murders, and Clark County Forensic Pathologist, Medical Examiner Dr.
Gary Telgenhoff, summarized the autopsy findings regarding each victim.
Each of the victims, according to
Dr. Telgenhoff, died from a single gunshot wound to the back of the head
at "very close" range—"about an inch or so away from skin." The wrists
and ankles of each victim were bound with duct tape, and none had any
"defensive wounds." Unlike the other victims, Talamantez also had a
laceration and abrasion on his nose "due to blunt force" consistent with
being "pistol whipped."
Johnson called only members of his
family to testify during this phase. They testified that Johnson's
mother, who by her own admission was "a little slow," abused alcohol and
illegal drugs, including crack cocaine and PCP, when Johnson was a
child. She even did so in his presence. She would sometimes leave
Johnson and his sisters alone or lock them in a closet. Johnson's father
abused his mother in front of Johnson and his sisters, once knocking her
teeth out and attempting to throw her out of a hotel window. Johnson was
At one point, Johnson, his two
sisters, and several of his cousins were forced to live in a one-room
shed for about a month. The shed had no running water, no carpet, and no
furniture. The children had to go to the bathroom in a bucket and sleep
on the floor with no covers. While living in the shed, the children
sometimes did not comb their hair or eat. Because they had no shower,
the children often had to go to school with body odor. They were also
hungry at times.
The police were eventually
contacted, and the children, including Johnson, were taken into foster
care. Johnson and his sisters were thereafter sent to live with their
grandmother, who was also caring for about ten other children. Johnson's
grandfather, according to Johnson's sister Johnnisha Zamora, did the
best he could, but she could not recall any time he ever spent with
Johnson's grandmother's house was
in the Compton area of Los Angeles, where, as Johnson's sister Johnnisha
explained, there was "a lot of violence." Johnson and his two sisters
were often chased and beaten up at school. His sister Eunisha White
testified that Johnson was short and that they were "picked on a lot by
different people for no reason."
Johnson's family testified about
the positive aspects of his personality and their love for him. A video
and several family pictures were admitted into evidence. Johnson's
eight-year-old son Allen White, who was in the third grade, read to the
jury a letter he wrote to his father which stated in part: "I will love
you in my heart, and you will love me in mine."
The State and the defense made
closing arguments, and the State argued in rebuttal. The jury was also
given instructions. The jury returned four special verdicts, finding the
single aggravating circumstance pursued by the State. Seven mitigating
circumstances were found: Johnson's youth at the time of the murders (he
was 19 years old); he was taken as a child from his mother due to her
neglect and placed in foster care; he had "no positive or meaningful
contact" with either parent; he had no positive male role models; he
grew up in violent neighborhoods; he witnessed many violent acts as a
child; and while a teenager he attended schools where violence was
The jury found the aggravating
circumstance outweighed the mitigating circumstances and that Johnson
was eligible for death.
II. Selection phase
The selection phase in Johnson's
case lasted five days. Both the State and the defense made new opening
statements to the jury.
State's case in support of a
Evidence regarding Johnson's prior
bad acts was admitted during this phase of the hearing.
A Los Angeles Police Department
lieutenant and a bank manager testified regarding Johnson's
participation in an armed bank robbery in 1993, when he was about 15
years old. An LVMPD officer testified that in 1998 Johnson was
implicated in the shooting of a man in Las Vegas. That man later died.
The district court admitted documents into evidence charging Johnson
with attempted murder and battery with the use of a deadly weapon
relating to the incident, as well as Johnson's guilty plea and judgment
of conviction for the battery charge.
