November 25, 1998
Appeal from a judgment of conviction, pursuant to a
jury verdict, of two counts of first-degree murder, two counts of first-degree
kidnapping, one count of grand larceny, one count of fraudulent use of a
credit card, and two counts of ex-felon in possession of a firearm and
from two sentences of death. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Michael R. Specchio, Public Defender, and John Reese
Petty, Deputy Public Defender, Washoe County, for .
Frankie Sue Del Papa, Attorney General, Carson City;
Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Chief
Appellate Deputy District Attorney, Washoe County, for .
O P I N I O N
At trial, the state presented evidence that appellant
David Stephen Middleton committed murder on two separate occasions, in
each case abducting a woman from her home, holding her captive in a
leased storage unit, killing her, and then dumping her body. Middleton
appeals, contending among other things that there was insufficient
evidence to convict him and that trial on the counts relating to each
victim should have been severed. We conclude that Middleton?s
contentions lack merit and therefore affirm.
The discovery of Katherine Powell's body and
At around 9:30 p.m. on the night of February 11,
1995, a woman's body was found in a trash dumpster at a Reno apartment
complex. The body was in a sleeping bag and covered by plastic garbage
bags. A large yellow plastic bag covered the sleeping bag. The body was
taken to the coroner's office. From its fingerprints the body was later
identified as that of Katherine Powell.
Dr. Roger Ritzlin performed the autopsy on Powell's
body. Her body was loosely bound by rope and, aside from a black tank
top and blue socks, was naked. It exhibited bruises, particularly on the
elbows and knees; most of the bruises were incurred prior to death.
Powell had likely been dead for at least two days. There were blue
fibers on her body. A nontoxic amount of lithium was in her blood. (Powell
had been prescribed lithium for a bipolar disorder.)
Microscopic analysis of sections of the left
ventricle of her heart exhibited some fibrosis and acute cell death; the
latter occurred a few days before death. Ritzlin found no petechiae (small
hemorrhages) or any fecal staining. At trial, he testified that after
death by suffocation, petechiae are usually seen and fecal staining is
often seen. Ritzlin could not determine the cause of death, but
suffocation or cardiac arrhythmia were possible causes. Bite marks were
later found on Powell's body, and a semen stain was found on her right
At the time of her death, Powell was forty-five years
old, divorced, and living alone in Reno. She had a Ph.D. in psychology
and taught third grade at Sun Valley Elementary School. She was last
heard from or seen alive on the evening of Friday, February 3, 1995.
Powell had a ski trip with a friend planned for the next morning, but
she failed to show.
Various friends attempted to contact her over the
weekend, and she failed to appear at work on Monday, February 6,
although she was known to be extremely reliable. A school custodian went
to her home and knocked, but got no response; he noticed an attempted
service tag from TCI Cable on the door, dated Saturday, February 4.
Later on Monday, two other school employees went to Powell?s home,
looked through a window and saw what they thought could be a foot on the
unmade bed, and called 911. Police arrived and entered the home. The bed
was rumpled, but they saw nothing that made them suspicious at that
After Powell?s body was found on February 11, 1995,
police learned the following information. Two of Powell's neighbors,
Angela Green and Charles Corning, noticed a pickup truck parked in front
of Powell?s home early in the morning on Saturday, February 4. Green
noticed that the pickup was loaded up with "home items" and had out-of-state
plates; when she was later shown a photograph of a pickup owned by
Middleton, she said "that could well be the truck." Corning said that
the pickup was red, and when shown the photo of Middleton's pickup, he
said "that looks like the truck." A third neighbor noticed on Wednesday,
February 1, that a TCI Cable truck was parked in front of Powell's home.
This neighbor later identified the occupants as Middleton and Evonne
Haley. (Haley lived with Middleton.)
Two of Powell's friends, Gerald Brown and Candace
Kelly, returned from a trip on Sunday, February 5, and went to pick up
Kelly?s dog, which Powell had been keeping for them. Powell was not home,
but they had a key, entered, and got the dog. The next day, Brown heard
that Powell had not gone to work so he went back to her home and noticed
various items were missing, including a phone, a camera, a FAX machine,
a laptop computer, and a laser printer. In the kitchen he found a couple
of condoms and a wad of duct tape.
On Sunday, February 5, a person telephoned the Good
Guys store in Reno and ordered a $1,900 piece of stereo equipment, using
Powell's credit card. Gary Cable, the employee who took the call, said
that the caller's voice was husky and he could not tell if the caller
was a man or woman. Mark Decker, Cable?s manager, approved the
transaction. Decker received a telephone call regarding the purchase on
Monday morning. He believed the caller was male.
The caller said he would send a courier to pick up
the equipment. On Monday afternoon, a woman arrived at the store with a
red handtruck and picked up the equipment. Store employees later
identified the woman as Haley. One employee's description of the truck
she drove led police to Middleton?s pickup, an early 1970s, red
International Harvester with Colorado license plates.
Reno police detective Steven Reed determined that
Middleton was the TCI Cable technician who had made a service call at
Powell?s home on January 28, 1995. The detective took Powell's neighbor,
Corning, to Middleton?s workplace to view Middleton's pickup. Corning
believed that the pickup was likely the same one he had seen at Powell's.
Detective David Jenkins determined that the brand of
yellow plastic bag covering the sleeping bag which held Powell's body
was sold at only two hardware stores in Reno. Only one store, Commercial
Hardware in downtown Reno, had recently sold the yellow bags. They were
sold on Wednesday, February 8, along with a box of 33-gallon garbage
On February 23, 1995, Detective Jenkins interviewed
Middleton, who was not in custody. Middleton admitted that he had made a
service call to Powell?s home on January 28, 1995, and that he owned a
red, 1972 International Harvester pickup. However, he denied knowing
anything about the purchase of stereo equipment at the Good Guys store
or about Powell's credit card. When asked about the purchase of plastic
bags at Commercial Hardware, Middleton initially said he did not know
where the store was, but then said he had shopped there five or six
times but not recently.
When asked if he had shopped there on February 8, he
was equivocal--saying that if he was on video, then he had--and he was
unsure whether he had bought any garbage bags. Although Jenkins had said
nothing about Powell?s death, Middleton said that it seemed like Jenkins
was trying to tie Middleton to her murder. Jenkins asked if Middleton
had a storage unit, and Middleton said no. The interview ended when
Middleton said that he wanted to leave.
