Murder conviction in death of LV bartender overturned

Wednesday, Dec. 31, 1997 | 11:07 a.m.

CARSON CITY -- The Nevada Supreme Court Tuesday overturned the first degree murder conviction of Michael J. Silva, sentenced to life in prison for the killing of a Las Vegas bartender in 1992.

The court agreed with attorneys for Silva that District Judge Sally Loehrer was in error when she permitted an alleged accomplice to testify at the trial. Silva will now get another trial.

He was accused of the robbery of the Wagon Wheel Bar and the fatal stabbing of bartender Howard Gibbons in the back on March 12, 1992.

At the trial, the prosecution called Brian Loehr, a companion of Silva's. Loehr admitted on the stand that he pleaded guilty to robbery and murder, but refused to answer questions about the killing. He said he would be labeled a "snitch" in prison and might be attacked by other inmates.

After refusing to answer questions, Loehr was cited for contempt of court 17 times.

Justice Cliff Young, who wrote the majority opinion, said the testimony of Loehr "created an implication that Silva was guilty of the charges filed against him." Yet lawyers for Silva had no chance to cross-examine Loehr because of his refusal to answer questions.

Young also said there was a "more egregious violation of Silva's rights" when the judge permitted Loehr to remain on the stand, even though he refused to answer questions.

"At the very least, when it became apparent that Loehr was not going to answer questions even under the threat of contempt charges, the judge should have discontinued the questioning and investigated the matter outside the presence of the jury," Young said. Justice Charles Springer agreed with Young.

Chief Justice Miriam Shearing and Justice Bob Rose joined in a concurring opinion saying the conviction should be overturned because of an error by the prosecution.

Shearing and Rose said the prosecution in the closing arguments told the jury that if Silva was not guilty, Loehr would have testified to that fact.

The two justices said the prosecution left the inference that Loehr by his silence meant that Silva was guilty.

Justice William Maupin dissented, saying the evidence of guilt was "so overwhelming that the error is harmless."

In other cases, the court dismissed the appeals of two men convicted of different killings in Clark County.

Bruce M. Ennis shot Lynn Forisha in the chest after an argument in September 1992. He was found guilty of murder with use of a deadly weapon.

The court rejected Ennis' argument that it was self defense and there was not enough evidence to find him guilty of murder with use of a deadly weapon.

It also tossed out the appeal of Malcolm Gray, found guilty of second degree murder in the shooting of Amy Tuttle in Las Vegas in November 1994. Gray contended he was only trying to scare Tuttle when he placed a gun to her head and pulled the trigger. He said he believed the weapon was not loaded.

In other decisions, the court:

* reversed a judgment ordering Las Vegas businessman Milton Schwartz to pay $529,673 to Peter Eliades in a contract dispute. The court said Eliades allowed the statute of limitations to expire before filing suit. Eliades, a friend of Schwartz, invested in a company called Misco Inc. where Schwartz was the main owner. The company was sold and Eliades lost his investment. Eliades filed suit claiming Schwartz fraudulently induced Eliades to invest by withholding information about Schwartz's connection with a crooked businessman.

* ruled Ronald Garamendi and John Garcia should be able to pursue a lawsuit against Ortega Concrete Pumping Inc. after the two men were severely burned while pouring a concrete floor for a new flood channel in Las Vegas. A boom on an Ortega concrete truck struck an overhead power line, sending a high voltage current down into the channel where the two men were working and both were electrocuted. The court reversed the decision of former District Judge J. Charles Thompson who granted a pre-trial summary judgment in favor of Ortega. It said the case should go to trial.

* clarified the law in cases where juveniles, accused of a violent crime, must be certified to stand trial as an adult. The court said judges do not have to send the youngster to adult court if they find that drug abuse "substantially influenced or contributed" to the criminal act. The decision overturned the ruling of Judge Gerald Hardcastle who interpreted the law to read that cases of youngsters, accused of violent crimes, can remain in juvenile court only if the drugs actually caused or resulted in the criminal act. The case involved a juvenile in Las Vegas accused of trying to slash another youngster with a knife. It was returned to juvenile court for more hearings.