Prosecutors move to ensure testimony of key witness in Floyd case

Bill Gang

Friday, Aug. 6, 1999 | 11:59 a.m.

Fearing that a key witness against Zane Floyd in the Albertson's supermarket slayings won't be available at trial, prosecutors have filed court documents seeking permission to preserve her story through a videotaped deposition.

The motion was filed under seal on July 7 by prosecutors, who stated they wanted to keep the identity of the 20-year-old witness from the media. District Judge Jeff Sobel also ordered the attorneys not to discuss the issue.

But other court documents filed this week identify the witness as an outcall entertainer summoned by Floyd to his home shortly before the deadly rampage during the early-morning hours of June 3 inside the store at Sahara Avenue and Valley View Boulevard.

It is alleged that Floyd, a 23-year-old ex-Marine and part-time nightclub bouncer, repeatedly raped the young woman and then told her of his plans for a murder spree.

In the rampage at Albertson's, five market employees were gunned down -- some of them chased down by the shotgun-wielding assassin. Four of them died.

Floyd, who was captured as he left the market carrying his shotgun, has pleaded not guilty and is scheduled to stand trial March 6.

In the sealed motion, prosecutors expressed concern about the outcall entertainer's "transient lifestyle" and whether she would make herself available for the trial, since she did not go to police after the attack.

The woman, however, did tell her employer what had occurred, and he notified authorities, who then contacted the witness.

Without her testimony, neither Floyd's mindset before the deadly assault nor the allegation that he committed sexual assault just minutes before going to the market could be presented to a jury.

Although the woman gave a statement to police and identified Floyd in a lineup, that information cannot be presented at a trial under Nevada law without her presence.

The only way such a story could be admissible is if defense attorneys had an opportunity to cross examine her about the details while she is under oath -- such as during a preliminary hearing or at a video-taped deposition.

While depositions are routine in civil cases, they are rare in criminal cases because the courts have declared that witnesses should appear in person if possible so jurors can judge their credibility.

Nevada law authorizes depositions in criminal cases only "to prevent a failure of justice ... if it appears a witness may be unable to attend or is prevented from attending a trial or hearing."

Usually that involves an elderly or injured person who may die before a trial.

In their opposition to the prosecution's motion, deputy public defenders Curtis Brown and Douglas Hedger argued that there are no indications the woman won't be available for the trial.

And if securing her appearance is a problem then a warrant for her arrest as a material witness can be issued, the lawyers noted in court documents.

The defense noted that the woman made herself available for a police lineup and for Floyd's preliminary hearing in Justice Court.

But she never had an opportunity to testify, which would have legally memorialized her story, because Floyd waived his right to a preliminary hearing in a tactical move that sent the case directly to District Court for trial.

Waiving the preliminary hearing not only kept her off the witness stand but also prevented widespread publicity in the case from tainting potential jurors. The hearing was scheduled to be broadcast live on the Las Vegas 1 cable news channel.

While the state's motion was sealed, the opposition documents were not and specify many of the prosecution positions as a prelude to the defense positions.

The defense documents state that a court order authorizing an immediate deposition is premature at the very least. The attorneys argued that they aren't prepared to ask the necessary questions because their investigation of the incident won't be completed until shortly before the March trial.

District Attorney Stewart Bell, who will prosecute the case, has announced that the death penalty will be sought, and it is expected the alleged sexual assault would be listed as an "aggravating circumstance."

Multiple deaths is another of the "aggravating circumstances" that must be proved before the death penalty can legally be sought. Prosecutors also are contending the murders were random and without motive and occurred during a burglary.

Metro Police homicide detectives have said the outcall entertainer informed them that Floyd stated minutes before the rampage that he had 19 shotgun shells and was going to kill the first 19 people he saw.

Witnesses have said Floyd marched into the market and immediately opened fire.

The murder victims have been identified as Thomas Michael Darnell, Dennis Troy Sargent, Carlos Chuck Leos and Lucille Alice Tarantino.

A fifth employee, Zachary Emenegger, was shot but survived after spending days in a hospital.