On March 4, 1995, an anonymous caller informed police
that Middleton and Haley had a storage unit. The next day, police
searched the unit pursuant to a warrant. They found the stereo equipment
purchased from the Good Guys and a box of yellow plastic bags and a box
of garbage bags, both with Commercial Hardware price tags. One of three
yellow bags was missing from the first box, as were some garbage bags
from the second. Also in the unit were Powell's house and car keys,
camera, computer, printer, and other personal property.
A refrigerator was lying on its back on the floor of
the unit. In it were blue fibers similar to fibers found on Powell?s
body. The refrigerator was modified: its shelves were removed, the floor
of its freezer compartment was cut and folded down to make one space,
and two air holes were drilled in it. Police also found a switchblade
knife, a stun gun, a foam ball with apparent teeth marks, and rope
similar to that used to bind Powell's body.
Other evidence collected included: orange-handled
tension clamps; hair and fiber from one of the clamps; black canvas
belts with velcro; black wire ties; handcuffs; condoms; partial rolls of
duct tape; a large speaker box with a space behind the speaker about 14
inches deep, 30 inches wide, and 36 inches high; hairs and fibers from
the speaker box; several blankets; and chains. Pursuant to a seizure
order, police obtained a mold of Middleton's teeth to compare to the
bite marks found on Powell's body. Dr. Raymond Rawson, a professor in
dentistry, concluded that the bite mark on Powell's left breast was
inflicted while she was still alive, that it was a hard and painful bite
causing bleeding below the skin, and that Middleton inflicted it.
The discovery of Thelma Davila?s remains and
On April 9, 1995, about two months after the
discovery of Powell's body, a man walking with his dog in a secluded
area near Verdi found a human skull and other skeletal remains and
notified police. From August through October 1994, another Verdi
resident had smelled a foul odor in the area where the remains were
In late September or early October 1994, he saw
remnants of a sleeping bag in that area. Donald Means of the Washoe
County Sheriff's Office performed forensic investigation of the remains.
He noted "a lot of animal activity" and "trash bags, bones, and bone
fragments strewn several hundred yards." A matted hairpiece was found
with rope in it; the rope was the same diameter as the rope found with
Powell's body. Means had also investigated Powell's death, and finding
two "body dumps" "with trash bags and rope" in such a short period of
time was unusual in Means's experience.
A dental bridge in the skull led to the
identification of the remains as those of Thelma Davila. Dr. Frederick
Laubscher performed a "medical examination" of the remains. (An "autopsy"
was not possible because of the lack of tissue.) He examined the remains
for evidence of the cause of death, but the skull was intact, and none
of the other bones exhibited evidence of a gunshot or knife wound,
crushing injury, or traumatic injury of any sort. Because the remains
were so incomplete, Laubscher was unable to determine a cause of death.
He could not rule out suffocation or most other possible causes of death.
The police learned that Davila had disappeared in
August 1994. At that time she was forty-two years old and shared a one-bedroom
apartment in Sparks with her sister, Dora Valverde. She had worked her
usual evening shift at the Hickory Pit restaurant in Circus Circus in
Reno on Sunday, August 7, 1994. She failed to show for work the next day
even though she had not missed a single day in more than six years of
employment at the restaurant. She also failed to show up for a dental
appointment that day.
Valverde last saw her sister around 8:00 a.m. on
Monday, August 8, 1994. When Valverde left for work, Davila was sleeping
on the couch in the living room. When Valverde returned to the apartment
that evening, the door was not locked, and a plant by the couch had been
knocked onto the floor. She and one of Davila's friends later identified
a blanket, a black lacy top, and a red hair tie found in Middleton's
storage unit as Davila's. On Wednesday, August 10, 1994, Valverde
reported her sister missing.
Davila occasionally went with a friend to Cheers, a
Latin dance club in downtown Reno. The two went to Cheers on the night
of Saturday, August 6, 1994. The friend testified that Davila had a
preference for black men. (Middleton is African-American.) Another
friend testified that when he visited Davila and Valverde, they always
looked out their window at him before opening the door.
The former owner of Cheers saw Middleton one night
using the pay phone at Cheers sometime in the latter part of 1994. Two
employees of the Hickory Pit restaurant remembered seeing Haley in the
restaurant. One saw her there two or three times in June and July of
1994, usually with a black man. The other saw her there just a day or
two before Davila disappeared. A third employee saw Davila and Haley
together in 1994 on three occasions: at the restaurant, at a grocery
store, and at a medical complex.
A Citifare bus driver knew Davila because she was a
regular passenger on his route for many years. The driver saw Davila on
the afternoon of Friday, August 5, 1994, at the Sparks bus station.
Davila was quite dressed up and told him her friends were picking her up
to go out to dinner. A white or beige pickup truck pulled up. In the
truck were a woman with curly, reddish blond hair and a black man. The
man stepped out, Davila jumped into the truck and sat in the middle, and
the truck drove off.
TCI cable had been installed in the sisters'
apartment in June 1993 and serviced in July 1994, but Middleton
performed neither service. Middleton did not work on Monday, August 8,
1994, the day Davila disappeared. Around 6:45 a.m. that same day, a
neighbor of Davila and Valverde saw Middleton walk partway up the stairs
leading to Davila?s apartment and then come back down.
Other evidence presented at trial
Middleton first leased a storage unit in Sparks on
June 30, 1994, under the name of Hal Data Research. This unit was five
feet by ten feet in size. On the afternoon of August 8, 1994--the day
that Davila was last seen alive--Middleton leased a unit which was ten
feet by ten feet and moved out of the smaller unit. Tenants entered the
storage unit facility using a computer code at the front gate, and
records were kept of the entries.
On Friday, February 3, 1995--the last day that Powell
was seen alive--Middleton entered the facility at 2:13 a.m. and 8:06
p.m. For Saturday, February 4, the log showed entries by Middleton at
12:37 a.m., 5:47 a.m., 6:49 a.m., 8:45 a.m., 11:53 a.m., and 5:38 p.m.
