Mortensen appeals to Nevada Supreme Court

Bill Gang

Thursday, March 11, 1999 | 11:29 a.m.

The attorney for Ron Mortensen asked the Nevada Supreme Court today to free the former Metro Police officer who is serving a life prison sentence for a 1996 drive-by shooting.

Frank Cremen charged that prosecutors and homicide detectives so "trampled" on Mortensen's constitutional rights "in bad faith" that granting a new trial in his first-degree murder conviction is insufficient. He asked the three-justice panel to dismiss the case and free Mortensen.

"Any objective review of the record of these proceedings compels the conclusion that there has been a miscarriage of justice," Cremen stated in documents for the high-court appeal in Las Vegas this morning.

The justices took the request under advisement.

Mortensen, 33, was convicted in May 1997 of the shooting death on Dec. 28, 1996, of 21-year-old Daniel Mendoza outside an apartment in a gang-infested area near Paradise Road and Twain Avenue.

Mortensen was in a truck driven by fellow officer Christopher Brady as the pair playfully rampaged through neighborhoods to celebrate Mortensen's 31st birthday by harassing drug dealers, street people and gang members, according to court records.

But a stop outside the apartment at 537 McKellar Circle turned deadly serious when Mortensen pulled his pistol, according to trial testimony. A moment later six shots were fired and Mendoza fell fatally wounded.

Two days later, Brady went to homicide detectives and admitted his involvement while naming Mortensen as the shooter.

That position had been supported by Mendoza's companions, who told jurors in District Judge Joseph Pavlikowski's courtroom how they had dodged bullets fired by the laughing passenger in the bright blue truck.

But at trial, Mortensen testified that Brady actually had been the gunman -- grabbing Mortensen's .380-caliber semiautomatic pistol, leaning across the truck and opening fire.

Cremen contends that police and prosecutors wrongly portrayed Brady as a credible witness who was something of a hero for coming forward and solving a case that had few leads and witnesses who were reluctant to cooperate.

Cremen argued in court documents that Brady, in reality, had been involved in several incidents as a police officer that showed him to be a "rash, impulsive, hotheaded" individual who was "quick to resort to his weapon without provocation."

Deputy District Attorney William Koot told the justices this was "not a close case. We felt the evidence was overwhelming."

Koots added that when the testimony of Brady and Mortensen is excluded, the independent evidence all points to Mortensen.

Five eyewitnesses identified the passenger of the truck as the shooter, and three of the five specifically identified Mortensen. No one identified Brady as the shooter.

The attorney said Mortensen was denied his rights by not being allowed to question Brady about incidents recorded in complaints to Metro's Internal Affairs Bureau. The complaints were determined to be unsubstantiated.

"Here the trial judge prohibited compelling and otherwise admissible evidence concerning Brady ... and unconstitutionally prevented Mortensen from presenting crucial evidence," Cremen stated.

He added that Pavlikowski also wrongly excluded the testimony of a young woman who publicly charged that Brady had forced her to perform a sex act after he stopped her for a traffic violation.

The woman had given a statement to authorities indicating that she asked Brady after the incident how a police officer could do such a thing and he responded, "Some people call me evil ... Man, I am evil."

Mortensen testified that when he asked Brady why he had fired the shots on McKellar Circle, Brady answered, "I told you I was an evil man. I am evil."

"Clearly this statement is more than coincidental," Cremen said in court documents. "It appears that such a statement is utilized by Brady as a 'signature' to his reprehensible conduct."

Cremen charged that authorities "chose, at every turn, to protect and even coddle Christopher Brady."

Mortensen's appeal also charged that investigators failed to preserve evidence that could have helped support the defense theory.

Koots said no evidence was withheld from the defense.

Cremen told justices the clothes Brady wore the night of the killing were laundered before they could be tested and Brady was given back his truck within days of the incident and later given permission by police and prosecutors to have it painted and change the interior.

Cremen said there had been an order by a justice of the peace to preserve the clothing and truck as evidence.

Tests were conducted late in the case by Metro criminalists, and Cremen alleged that the judge improperly permitted testimony about unsubstantiated "scientific" tests that concluded Brady's truck was moving when the shots were fired.

Koots said there was "nothing magic" about the conclusion. "It was simple ... It shows that bullets travel in a straight line."

Cremen complained the defense was never informed of the testing and was not given a chance to perform its own tests to contradict the Metro conclusions.

He said that "speculative" conclusion let prosecutors argue that because Brady was in the driver's seat he could not have been the shooter because he was driving the vehicle.

Koots said the prosecution assumed that the defense position would be that Mortensen fired in self-defense, and it wasn't until the defense blamed Brady that the truck movement became important.