Avram Nika was convicted killing
Edward Smith of Fallon, after he stopped to help Nika whose car had
broken down on Interstate 80 east of Sparks. Nika beat Smith and shot
him in the head, then dragged his body off the side of the road.
Death penalty upheld
December 31, 2008
A man sentenced to die for the 1994
killing of a good Samaritan who stopped to help
him along Interstate 80 near Reno lost Wednesday in a bid
to overturn his conviction.
In a 5-2 decision, the high court ruled against Avram
Nika, who claimed a Washoe County District Court
judge erred by dismissing his claims of
ineffective legal counsel without an evidentiary hearing.
Nika was sentenced to death for beating and killing
Edward Smith by shooting him in the forehead at
point-blank range. Authorities said Smith was on
his way home to Fallon when he stopped about 20 miles east of Reno
to help Nika, whose car had broken down.
Nika was driving Smith's car when he was arrested in
Chicago. Authorities said his clothing also had
blood on it from the victim.
Chief Justice Jim Hardesty, who wrote the majority
opinion, said that for Nika to succeed with an
ineffective counsel claim he must prove the
lawyer's acts or omissions were deficient and also show that prejudice
resulted, and his claims "fail on the first prong of this test."
Hardesty also said closing arguments by one of Nika's
lawyers were "disorganized and unfocused" but
that problem was "defused" because there was
strong evidence to support a conviction and another defense lawyer
made a second closing argument.
Justices Michael Cherry and Nancy Saitta dissented
from the majority ruling. Cherry wrote that Nika
deserves a new penalty hearing because his trial
and appellate lawyers "were deficient on several grounds."
Among other things, Cherry said jurors had "an
incomplete depiction" of Nika's character because
of a lack of mitigating evidence about his
background. A Romanian, Nika spoke only limited English and his trial
attorney should have sought help from the Yugoslavian consulate,
Hardesty said it's not clear what the consulate could
have done to help Nika, especially since the
victim's wounds, including the fatal shot to
Smith's head, "evince a calculated, deliberate act" of murder.
Nika v. State
Appellant Avram Nika ("Nika") left
Aptos, California, where he lived with his wife Rodika, between noon and
1 p.m. on August 26, 1994, and was traveling to Chicago so that he could
fly from there to Romania to visit his sick mother.
Nika's car was full of clothes, tools, electronic
items, and a small television. According to Rodika, Nika was from
Romania and spoke fluent Serbo-Croatian, spoke almost fluent Romanian,
and spoke only broken English. Rodika also stated that Nika did not
speak colloquial English and that she had to be present when he had
dealings with merchants, government officials, and other people. Nika
was driving a brown Chrysler New Yorker, and testimony indicated that it
takes approximately five and one- half hours to drive from Aptos to
Reno. Nika's car broke down at mile marker 34, approximately twenty
miles east of Reno.
Edward Smith ("Smith") was employed as a manager at a
Burger King in Reno. Smith left work to go home at approximately 8 p.m.
to 8:10 p.m. on August 26, 1994. The Smith family lived in Fallon, and
Smith had made plans with his wife and child to attend a movie that
started at approximately 9:45 p.m. Smith drove a silver 1983 BMW, and
Mrs. Smith testified that the BMW often would not start, that they had
to push start it, and that they had recently bought a new battery for
the BMW in July 1994. Testimony indicated that it takes approximately
one hour to one hour and fifteen minutes to get from the Burger King in
Reno to the Smith's home in Fallon and that it takes approximately forty
to forty-five minutes to get from the Burger King to mile marker 34.