On Sunday, February 5, he entered the facility at 6:19 a.m., 11:09 a.m.,
and 3:30 p.m., and on Monday, February 6, he entered at 9:26 a.m. and
3:15 p.m. There were no entries for Tuesday, February 7; one entry at
6:49 p.m. on Wednesday, February 8; no entries on Thursday, February 9;
and one entry on Friday, February 10, at 7:45 p.m. The log showed one
entry on Saturday, February 11, at 7:26 p.m. Powell's body was found
around 9:30 p.m. that same night. Middleton entered the facility again
at 12:53 a.m. on Sunday, February 12, 1995.
On June 7, 1995, at Middleton's request Detective
Jenkins again interviewed Middleton. Jenkins asked questions regarding
Davila. Middleton said he had been to Davila?s apartment complex but did
not know her. He denied that Davila's blanket could be in his storage
unit. He said that he had moved from one storage unit to another on
August 8, 1994. Middleton told Jenkins that Haley had never been to the
storage unit and did not know about it. Jenkins spoke with Middleton
again on June 20, 1995. Middleton continued to deny knowing Davila or
having her blanket.
Forensic analysis showed that fibers found in the
refrigerator in Middleton's storage unit were indistinguishable from
those found on Powell's body: both were cotton and blue-green in color.
Two human head hairs found in the refrigerator and one found on a black
restraint belt could have come from Powell. Rope found in Middleton?s
storage unit, the rope found around Powell's body, and the rope found
with Davila?s remains were all white, nylon, woven twelve-strand, and
one-quarter inch in diameter. Analysis revealed no difference between
the ropes; however, the rope was a common type. Five hairs found on a
roll of duct tape and two hairs found on two blankets in the storage
unit were consistent with those obtained from Davila?s hairbrush. An
expert in knot analysis testified that the ropes found with the remains
of both Powell and Davila contained "SS granny knots," but the granny
knot is a very common knot.
DNA analysis was also performed on various pieces of
evidence. Cellular material was obtained from the foam ball found in the
storage unit. DNA analysis of that material showed that it matched
Powell's DNA; the match was rarer than one in 100 million people. The
roots of various hairs found in the storage unit were tested. The DNA
from two hairs found in a clamp and one hair on a blanket matched
Powell's DNA; the match was about one in every 780,000 Caucasians. The
DNA from one hair found on duct tape and one hair from another blanket
matched Davila's DNA; the match was one in 690,000 among Hispanics. DNA
obtained from a semen stain on the right thigh of Powell was consistent
with Middleton's DNA and that of about one of every 100 African-Americans.
At trial the state offered expert testimony that
based on the volume of the refrigerator and the size of the two holes
drilled in it, a person weighing 145 pounds enclosed in the refrigerator
would have died from oxygen deprivation in about three and a half hours.
Dr. Vincent Di Maio, a chief medical examiner in
Texas, testified for the state to the following. Despite mild
perivascular fibrosis, Powell's heart was healthy and normal. Although a
person should have an EKG when she first begins taking lithium, studies
in the 1990s showed that long-term users of lithium did not die from
heart disease at a rate greater than the general population. The
circumstances of Powell's disappearance and her body when found
indicated that her death was a homicide. The lack of pathological
findings indicated that she probably died of asphyxiation. The bruises
on her elbows and knees were consistent with struggles to free herself
from a confined space, such as the refrigerator. Petechiae were found in
only about thirteen percent of suffocation homicides handled by Di
Maio's office. The circumstances surrounding Davila?s disappearance and
skeletal remains also indicated that her death was a homicide, but the
cause of death could not be determined.
The defense presented the testimony of two physicians.
Dr. Robert Bucklin, a deputy medical examiner for Clark County, stated
that Powell suffered from heart disease, but he did not know if it
caused her death. He did not believe that she died from asphyxiation.
Dr. Jerry Howle, a psychiatrist, testified that taking lithium could
cause cardiac arrhythmia and carried some risk of sudden death, but he
did not know what effect it had on Powell.
Outside the presence of the jury, the district court
asked Middleton if he wished to testify. Middleton said that he wanted
to "testify on the Davila case part of it. But I guess I can?t because
the cases are joined. I cannot testify on one without looking bad on the
other one. So I guess I can't testify."
The jury found Middleton guilty of two counts of
first-degree murder, two counts of first-degree kidnapping, one count of
grand larceny, and one count of fraudulent use of a credit card. At a
bench trial the next month, the district court found him guilty of two
counts of ex-felon in possession of a firearm.
The penalty phase
At the penalty hearing, outside the presence of the
jury, the defense moved to preclude evidence that Middleton had been
charged with sexual assault and kidnapping in Florida in 1990. The
Florida case resulted in conviction of one count of aggravated battery
and one count of false imprisonment. The prosecutor, Thomas Viloria,
proposed to call as a witness the victim of the Florida crimes, who was
sixteen years old at the time of the crimes. The district court ruled
that the conviction was admissible, but stated, "I'm not going to allow
testimony concerning sexual assault in the state?s case in chief.
However, I warn counsel that any explanation of this conviction . . . is
going to open up the door to Mr. Viloria's ability to explain what he
perceives as the facts in this case."
Defense counsel also voiced concern that members of
Powell's family testifying as victims might call for the death penalty.
Viloria stated that he would instruct the victims not to ask for the
death penalty, but argued that they could ask for "the maximum sentence."
He further argued that if defense witnesses asked for a penalty less
than death, then in rebuttal the state could recall victims to ask for
death. The district court asked Viloria if he had authority for that.
This prompted a lengthy tirade by Viloria in which he stated, among
other things, that "the rights of the defendant outside the Constitution
have wallowed [sic] the Constitution, making it meaningless. I would
submit that it is just but that, an old rag that needs to be modified.
It has no meaning." The district court eventually ruled that victims
could request neither the death penalty nor "the maximum penalty."