A California Department of
Corrections Parole Division officer testified about Johnson's juvenile
record in California. The district court admitted Johnson's judgment of
conviction for the 1993 armed bank robbery into evidence, showing that
he was sentenced to four years in the California Youth Authority (CYA)
program. Johnson was paroled from the CYA program prior to the
expiration of his four-year sentence, but he later absconded from
LVMPD Officer Alexander Gonzalez
testified that he worked at the Clark County Detention Center in
February 2001 in the unit housing high-risk inmates. He described a
fight between Johnson and another inmate, Oscar Irias. With help from a
third inmate, Johnson threw Irias over a second-tier railing. Irias
LVMPD Detective James Buczek
participated in the quadruple murder investigation. He testified on
behalf of Nevada Highway Patrolman Sergeant Robert Honea (who had
testified in Johnson's 1998 trial). According to Detective Buczek,
Sergeant Honea conducted a traffic stop involving Johnson on August 17,
1998, three days after the murders. Johnson was the driver, but
identified himself as "Donte Fleck"; a passenger in the car was one of
his accomplices in the robbery and murders. During the stop, Johnson and
his passenger abandoned the car and fled on foot. A rifle loaded with 20
rounds of ammunition was located in the car, along with a clip of
In addition to the prior bad act
evidence, the State also admitted impact testimony from the families of
Johnson's four victims.
Juanita Aguilar, the mother of
Peter Talamantez, testified that Peter "was very smart, very caring. He
could have done just about anything he wanted to, but at 17, you don't
really think too much about what you want to be in the future because
you're still out having fun." Peter's murder had caused her severe
depression. She lamented: "There's not one day I don't think about my
Marie Biddle, the mother of Jeffery
Biddle, testified that Jeffery liked to play sports, he was a "wonderful
artist," and someday he either wanted to go into law enforcement or the
Air Force. She told the jury that Jeffery's murder had "been very
Sandy Viau, the mother of Tracey
Gorringe, testified that Tracey wanted to become an electrical engineer.
She added, "He was a great athlete. He played baseball, he snowboarded,
he skied, he water-skied, he roller-bladed, he rode motorcycles." She
stated that after his murder, "I don't have any goals now. You know,
it's one day at a time."
David Mowen, the father of Matthew
Mowen, testified that Matthew was his only son and wanted to study
medicine. "He was quite a young man. . . . He was one of those special
individuals that, for whatever reason, he had that ability to connect
with many, many different types of people." Of the impact of Matthew's
murder, his father testified: "It's the same pain, the same misery, the
same angriness that you have every single day. It doesn't get better."
Matthew's younger sister Jennifer also testified that she looked up to
her brother, who always gave her comfort and strength.
Defense's and State's rebuttal
The defense again called members of
Johnson's family, many of whom had already testified during the
death-eligibility phase. These family members, including his young son,
again testified about the positive aspects of Johnson's character and
their love for him.
Much testimony was presented
regarding Johnson's involvement with street gangs beginning when he was
about 13 or 14 years old. Johnson joined the Six Duece Brims gang,
affiliated with the larger Bloods gang, to stop the harassment of his
family. A professor of sociology at the University of California at
Berkeley testified about gangs and provided the jury with extensive
Several specialists who had worked
with Johnson also testified. Johnson's former parole agent for the CYA
testified that he supervised Johnson after his release from the juvenile
program and found Johnson to be "a small, quiet young man that seemed to
be pleasant and workable." A therapist who worked with Johnson in 2000
at the Clark County Detention Center testified that Johnson "was a
fairly consistent, decent person in that setting." And a psychologist
and clinical neuropsychologist profiled Johnson's personality and
summarized his life.
Two inmates testified that they saw
inmate Irias fall over the second-tier balcony. Johnson's alleged
accomplice in the incident, Reginald Johnson (no relation to the
appellant), testified that he alone, without Johnson's participation,
"assaulted [Irias] and helped him over the tier" because Irias was a
child molester. Reginald's former counsel confirmed that Reginald
admitted to her that he did it.
A retired California Department of
Corrections officer testified about the life that would be expected for
an inmate sentenced to a term of life without the possibility of parole
in Nevada's Ely State Prison. To rebut this evidence, the State called
the warden of the Southern Desert Correctional Facility.
Johnson made no statement in
The State made a closing argument,
and Johnson's two counsel made closing arguments. The State argued in
rebuttal. A new set of written instructions was given to the jury. The
jury returned four separate verdicts imposing a sentence of death for
each of the murders.
I. Do the Confrontation Clause
and Crawford v. Washington apply to the selection phase of a bifurcated
capital penalty hearing?