Several people saw Nika standing by his car at mile
marker 34 on August 26, 1994. Edward Sanchez was driving a maroon Nissan
Sentra and was flagged down by Nika at approximately 7:45 p.m. Sanchez
pulled his car in front of Nika's and backed up toward the brown
Chrysler. Nika approached Sanchez's passenger window and said his car
had broken down and that he needed help. Sanchez got out of his car and
attempted to find out what was wrong with Nika's car. Sanchez stated
that Nika had a thick accent, strong body odor, a day's beard growth and
wore blue cut-off jeans. Sanchez offered to give Nika a ride, but Nika
could not decide if he wanted to accept the ride and instead had Sanchez
call a tow truck for him. Sanchez stated it was shortly after 8 p.m.
when he got back into his car, perhaps 8:02 p.m. Sanchez stopped at a
truck stop in Fernley and asked one of the clerks to call a tow truck
Davina Boling was driving with her boyfriend on I-80
and saw the brown Chrysler on the side of the road around 8:30 p.m. They
pulled over to help Nika, whom Boling described as looking frustrated,
and Nika told them he had been there for three or four hours and needed
a tow truck. They offered him a ride, which he declined, but he
requested that they call a tow truck for him. As they left, Nika told
them "Good-bye. Thank you, God bless."
Debra Fauvell ("Debra") stated that at approximately
8:40 p.m. she and her husband passed mile marker 34. She stated that she
saw two cars on the side of the road, the first was a tan or light
colored, four-door sedan which did not have any lights on and which had
both driver's side doors open. About 150 feet in front (east) of the tan
car she saw a dark brown sedan-type car with its hazard lights on. She
saw two people standing by the first (most westerly) car. The person
standing by the rear passenger side of the first car had a medium build,
was about five feet ten inches tall, and was wearing a white T-shirt and
light colored, faded jean-type pants. The second person was twenty feet
in front of the first person, was bigger and had bushier hair than the
first person, and was walking in a southeasterly direction away from the
cars. Debra was shown a picture of Smith and stated that the second
man's stature was consistent with Smith's. Daniel Fauvell, Debra's
husband, testified that he was driving the car. He stated that he was
focused on driving and did not see much, but the first car that they
passed did not have any lights on, the second car had its hazard lights
on, and one person was standing next to the first car.
Trooper Terry Whitehead of the Nevada Highway Patrol
testified as follows. He came into contact with Nika while patrolling
the highway on August 26, 1994. Whitehead was traveling westbound on
I-80 when he saw a stranded BMW on the eastbound shoulder with its
hazard lights on. He made a U-turn across the highway and went to help
the stranded motorist. As Whitehead approached the BMW, he passed a
brown Chrysler with no lights on. Because the Chrysler had no lights on,
the hood was not open, and nobody was in the car, he drove further and
pulled behind the BMW. The dispatch log indicates that he ran a license
plate check on the BMW at 8:51 p.m. (the license plate was a Nevada
plate), and he also looked at the BMW to see if it had indications that
it was stolen. There were no people or items of personal property in the
BMW. Because the dispatcher did not return his inquiry, he assumed that
the BMW was not stolen and started to back up to check out the Chrysler,
which was about 400 feet behind (west of) the BMW. As Whitehead backed
up, he saw someone waving a flashlight from a southeasterly direction
apparently trying to get his attention. The flashlight was coming from
the area where Smith's dead body was found the next day. Whitehead got
out of his car and asked Nika what was wrong with his car; Nika pointed
to the BMW and stated, "Everything's wrong with it." Whitehead asked
Nika if he needed a ride. Nika declined and instead asked for a tow
truck. Whitehead said he would call one and asked Nika if there was
anything else he could do for him. Nika stated he could use a ride to
Chicago. Whitehead stated he did not patrol that far. At 8:53 p.m.
Whitehead requested a tow truck for Nika. Whitehead stated that Nika was
wearing white high-top tennis shoes and did not seem more nervous than
any other person who had been stranded at night on the side of the road.
He also stated that he did not see any blood on Nika's shoes or fanny
pack and that he never asked Nika his name. Whitehead left the scene at
8:56 p.m. to answer a call for back-up assistance on a DUI case.