Middleton?s stepmother testified for him. Toward the
end of direct examination, defense counsel asked her, "And did you know
he got in trouble in Miami?" She answered, "Yes." On cross-examination,
Viloria asked, "You are aware, ma?am, that he took a sixteen-year-old
woman to a remote area, kept her in his car, and engaged in sexual
activity with her?" Defense counsel objected and moved for a mistrial,
and the district court excused the jury. The court asked Viloria, "Why
now, Mr. Viloria? . . . Why now without my advance permission?" Viloria
argued that the defense had opened the door to his question, but the
court rejected that argument. The court even said, "I'm questioning your
motives here," and ruled, "You are precluded from bringing up any
evidence concerning any criminal activity in the rest of your case. You
are precluded from asking any questions, any further questions of this
witness, and you'll pack this to the Ninth Circuit on your back." When
the jurors returned, the court admonished them that Middleton?s prior
conviction did not relate to sexual activity and asked if anyone would
have trouble disregarding Viloria?s question. No jurors indicated that
The defense also called Susan McCurdy, Executive
Secretary of the Parole and Pardons Board. Counsel asked if Middleton
were sentenced to life imprisonment without the possibility of parole
under NRS 213.085, "could that sentence ever be commuted to parole?" She
said, "No, it cannot." Viloria then cross-examined.
Q Ma'am, that assumes that the legislature
doesn't decide to change the law the next session or the next
session after that or the next session after that, doesn't it?
A That is correct.
Q They are always free to change the law as
they do every other year?
A That is correct.
Q So there will be no guarantee that life
without won't be subjected to legislative change down the road?
A There is no guarantee.
The defense made no objection.
For Davila's murder, the jury found four aggravators:
Middleton had two previous convictions for felonies involving the use or
threat of violence, the murder was committed in the commission of or
attempt to commit first-degree kidnapping, and Middleton was convicted
of more than one murder in this proceeding. The jury found the same four
aggravating circumstances in Powell's murder and a fifth: the murder
involved torture and/or depravity of mind. For both murders, the jury
found no mitigating circumstances sufficient to outweigh the aggravators
and sentenced Middleton to death.
For the two counts of first-degree kidnapping, one
count of grand larceny, one count of fraudulent use of a credit card,
and two counts of ex-felon in possession of a firearm, the district
court sentenced Middleton to the following consecutive prison terms:
life without possibility of parole, life without possibility of parole,
ten years, ten years, six years, and six years.
There was sufficient evidence that appellant
committed the murders, kidnappings, and fraudulent use of a credit card
In reviewing the evidence supporting a jury's verdict,
this court must determine whether the jury, acting reasonably, could
have been convinced of the defendant's guilt by the competent evidence
beyond a reasonable doubt. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d
309, 313 (1980). Where conflicting testimony is presented, the jury
determines what weight and credibility to give it. Bolden v. State, 97
Nev. 71, 624 P.2d 20 (1981). The relevant inquiry for this court is "'whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'" Koza v.
State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
Evidence of criminal agency in the deaths
Middleton contends first that the state failed to
prove that the victims' deaths resulted from criminal agency, a
necessary element to establish the corpus delicti of murder. He points
to the evidence that Powell suffered from heart disease; that she was
taking lithium, which is associated with cardiac problems; and that her
cause of death could not be determined. Likewise, he stresses that
Davila's cause of death was not determined. Middleton cites Frutiger v.
State, 111 Nev. 1385, 907 P.2d 158 (1995), where this court concluded
that there was insufficient evidence that an alleged victim?s death was
caused by the criminal agency of another. Middleton does not, however,
discuss the circumstances surrounding the disappearance of the victims
and discovery of their remains or the evidence found in his storage unit.
In deciding a sheriff?s appeal in this case in 1996,
we considered this same argument in regard to the sufficiency of the
evidence to bind Middleton over for trial. Sheriff v. Middleton, 112 Nev.
956, 921 P.2d 282 (1996). We held: "Although medical evidence as to the
cause of death is often critical in establishing that a death occurred
by criminal agency, there is no requirement that there be evidence of a
specific cause of death." Id. at 962, 921 P.2d at 286. We
reversed the district court?s order granting Middleton's pretrial
petition for a writ of habeas corpus. The district court had limited its
to evidence of the bare conditions of the
bodies themselves, and found that the bodies alone did not
reveal death by criminal agency because they did not reveal
anything, and therefore the state had not met its burden. This
conclusion is not mandated by our decision in Frutiger .
The court must consider and weigh all the evidence offered which
bears on the question of death by criminal agency. In this case,
the circumstances of the disappearances of the women, the
discoveries of their bodies in remote locations, tied with rope,
wrapped in garbage bags, bitten severely, clearly creates a
reasonable inference of their deaths by criminal agency.
Furthermore, unlike in Frutiger , where the weight of the
available medical evidence indicated a likelihood of death by
natural causes, in this case there is no evidence to rebut the
inference of death by criminal agency. The district court erred
in not considering at least the circumstances of the
disappearances of the women and the discoveries of their bodies.
There is ample evidence by those circumstances alone tending to
prove that Powell and Davila died by a criminal agency.
Id. at 964, 921 P.2d at 287.
This analysis is still dispositive, even allowing for
the requirement that at trial criminal agency had to be proved beyond a
reasonable doubt. Id. The evidence showed that Powell?s heart was
basically healthy and that the amount of lithium in her system was not
life threatening. There was no evidence that Davila suffered from ill
health. Thus, unlike Frutiger , the record does not show a
likelihood of death by natural causes. Furthermore, in deciding the
sheriff?s appeal, we did not discuss the evidence which indicated that
Middleton took Powell and Davila to his storage unit, where he kept them
captive. This evidence further supports the jury's finding that the
deaths resulted from criminal agency.
Evidence that the victims were abducted alive
"Kidnapping requires the willful seizing, confining,
or carrying away of a live person." Ducksworth v. State, 113 Nev. 780,
793, 942 P.2d 157, 166 (1997), reh'g denied , 114 Nev. __, __
P.2d __ (Adv. Op. No. 106, September 24, 1998). Middleton claims that
there was no evidence as to where or how the victims died and therefore
that the state failed to prove that the victims were seized alive and
against their will. For example, in his brief to this court Middleton
says: "The reasonable inference is that Powell died in her house (of
unknown causes), her bare body was on the bed and that later her body
was taken from the house in a sleeping bag and placed in the
refrigerator." The jury obviously did not consider this inference
reasonable, nor do we.
Most of the bruising on Powell?s knees and elbows
occurred prior to her death and is evidence that she was alive and
struggling while trapped in the refrigerator. The foam ball found in the
storage unit had tooth marks and Powell's DNA, indicating that it was
used to gag her while she was still alive. The bite mark on Powell?s
breast was also inflicted while she was still alive, supporting the
theory that Middleton held Powell captive and then killed her.