Johnson contends that the district
court committed reversible error by admitting copies of his inmate
disciplinary reports from the Clark County Detention Center during the
selection phase of his penalty hearing. Those reports, he asserts,
violated the Sixth Amendment's Confrontation Clause and Crawford because
they contained testimonial hearsay statements by witnesses who were not
shown to be unavailable and whom he had no opportunity to cross-examine.
He maintains that he is entitled to a new penalty hearing. We disagree.
We held in Summers that the right
to confrontation does not apply to evidence admitted in a capital
penalty hearing. Our holding in Summers applies to the entirety of a
capital penalty hearing, irrespective of whether the hearing is
bifurcated into distinct phases as Johnson's hearing was. Even assuming
that statements within the reports were testimonial under Crawford,
pursuant to our reasoning in Summers, Johnson did not enjoy a Sixth
Amendment right to confront their declarants. We conclude that the
admission of the reports was not error and reversal is not warranted on
II. Did the district court ?
Johnson contends that the district
court abused its discretion by admitting juvenile records during the
selection phase of his penalty hearing. He primarily relies upon the
Supreme Court's 2005 decision in Roper v. Simmons for support, arguing
that the admission of these records was "highly prejudicial." We
The Supreme Court in Roper held
that it was "cruel and unusual" to execute offenders who were under 18
years old when they committed their crimes. The Court reasoned that
juveniles by their very age and lack of development "cannot with
reliability be classified among the worst offenders." However, Roper did
not prohibit the admission of juvenile records during a death penalty
hearing. Because there is no question that Johnson was not a juvenile
when he committed the murders, his reliance upon Roper is misplaced.
Rather, "'[t]he decision to admit
particular evidence during the penalty phase is within the sound
discretion of the district court and will not be disturbed absent an
abuse of that discretion.'" Evidence of character is admissible during a
penalty hearing so long as it is relevant and the danger of unfair
prejudice does not substantially outweigh its probative value.
Here, the evidence of Johnson's
juvenile history primarily consisted of records and testimony regarding
his participation in and conviction for the armed bank robbery in
California in 1993 as a 15-year-old gang member and his subsequent
successes and failures in the CYA program for juvenile offenders. This
evidence also concerned his subsequent absconding from that program's
parole a few years later.
Johnson's juvenile record was
relevant to his character, revealing a pattern of escalating violent
criminal behavior that began with his participation in an armed bank
robbery and culminated in the quadruple murder he committed in this
case. Although this evidence was prejudicial, it was not unfairly so.
And it had significant probative value, showing not only his propensity
for violence and gang involvement but also his amenability to
rehabilitation—all relevant considerations in the determination of his
sentence. Because this evidence was admitted only during the selection
phase of his hearing, there are no concerns that it may have improperly
influenced the jury's weighing of aggravating and mitigating
circumstances. We conclude that the district court did not abuse its
discretion in admitting these records, and Johnson's contention in this
respect is without merit.
III. Did the district court
improperly allow the State to ask potential jurors "stake-out" questions
Johnson contends that the State
asked sixteen potential jurors improper "stake-out" questions that
caused them "to pledge themselves to a future course of action and
indoctrinate[d] them regarding potential issues before the evidence had
been presented." He maintains that these questions denied him an
impartial jury. We disagree.
The purpose 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.'"
And its scope rests within the sound discretion of the district court,
whose decision will be given considerable deference by this court. Here,
the State asked prospective jurors about their ability to carry out
their responsibilities in accordance with NRS 175.554. Johnson's counsel
unsuccessfully objected. We conclude that this line of questioning was
within the district court's discretion to permit, and Johnson's
contention is without merit.
IV. Did prosecutorial misconduct
Johnson contends that the
prosecutor committed misconduct during the penalty hearing that deprived
him of a fair hearing. Although we agree with Johnson that some remarks
by the prosecutor were improper, the prejudice resulting from them was
minimal, and they did not deprive him of a fair hearing.