Karl Younger testified for the defense. He stated
that he worked for Anderson Towing and received a call at his home in
Reno on August 26, 1994, at 8:45 p.m. requesting tow truck assistance at
mile marker 34 for a Chrysler New Yorker. At approximately 9:15 p.m.,
Younger saw the Chrysler and backed up toward it to prepare to tow it,
at which time he noticed two other cars about sixty yards in front of (east)
the tow truck. The first car in front of Younger was a silver BMW with
out-of- state license plates and its lights on. The second car, a blue
or brown Nissan or Datsun which also had its lights on, was in front of
the first car. As he backed up to the Chrysler, two people approached
the tow truck and told him that the Chrysler needed oil, that they had
taken the driver to town to get the oil, and that the tow truck was no
longer needed. Neither of these two men spoke with a thick accent and
both spoke perfect English. Younger also noticed five to seven other
people with flashlights in the area where Smith's body was eventually
found. Younger then left the scene.
Loni Kowalski testified that she worked at Hanneman's
Tow Service and received a call at 8:53 p.m. from the Highway Patrol
requesting a tow truck for a silver BMW. At 8:57 p.m. she called Jerry
Turley, an employee who was on call but at his own home, to tell him to
respond to the request. Turley testified that he drove west from Fernley
toward mile marker 34, looking on both sides of the highway for the
silver BMW. He did not see the BMW and called Kowalski to inform her of
such. Kowalski told Turley to keep looking, and Turley eventually saw
two cars on the eastbound shoulder, exited the freeway and re- entered
going eastbound, and put his flashers on as he arrived at the two cars.
He noticed that neither car was a silver BMW, turned his flashers off,
and called Kowalski at 9:49 p.m. to tell her that he could not find the
BMW. Turley stated that one car was a large dark car that could have
been a Chrysler and that the other car was a smaller domestic car, like
a Mercury Monarch or Ford Granada, which had its flashers on. He saw two
people standing by the Chrysler but could not describe them.
On August 27, 1994, Ray Hansen, a brakeman for
Southern Pacific Railroad, noticed what he thought was a body lying next
to the fence between the railroad tracks and I-80. The police were
called, and a trooper found the body. Careflight was also called because
it was first believed that a motorcycle accident had occurred and that
medical attention was required. The Careflight helicopter landed
approximately fifteen to fifty feet from the body, and the medics
checked the body and discovered that the person was dead.
David Billau was the crime scene investigator. He
stated that the Careflight helicopter which landed near the crime scene
could have disturbed the crime scene. He described the crime scene as
follows: the Chrysler was parked off the shoulder of the eastbound lane
of I-80; south of the car was a small hillside; south of the hillside
was a barbed wire fence under which Smith's body was dumped; and south
of the fence and body were the railroad tracks. Drag marks in the dirt
extended from the Chrysler to where the body was found. By the
Chrysler's rear passenger tire was a rock with pooled blood on it. By
the front tire was an area of red stained dirt in which a bullet and
human hair were found. A spent shell casing was found a few feet in
front of the red stained dirt. Smith's body was found under the barbed
wire fence and his pants were hanging from the fence. His wallet was
found with money still in it lying next to his body. Smith had been shot
in the forehead.
The police traced the brown Chrysler to Avram Nika
and an address in Chicago. On August 29, 1994, the Washoe County
Sheriff's office called the Chicago police for assistance in locating
Nika. Chicago Police Detective Tony Villardita and his partner
discovered several addresses for Nika and attempted to locate him. They
saw Nika exit a silver BMW, and when they asked him his name, Nika gave
them a false name. Based on this information they arrested Nika for
possession of a stolen vehicle and read him his Miranda rights. Nika
apparently told the police that he understood his rights and that he
would waive those rights and speak to them.