As to Davila's kidnapping, no direct evidence shows
that Davila was alive and held against her will. Davila's hair, apparel,
and blanket were found in Middleton's storage unit, but this evidence
alone does not indicate whether Davila was alive at that time.
Nevertheless, the circumstantial evidence allows no other reasonable
conclusion: Middleton moved to the larger storage unit the day that
Davila disappeared, and the items found in the unit--the refrigerator
with air holes, the gag, and restraint devices--show that he was using
it to hold live victims; the condition of Powell's body also shows this.
1 The jury has the right to make logical inferences which
flow from the evidence. Hern v. State, 97 Nev. 529, 531, 635 P.2d 278,
279 (1981). The jury, acting reasonably, could have been convinced
beyond a reasonable doubt that Middleton kidnapped Davila.
Evidence of appellant?s fraudulent use of a credit
Middleton unsuccessfully moved the district court to
instruct the jury to acquit him of both counts of kidnapping, the count
of murdering Davila, and the count of fraudulent use of a credit card.
He argues that the court abused its discretion in denying the motion.
The granting of an advisory instruction to acquit
rests within the sound discretion of the district court. NRS 175.381(1);
Milton v. State, 111 Nev. 1487, 1493, 908 P.2d 684, 688 (1995). As
discussed above, there was sufficient evidence to convict Middleton of
the murder and kidnapping counts, so the district court did not abuse
its discretion in denying the motion in regard to the kidnappings and
Davila?s murder. 2
The state charged Middleton with fraudulent use of
Powell's credit card at the Good Guys store. Because Haley picked up the
stereo equipment from Good Guys and the state failed to allege that
Middleton aided and abetted Haley, 3 Middleton maintains that
there was insufficient evidence to convict him of this crime.
We conclude that there was sufficient evidence that
Middleton personally committed fraudulent use of the credit card. Mark
Decker, a manager at the Good Guys store, took a telephone call on the
morning of February 6, 1995, in regard to the purchase on Powell's
credit card. Decker believed that the caller was male. The caller told
Decker that he would send a courier to pick up the equipment. Combined
with Middleton's connection to Haley and the presence of the equipment
in his storage unit, this was sufficient evidence for the jury to find
that Middleton made the call and directly participated in fraudulent use
of the credit card.
The district court did not err in refusing to
sever the counts relating to each victim from the counts relating to the
Before trial, Middleton moved to sever the counts
relating to Davila from the counts relating to Powell. The district
court denied the motion (but severed the two counts charging Middleton
with being an ex-felon in possession of a firearm). Middleton says that
joinder of the charges was improper because the offenses were
unconnected and the joinder prejudiced him.
Middleton cites Drew v. United States, 331 F.2d 85,
88 (D.C. Cir. 1964), for the proposition that joinder may prejudice a
the jury may cumulate the evidence of the
various crimes charged and find guilt when, if considered
separately, it would not so find. A less tangible, but perhaps
equally persuasive, element of prejudice may reside in a latent
feeling of hostility engendered by the charging of several
crimes as distinct from only one.
Because the jury convicted him of the murders and
kidnappings despite the alleged lack of sufficient evidence, Middleton
maintains that his conviction of the four crimes shows that joinder
engendered a feeling of hostility toward him among the jurors and led
them to cumulate the evidence of the various crimes and find guilt when
they otherwise might not have.
NRS 173.115 provides:
Two or more offenses may be charged in the
same indictment or information in a separate count for each
offense if the offenses charged, whether felonies or
misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions
connected together or constituting parts of a common scheme or
Here, joinder was proper under NRS 173.115(2) because
the acts charged constituted parts of a common scheme or plan on
Middleton?s part to meet women, abduct and hold them captive, abuse and
kill them, and then dispose of their bodies. The similarities between
the crimes against Davila and Powell include: both victims were
unmarried females of similar age (one was forty-two and the other forty-five);
both were alone at home when they disappeared; both homes had been
serviced by Middleton's employer, TCI Cable; Middleton had met both
victims before their disappearance (the evidence that Middleton met
Davila is not conclusive, but strong); neither victim's home showed
evidence of a forced entry; Middleton went to his storage unit on the
day that each victim disappeared; his storage unit yielded DNA evidence
from each of the victims and property belonging to each; and the remains
of each victim were found dumped in remote or concealed locations,
wrapped in plastic garbage bags and bound with rope similar to rope
found in Middleton?s storage unit.
NRS 174.165(1) provides:
If it appears that a defendant or the State
of Nevada is prejudiced by a joinder of offenses or of
defendants in an indictment or information, or by such joinder
for trial together, the court may order an election or separate
trials of counts, grant a severance of defendants or provide
whatever other relief justice requires.
Thus, even if joinder is permissible under NRS
173.115, the trial court should sever the offenses if the joinder is
unfairly prejudicial, i.e., required by justice. Cf. Amen v.
State, 106 Nev. 749, 755-56, 801 P.2d 1354, 1358-59 (1990) (although
joinder of charges against multiple defendants was proper under NRS
173.135, court considered whether joinder prejudiced defendants and
required severance under NRS 174.165); Drew , 331 F.2d at 87 ("[E]ven
though joinder is permissible under Rule 8(a), if the defendant makes a
timely motion under Rule 14[ 4 ] and shows prejudice, the
court should either order an election by the Government or grant
The decision to sever is left to the discretion of
the trial court, and an appellant has the "heavy burden" of showing that
the court abused its discretion. Amen , 106 Nev. at 756, 801 P.2d
at 1359. To establish that joinder was prejudicial "requires more than a
mere showing that severance might have made acquittal more likely."
United States v. Wilson, 715 F.2d 1164, 1171 (7th Cir. 1983). Misjoinder
requires reversal only if the error has a substantial and injurious
effect on the jury?s verdict. Mitchell v. State, 105 Nev. 735, 739, 782
P.2d 1340, 1343 (1989).