"'[A] criminal conviction is not to
be lightly overturned on the basis of a prosecutor's comments standing
alone.'" Remarks by a prosecutor must be read in context and, if
improper, will constitute harmless error when there is overwhelming
evidence of guilt and this court can determine that no prejudice
resulted to the defendant. Prejudice follows from a prosecutor's remarks
when they have "so infected the proceedings with unfairness as to make
the results a denial of due process." Johnson raises several allegations
of prosecutorial misconduct during both phases of his penalty hearing.
We will discuss each allegation separately below.
A. Alleged misconduct during the death-eligibility phase
Johnson raises three allegations of
prosecutorial misconduct during the death-eligibility phase of the
First, he contends that the
following remarks by the prosecutor during closing arguments improperly
compared him to others and "attempted to inflame the jury and invoke
I would submit to you that if you
find that his upbringing outweighs this quadruple homicide, that is
disrespectful to members of South Central L.A. who didn't commit a
quadruple homicide. Common sense tells us that many, many, many people
in a similar upbringing haven't done what Donte Johnson has done. If you
were to find that his childhood is entitled to a greater weight of this
quadruple homicide, it's like telling people—
Johnson's counsel objected. We
conclude that the prosecutor's remarks contained improper elements but
did not result in prejudice.
This court held in Collier v. State
that it was improper to urge the jurors that if they wished to be
considered moral they had to give the community what it needed and give
the defendant what he deserved. Here, the prosecutor argued that if the
jurors found in Johnson's favor it would be "disrespectful to the
members of South Central L.A." How the public may react to their
verdict, however, has no place in the jurors' deliberative process. And
the jurors were so instructed in Jury Instruction 14: "A verdict may
never be influenced by prejudice or public opinion."
Pursuant to Collier and Jury
Instruction 14, we conclude that telling the jury that if it did not
reach a particular verdict it would disrespect a group of people
improperly injected public opinion into the deliberative process. Yet
any prejudice to Johnson was minimal, given the correct jury instruction
and the strength of the State's case against him.
Second, Johnson contends that the
prosecutor violated a pretrial order by the district court when he
referred to the victims as "boys" or "kids" during rebuttal argument. He
is correct that the prosecutor violated the order, but we conclude he
was not prejudiced.
The meaning of the terms "boys" or
"kids" is relative in our society, depending upon the context of its
use. And the terms do not inappropriately describe the victims in this
case. One of the four victims was 17 years old; one was 19 years old;
and two others were 20 years old. Referring to them as "young men" may
have been the most appropriate collective description. But we conclude
that the State's handful of references to them as "boys" or "kids" did
not prejudice Johnson.
Third, Johnson contends that the
prosecutor also improperly told the jury during rebuttal argument that
prior to the crimes Johnson had overheard victim Matthew Mowen saying
that he had made money touring with a rock band "selling pizzas and
drugs." Johnson objected, arguing that there was no evidence that Mowen
ever sold pizzas. Johnson asserts that the argument improperly portrayed
"the victims in a more positive light." We agree with Johnson that the
prosecutor's remark was improper, but we conclude that he cannot show
"'A prosecutor may not argue facts
or inferences not supported by the evidence.'" Here, the State concedes
that the evidence did not support its claim that Matthew once said that
he made money "selling pizzas and drugs," instead of just "drugs." Thus,
its reference to this as a fact was made in error. Nevertheless, the
prosecutor's misstatement was immaterial and did not give the State any
cognizable advantage. We conclude that Johnson suffered no prejudice.
Alleged misconduct during the
Johnson raises one claim of
prosecutorial misconduct during the selection phase of the penalty
hearing. He contends that the prosecutor made remarks during his opening
statement that referred to inadmissible evidence and were "highly
prejudicial," depriving him of a fair trial. We disagree.
This court has stated that a
prosecutor "has a duty to refrain from making statements in opening
arguments that cannot be proved at trial." But "[e]ven if the prosecutor
overstates in his opening statement what he is later able to prove at
trial, misconduct does not lie unless the prosecutor makes these
statements in bad faith."
Here, the prosecutor summarized the
evidence he planned to present during the selection phase of the
You will hear about a phone call
[Johnson] made, threatening to kill a young woman, a civilian.