Nika first denied any knowledge of the BMW and said
that he had walked to his house. When the police told him that they saw
him in the car and that they had found the car key in his pocket, Nika
said that the car belonged to his friend, but that he did not know his
friend's name. The police then told Nika that the BMW was involved in a
murder outside Reno. Nika said that he had left Aptos in his Chrysler,
arrived in Reno at around 2 p.m., went to a casino to eat, and when he
came out of the casino his car was gone but his license plates were
still there. At that point three males pulled up and offered to sell the
BMW to him for $300.00. He took the offer, put his plates on the car,
and drove to Chicago. He also stated that he made no other stops in Reno
and that the car had no mechanical problems.
The police then told Nika that the BMW was seen on
the side of I-80, and Nika then said that the BMW had an oil and
antifreeze problem about thirty miles east of Reno, several people
stopped to help him, and he eventually got the car restarted. Nika said
that he did not see his stolen Chrysler where the BMW broke down. The
police told him that witnesses had seen both cars on the side of the
road. Nika then told the police that he was "ready to tell the truth,"
and he said that he left the casino in his Chrysler and had car problems
about thirty miles east of Reno. He said several people stopped to help
him, and then the same three males he described earlier stopped to help
him and offered to sell him the BMW for $300.00. He bought the car,
changed the license plates, and loaded his personal property into the
Nika also stated that just as he was ready to leave
and while the three males were still at the scene, a police officer
stopped to help him. Nika told the officer that the BMW was experiencing
problems but that he was able to start it, and then he drove to Chicago.
Nika also stated that he went to his mother-in-law's garage in Chicago
to unload his personal property, drove to get something to eat, and then
was arrested by Villardita and his partner. After this questioning was
conducted, John Yaryan ("Yaryan"), the Washoe County Sheriff's deputy
who had flown to Chicago, questioned Nika. However, the district Judge
suppressed this statement based on the fact that Nika had invoked his
right to remain silent and his right to counsel and that Yaryan
continued to question Nika at length. The State has not argued that the
suppression was improper.
The police obtained consent to search the garage of
Nika's mother-in-law. They found a fanny pack, tennis shoes, and blue
denim cut-off jeans, all of which were tested by forensic investigators.
The forensic investigators found blood spatter on all three items, and
DNA testing indicated that the blood was consistent with that of Smith
and excluded Nika as a source. The forensic investigators stated that at
a minimum, 1 in 8,800 people had the same DNA pattern they discovered.
Nika was extradited from Chicago to Reno and was
booked into Washoe County jail on September 1, 1994. During Nika's
incarceration, Nathanial Wilson ("Wilson"), an inmate at the Washoe
County jail, befriended Nika. Wilson testified to statements made by
Nika regarding the events on 1-80. Specifically, Nika told Wilson that
his car had broken down, a man stopped to help him, the man called him a
"motherf ..... ," he hit the man in the head with a crowbar, and then
shot him in the head. Nika stated that in Romania, his country of origin,
you did not use the word "motherf ..... ," and that you could be killed
for calling somebody that name. Nika stated that the victim was lying on
the ground when he was shot in the head, that he tried to hide the body
in some bushes, and that he killed the man because "he needed to get to
Chicago." Nika stated that he hid the gun, which was an automatic pistol,
about five miles from the crime scene. (The gun was never found despite
an extensive search.) Nika told him that he had taken the battery out of
his car and put it in the BMW because the BMW would not start.
Wilson was in jail on one count of selling cocaine
and stated that he did not receive any deal from the prosecution in
exchange for his testimony. However, Wilson spoke to the police for the
first time on October 11, 1994, and was released from jail and granted
probation on November 18, 1994, after pleading guilty to what he called
"possession for sale," a lesser crime than that with which he was
Dr. Anton Sohn ("Dr. Sohn") conducted the autopsy on
Smith. He found three blunt trauma wounds on the back of- Smith's head
where Smith had been hit with an object heavy enough and with enough
force to fracture the skull beneath each wound. Dr. Sohn testified that
at least one of the blunt trauma wounds was delivered to the skull while
Smith was lying on the ground face down. On Smith's forehead was a
bullet wound which Dr. Sohn classified as a "contact wound," stating
that it was created when the muzzle of the gun was placed directly
against the forehead and the gun was fired. Dr. Sohn found an exit wound
in the back of Smith's head and found other lacerations on Smith's face.