Middleton has not shown that he was unfairly
prejudiced by the joinder of charges. First, as discussed above, we
reject his contention that his conviction of the murders and kidnappings
was based on insufficient evidence. Second, we conclude that the
evidence of the kidnapping and murder of each victim was cross-admissible
to prove Middleton?s identity, method, intent, and absence of mistake or
accident in regard to the kidnapping and murder of the other. "If . . .
evidence of one charge would be cross-admissible in evidence at a
separate trial on another charge, then both charges may be tried
together and need not be severed." Mitchell , 105 Nev. at 738,
782 P.2d at 1342. Evidence of collateral offenses is not admissible to
show that a defendant has the propensity to commit crime. Keeney v.
State, 109 Nev. 220, 228, 850 P.2d 311, 316 (1993). However, such
evidence may be admissible "for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident." NRS 48.045(2). To admit such evidence, the
trial court must determine that it is relevant for a permissible purpose,
that it is proven by clear and convincing evidence, and that its
probative value is not substantially outweighed by the danger of unfair
prejudice. Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65
(1997). Applying this test, we conclude that the evidence of each murder
and kidnapping would have been admissible at a trial on the other murder
Middleton asserts another ground for prejudice. He
declared at trial that he wanted to testify in regard to "the Davila
case" but could not "without looking bad on the other one." Therefore,
he now claims that joinder confounded his ability to present separate
defenses. See Drew , 331 F.2d at 88 (joinder of offenses is
prejudicial if it causes a defendant to "become embarrassed or
confounded in presenting separate defenses"). This claim remains
completely conclusory and unpersuasive: Middleton fails to specify what
his defense to the charges involving Davila was, let alone how it was
inconsistent with or harmful to his defense to the charges involving
Powell. See People v. Lane, 436 N.E.2d 456, 459-60 (N.Y. 1982) (a
defendant seeking to sever counts must make a convincing showing that he
has important testimony to give concerning one count and strong need to
refrain from testifying on the other; the defendant must present enough
information regarding the testimony he wishes to give on one count and
his reasons for not wishing to testify on the other to satisfy the court
that the claim of prejudice is genuine and to enable it to intelligently
weigh the consideration of judicial economy against the defendant?s
The district court did not err in denying the motion
Appellant's right to a speedy trial was not
Asserting that his right to a speedy trial had been
violated, Middleton moved to dismiss all charges on April 22, 1997. His
trial began less than four months later, on August 11, 1997. Middleton
raises this issue again on appeal, alleging that the state's "pattern of
disclosure and the timing of that disclosure caused [him] to wait 30
months before enjoying his right to trial." He also questions the
state's motives in successfully moving before trial to disqualify the
public defender from representing him.
It is not clear when Middleton was first arrested on
the charges in this case. He says that it was February 23, 1995. The
state claims that this arrest was for being an ex-felon in possession of
a firearm and that on May 17, 1995, Middleton pled guilty to conspiracy
to commit the crime of ex-felon in possession of a firearm and received
a one-year jail sentence. The record contains a copy of a plea
memorandum which bears out the state?s claim. The parties agree that
Middleton was first formally charged in this case on June 22, 1995.
Middleton's trial began on August 11, 1997. From February 23, 1995, to
August 11, 1997, is a period of slightly less than thirty months. From
June 22, 1995, to August 11, 1997, is a period of less than twenty-six
months. Even assuming that the relevant delay was the longer period, we
conclude that Middleton?s right to a speedy trial was not violated.
A number of Middleton's own actions contributed to
the delay of his trial. These include, for example, a petition for a
writ of habeas corpus, a motion to reconsider that petition after its
denial, a motion to sever, and a motion to dismiss or alternatively to
suppress. The district court granted Middleton?s pretrial habeas
petition, leading to a sheriff's appeal, which in turn resulted in
reversal and remand by this court. Middleton does not mention, let alone
address, the part that these or other of his own actions played in
delaying the trial.
A court must conduct a balancing test to determine if
a defendant?s Sixth Amendment right to a speedy trial was violated.
Barker v. Wingo, 407 U.S. 514, 530 (1972). The court should consider the
length of delay, the reason for the delay, the defendant's assertion of
his right, and prejudice to the defendant. Id. Unless the delay
is long enough to be presumptively prejudicial, inquiry into the other
factors is not necessary. Id.
First, we conclude that a delay of almost two and a
half years necessitates further inquiry. Second, we conclude that the
reason for the delay in this case was much more Middleton?s
responsibility than the state?s, given his extensive pretrial litigation,
most notably his initially successful habeas petition which led to an
appeal and reversal. The district court estimated that the petition was
responsible for at least three quarters of the delay. Although a
deliberate attempt to delay a trial in order to hamper the defense
weighs heavily against the state, id. at 531, the district court
found that the state had legitimate reason to move to disqualify the
public defender: a potential conflict of interest because the public
defender was also representing Haley. 5 The court also found
that the state was not otherwise abusing court procedures to delay the
trial. Third, Middleton asserted his speedy trial right, but not until
Finally, Middleton has not demonstrated that he was
prejudiced by the delay. He dispenses with this factor by citing Doggett
v. United States, 505 U.S. 647, 655 (1992), for the proposition that "affirmative
proof of particularized prejudice is not essential to every speedy trial
claim." However, "such presumptive prejudice cannot alone carry a Sixth
Amendment claim without regard to the other Barker criteria," and
"its importance increases with the length of delay." Id. at 656.
In Doggett , the United States Supreme Court concluded that
presumptive prejudice resulting from a delay of eight and a half years
combined with government negligence violated the Sixth Amendment. The
delay in this case of less than two and a half years does not give rise
to such presumptive prejudice, especially since Middleton was
responsible for most of the delay.
Middleton's right to a speedy trial was not violated.
The district court did not err in admitting
evidence of statements made by appellant to police
Middleton claims that police failed to advise him of
his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), before
subjecting him to custodial interrogations and interrogated him without
his attorney's knowledge or consent. He says that his statements to
police were used to obtain search warrants which produced incriminating
evidence and that his statements and the evidence should be suppressed.
Middleton fails to provide this court with reference to supporting facts
in the record. More tellingly, in his opening brief Middleton does not
inform us that the district court, after holding an extended hearing on
the matter, granted in part his motion to suppress.
The district court ruled from the bench. It found
that on February 23, 1995, Middleton's interrogation was noncustodial up
to the point that he asked a police officer to return the keys to his
pickup but did not get them back. The court suppressed Middleton's
statements made that day after that point. The court suppressed
Middleton's statements made on March 1, 1995, up until the district
attorney informed him of his Miranda rights. The court found that
Middleton's waiver of those rights was intelligent and voluntary and
allowed in his statements until he chose not to continue talking to
police on March 3, 1995.