You will hear about a letter he
wrote where he put a hit out on Scale. You heard that name in the trial,
Mr. Anderson, named Scale.
Johnson's counsel objected,
claiming that the State failed to give adequate notice that it would be
introducing evidence of the alleged threatening phone call or letter.
After reviewing the relevant documents, the district court found that
the State had provided inadequate notice to Johnson and the evidence was
inadmissible. Johnson does not contend that the remarks were made in bad
faith, nor is there evidence to support such a contention. But the
question of prejudice remains.
The prosecutor referred to serious
allegations against Johnson, which carried some degree of prejudice
because they suggested that Johnson would continue his violent criminal
conduct, even while in prison. Yet the remarks were isolated, consisting
of three sentences during a five-day selection phase. And there is no
indication that the prosecutor again referred to these particular bad
acts. Moreover, immediately after the State's opening statement the
district court admonished the jury that opening statements are "not
evidence and should not be given evidentiary value." Given that the
remarks were brief, were not made in bad faith, and occurred during a
lengthy selection phase and the district court admonished the jurors, we
conclude that any prejudice from these remarks was minimal.
V. Was Johnson's hearing unfair
Johnson contends that his penalty
hearing was rendered unfair because during the State's closing argument
in the death-eligibility phase, Nick Gorringe, brother of victim Tracey
Gorringe, was seated on a bench in the second row in the courtroom and
either passed out or fell over when a picture of the crime scene was
displayed. Johnson asserts that this incident is analogous to that in
Hollaway v. State. We disagree.
Unlike the facts of Hollaway, the
incident in this case did not concern a stun belt or any type of device
under the State's control causing an effect on Johnson. In fact, it did
not involve Johnson at all. Although Nick Gorringe was a victim's
brother, he was also a member of the public who had a right to observe
the courtroom proceedings. He was not called as a witness, and no
further incidents occurred. Moreover, the district court promptly
excused the jurors and admonished them. We conclude that Johnson's
reliance on Hollaway is misplaced and that any prejudice from this
incident was minimal.
VI. Mandatory review
We are required pursuant to NRS
177.055(2)(c)-(e) to review every death sentence and independently
consider three issues.
First, we consider whether the
evidence supports the finding of the aggravating circumstance. NRS
200.033(12) provides in part that first-degree murder is aggravated when
"[t]he defendant has, in the immediate proceeding, been convicted of
more than one offense of murder in the first or second degree." Here,
Johnson was convicted of four first-degree murders during the guilt
phase of his 2000 trial, and this court affirmed those convictions.
Overwhelming evidence supported this single aggravator found by the jury
for each of the murders.
We consider next whether Johnson's
death sentence was imposed under the influence of passion, prejudice, or
any arbitrary factor. Some unusual things happened during Johnson's
penalty hearing. For example, as discussed above, one of the victim's
brothers passed out in the courtroom when a photo of the crime scene was
displayed. Also, a juror found what appeared to be a crack pipe in the
jury box. None of these unusual episodes, however, appears to have
influenced the jury's verdict.
Finally, we determine whether
Johnson's death sentence was excessive considering both the crime and
the defendant. Johnson bound and shot four young men execution-style in
the head during a late-night robbery of a Las Vegas home. These young
men were dearly loved by their parents, siblings, and friends. In
exchange for his murderous deeds, Johnson obtained about $200 in cash, a
VCR, a PlayStation, and a beeper. He also bragged about his victims'
deaths, callously laughing as he told friends the following morning
about how blood squirted out of one victim's head and the sound the
victim made when shot.
Johnson was only 19 years old when
he committed these crimes, and he unquestionably had an impoverished
childhood. But the murders he committed were unprovoked, vicious, and
utterly senseless. We conclude that a sentence of death was not
Johnson's penalty hearing was not
without error, but it was fair. Applying our holding in Summers, we
conclude that neither the Confrontation Clause nor Crawford applies to
evidence admitted during the selection phase of a bifurcated penalty
hearing. We conclude that Johnson's other issues do not establish
We affirm Johnson's death sentence.
BECKER, GIBBONS, and PARRAGUIRRE,