Dr. Sohn found scrapes or "drag marks" on Smith's chest which were
consistent with Smith's body being dragged in the dirt. Dr. Sohn stated
that the gunshot to the head was the cause of death and that the blunt
force traumas were inflicted before Smith was shot.
At the Conclusion of the trial, the jury found Nika
guilty of first degree murder with the use of a deadly weapon. At the
penalty hearing, the prosecution sought the death penalty and alleged
three aggravating circumstances as follows:
1. Evidence that the murder was
committed by AVRAM NIKA during the commission of or attempt to commit a
robbery. NRS 200.033(4).
2. Evidence that the murder was committed to avoid or
prevent a lawful arrest. NRS 200.033(5).
3. Evidence that the murder was committed upon one or
more persons at random and without apparent motive. NRS 200.033(9).
Anna Boka ("Anna"), Nika's mother-in-law, testified
at the penalty hearing as follows. Nika had a violent temper, and in
1991 when she did not give Nika money for a trip, he threatened to kill
both her and Rodika, Anna's daughter and Nika's wife. Peter Boka ("Peter"),
Anna's husband, told Anna that in September 1993 he and Nika had gotten
into an argument and Nika put a gun to Peter's head. (Peter later
testified that he never saw a gun and that Nika only threatened to shoot
him.) Anna stated on cross-examination that Peter was a very heavy
drinker and had instigated the fight in September 1993. In October 1993,
Nika stated that he would kill Anna if Rodika did not come back to live
with him. Also in October 1993, Nika wanted to see his and Rodika's baby
who was staying at Anna's house, but Peter refused to allow Nika in the
house. At that point Nika flashed a gun and told Anna that if Peter did
not let him see the baby, he would kill Peter. Finally, in November
1993, Nika told Anna that if Rodika did not leave Anna's house in
Chicago and come back to him, he would burn down Anna's house.
Mary Ellen Izzo testified that Nika had raped her in
an apartment building in Chicago in December 1989. She stated that he
was helping people move into or out of the building, that she met him in
the hallway, and that he later told her that his mother, who was the
manager of the apartment, wished to see her. She went into the manager's
apartment with Nika and he locked the door and told her to come into the
bedroom because that was where his mother was. When she was in the
bedroom, Nika pushed her on the bed, hit her, and sexually penetrated
her. Izzo escaped after Nika let her up, and she then called the police.
Nika was never prosecuted for the alleged crime, and Izzo stated that
she did not proceed with the prosecution because Nika's aunt threatened
to evict her if she proceeded, she had three children to take care of,
and she did not have enough money to move. Izzo stated on cross-examination
that she had bruises on her face and breasts as a result of the rape;
however, a hospital report indicated that she had only red marks on her
neck. The defense attorney asked Izzo if she was a drug user, and Izzo
stated that she was not. Izzo stated that shortly after this event she
received government housing and moved.
Rodika, Nika's wife, testified for the defense as
follows. In reference to the alleged sexual assault, Izzo had approached
Rodika's family and stated that if they did not want to see Nika jailed
for rape, they had better pay her some "big money." She had heard that
Izzo had a drug problem and had hung her children out of her second
story window. In reference to the September 1993 incident between Nika
and Peter, the police were called, and they never found a gun. She
acknowledged on cross-examination that Nika was violent and had made
death threats against her and her family on several occasions.
Dorina Vukadin, Rodika's sister, also testified for
the defense. She stated that Nika played sports with her children and
that her children liked Nika, but she also stated that he was a stern
On July 10, 1995, the jury found beyond a reasonable
doubt that the murder committed by Nika was aggravated by the fact that
the murder was committed upon Smith at random and without apparent
motive. The jury also found that no mitigating circumstances existed.
Consequently, the mitigating circumstances did not outweigh the
aggravating circumstances found; and therefore, a sentence of death was