Middleton's claims on this issue remain conclusory
and unsupported by adequate citation to the record. He has utterly
failed to carry his burden of demonstrating how the district court's
ruling was erroneous.
The reasonable doubt instruction was not
Middleton claims that the jury instruction on
reasonable doubt given at the guilt and penalty phases of his trial was
unconstitutional. He concedes that the instruction was the one
prescribed by NRS 175.211(1). No other definition of reasonable doubt
may be given to a jury. NRS 175.211(2).
This court would prefer that the legislature adopt a
different definition which does not describe reasonable doubt as the
kind that governs a person in life's "more weighty affairs." Bollinger
v. State, 111 Nev. 1110, 1115 n.2, 901 P.2d 671, 674 n.2 (1995). Because
the legislature has not changed the statute, Middleton asks this court
to declare the "more weighty affairs" language unconstitutional. We have
no cause to do so. We held that there was no reasonable likelihood that
a jury applied this language unconstitutionally where the jury was also
instructed concerning the presumption of innocence and the state's
burden of proof. Id. at 1115, 901 P.2d at 674. The jury in this
case was so instructed. We therefore conclude that the instruction did
not violate due process. Cf. Ramirez v. Hatcher, 136 F.3d 1209,
1211, 1215 (9th Cir. 1998).
Middleton also objects to instructing jurors that if
they have an "abiding conviction" of the truth of the charge, there is
not a reasonable doubt. He claims that this could mislead jurors to
think that the state's burden of proof was less than beyond a reasonable
doubt. This court has already stated that "we do not think the 'abiding
conviction of the truth of the charge? language dilutes the definition
of reasonable doubt or that it reduces the prosecutor's burden of proof
to convict." Lord v. State, 107 Nev. 28, 40, 806 P.2d 548, 555-56
(1991). We decline to revisit this issue.
Prosecutorial misconduct during the penalty phase
did not prejudice appellant
Middleton asserts that three instances of
prosecutorial misconduct occurred during the penalty phase. First, he
contends that the prosecutor improperly elicited the following remark
from Powell?s brother: "I can't see giving that person any more respect
or dignity or mercy than he showed Kathy." Although a victim can express
an opinion regarding the defendant's sentence only in a noncapital case,
this remark is acceptable. See Witter v. State, 112 Nev. 908,
922, 921 P.2d 886, 896 (1996).
Second, Middleton argues that reversible misconduct
occurred and the district court should have declared a mistrial when
Viloria asked Middleton?s stepmother if she was aware that Middleton "took
a sixteen-year-old woman to a remote area, kept her in his car, and
engaged in sexual activity with her?" Viloria asked this question even
though the district court had ruled, after extensive discussion, that
the facts of Middleton?s Florida conviction were not admissible as long
as the defense offered no explanation of the conviction. The state
concedes that it cannot defend Viloria's question, but nevertheless
claims that defense counsel first asked an "explosive question" which "literally
invited a response, just not the one the prosecutor exercised." We
disagree. Counsel simply asked, "And did you know he got in trouble in
Miami?", to which the stepmother answered, "Yes." Neither the question
nor the answer in any way constituted an explanation of the conviction
justifying Viloria?s question. 6
Thus, we must determine whether the district court?s
admonishment of the jurors cured the error injected by Viloria's
question. When a jury hears improper evidence of another crime by the
defendant, this court's standard of review depends on whether it is
reviewing the guilt or penalty phase of a capital case. Allen v. State,
99 Nev. 485, 490-91, 665 P.2d 238, 241-42 (1983). To establish
reversible error at the guilt phase, an appellant must prove that the
evidence "was so prejudicial as to be unsusceptible to neutralizing by
an admonition to the jury." Id. at 490, 665 P.2d at 241. Where
the issue is the validity of a death sentence, the appellant must "demonstrate
the possibility that the sentence was influenced by such testimony
notwithstanding the court's admonition to the jury." Id. at 491,
665 P.2d at 242. We add that this must be a reasonable possibility, not
an unlikely one.
In making this determination, this court should
consider four factors: (1) whether the remark was solicited by the
prosecution; (2) whether the district court immediately admonished the
jury; (3) whether the statement was clearly and enduringly prejudicial;
and (4) whether the evidence of guilt was convincing. Geiger v. State,
112 Nev. 938, 942, 920 P.2d 993, 995-96 (1996). Here, the prosecutor
himself, recklessly or deliberately, made the remark. This worsens the
error. However, even deliberate misconduct by the prosecutor does not
necessarily make the error reversible. See Emmons v. State, 107
Nev. 53, 60, 807 P.2d 718, 722-23 (1991).
Factor two mitigated the error: the district court
immediately informed the jurors that Middleton?s prior conviction did
not relate to sexual activity and determined that they would disregard
the improper question. Next, we conclude that the remark was somewhat
prejudicial, but not enduringly so. It was only one remark in a penalty
hearing that lasted more than two days, and Viloria did not say that
Middleton had sex with the victim against her will. Factor four relates
here to death-worthiness, not guilt. In this case, it also weighs
against prejudice. Given that death is an appropriate penalty for the
most heinous murders, it is appropriate here where the evidence shows
that these victims suffered horrible deaths at the hands of a callous,
calculating, sadistic killer.
Given the district court¡s timely admonition and the
immense evidence of the aggravated nature of the murders, we conclude
that Middleton has not demonstrated a reasonable possibility that the
error influenced his sentence.
Third, Middleton claims that Viloria improperly
cross-examined the Executive Secretary of the Parole and Pardons Board
regarding the possibility of the legislature's changing the statute
which prohibits commutation of life sentences without the possibility of
parole. However, Middleton did not object below. Therefore, this court
should review the claim only if it is plain error, which requires
Middleton to show that the cross-examination was patently prejudicial.
Riker v. State, 111 Nev. 1316, 1328, 905 P.2d 706, 713 (1995). It was
improper for the state to delve into the possibility that a sentence of
life imprisonment without parole could be modified. This court formerly
required jurors in capital cases to be instructed that "you may not
speculate as to whether the sentence you impose may be changed at a
later date." Petrocelli v. State, 101 Nev. 46, 56, 692 P.2d 503, 511
(1985). More recently, we directed that all references to modification
of sentences be eliminated from capital jury instructions. Sonner v.
State, 114 Nev. ___, ___, 955 P.2d 673, 677 (1998). However, we conclude
that any prejudice caused by the state?s cross-examination was
The district court did not err in rejecting jury
instructions proposed by the defense
Middleton asked the district court at the penalty
phase to instruct the jury that it could consider any residual doubt it
had regarding his guilt and that "it must find that [Middleton] has no
significant history of prior criminal activity and that mitigating
circumstance may be enough to defeat all aggravating circumstances and
result in a sentence less than death." He claims that in rejecting the
proposed instructions, the court unconstitutionally excluded aspects of
mitigation from the jury?s consideration. This claim has no merit.
First, a capital defendant has no constitutional
right to a jury instruction making residual doubt a mitigating
circumstance. Homick v. State, 108 Nev. 127, 141, 825 P.2d 600, 609
(1992) (citing Franklin v. Lynaugh, 487 U.S. 164 (1988)). Second, a
proposed jury instruction must correctly state the law, and even a
correct instruction need not be given if it is covered by other
instructions. Barron v. State, 105 Nev. 767, 773, 783 P.2d 444, 448
(1989). Middleton had two prior felony convictions; thus, he had no
right to have the question of fact regarding his prior criminal history
decided as a matter of law. Nor was the question excluded from the
jury?s consideration. One jury instruction listed possible mitigating
circumstances, including "no significant history of prior criminal
activity." The jury was also instructed that any one mitigating
circumstance "may be sufficient, standing alone, to support a decision
that death is not the appropriate punishment in this case." It was
further properly instructed that even absent a finding of any mitigators,
it was not required to return a sentence of death but could sentence
Middleton to life in prison with or without the possibility of parole.
The aggravating circumstances were valid, and the
death penalties are not excessive in this case
Middleton invokes NRS 177.055(2), which requires this
court to review his death sentence and consider:
(a) Any errors enumerated by way of appeal;
(b) Whether the evidence supports the finding
of an aggravating circumstance or circumstances;
(c) Whether the sentence of death was imposed
under the influence of passion, prejudice or any arbitrary
(d) Whether the sentence of death is
excessive, considering both the crime and the defendant.
Middleton contends first that "the jury's apparent
rejection of any mitigating factor demonstrates" that his sentence is
unreliable and the product of passion and prejudice. The verdict forms
indicate that the jury found that "any mitigating circumstance or
circumstances are not sufficient to outweigh" the aggravating
circumstances. Therefore, it is possible that the jurors found
mitigating circumstances existed. But even if they found none, Middleton
cites no evidence or authority to demonstrate how that shows the
influence of any arbitrary factor.
Next, Middleton challenges the validity of two of the
aggravating circumstances. He claims that it was improper to enumerate
his two prior Florida offenses as separate aggravators because they
stemmed from a single event. This court has held, however, that "if the
defendant can be prosecuted for each crime separately, each can be used
as an aggravating circumstance." Riley v. State, 107 Nev. 205, 217, 808
P.2d 551, 558 (1991). Middleton also contends that there was no evidence
to support the aggravator of torture and depravity of mind 7
found in Powell's murder. We disagree. There was sufficient evidence for
the jury to find that Middleton held Powell bound and captive for an
extended period of time while he treated her sadistically--the bite on
her breast is direct evidence of this while various items found in the
storage unit are indirect--and that he finally allowed her to suffocate
while she beat her knees and elbows against the sides of the
refrigerator in her anguish. We conclude that this evidence supports a
finding of torture and depravity of mind.
Pursuant to NRS 177.055(2), we conclude that the
evidence supports the finding of the aggravating circumstances, that it
does not appear that Middleton's sentences of death were imposed under
the influence of passion, prejudice, or any arbitrary factor, and that
the sentences are not excessive, considering both the crime and the
Nevada's death penalty statutes are constitutional
Middleton argues that Nevada's death penalty statutes
fail to narrow the class of defendants who are death eligible. See
, e.g. , Arave v. Creech, 507 U.S. 463, 470-74 (1993) (a
capital sentencing scheme must direct and limit the sentencer's
discretion to minimize the risk of arbitrary and capricious action and
must genuinely narrow the class of persons eligible for the death
penalty). He criticizes Allen , 99 Nev. at 488, 665 P.2d at 240,
which cites NRS 175.552(3) and holds that the state may introduce
evidence at a capital penalty hearing in addition to the aggravating
circumstances set forth in NRS 200.033. He concludes that Nevada's
statutes therefore fail to narrow the class of defendants who are death
eligible. This argument is unpersuasive.
This court did not hold in Allen that evidence
outside the purview of NRS 200.033 could serve to render a defendant
death eligible. Only enumerated aggravating circumstances pursuant to
NRS 200.033 can do this. If a jury does not find at least one enumerated
aggravator, then a defendant is not eligible for the death penalty--regardless
of the evidence presented pursuant to NRS 175.552(3). See NRS
200.030(4)(a); NRS 175.554(3). 8 If an enumerated aggravator
or aggravators are found, the jury must find that any mitigators do not
outweigh the aggravators before a defendant is death eligible. NRS
200.030(4)(a); NRS 175.554(3). Even if the jury finds that any
mitigators do not outweigh the aggravators, a death sentence is not
automatic, and the jury must decide in light of all the relevant
evidence whether it considers death the appropriate penalty. NRS
175.554(3); Geary v. State, 114 Nev. 100, 105, 952 P.2d 431, 433 (1998).
At this final stage, evidence presented pursuant to NRS 175.552(3) can
influence the decision to impose death, but this comes after the
narrowing to death eligibility has
occurred. 9 This evidence should be
considered because each capital defendant must be treated as a unique
human being and receive an individualized sentencing determination based
upon his character and the circumstances of the crime. Homick ,
108 Nev. at 136, 825 P.2d at 606.
Middleton also argues that this court defines too
broadly the scope of aggravating circumstances, specifically its
definition of prior convictions and "at random and without apparent
motive." See NRS 200.033(2) and (9). Neither of these arguments
applies to Middleton?s case and needs to be addressed here.
Appellant?s remaining claims warrant no relief