Mortensen attorney won’t give up after appeal denied

Cy Ryan and Bill Gang

Tuesday, Sept. 28, 1999 | 11:34 a.m.

CARSON CITY -- The Supreme Court may have turned down an appeal for a new trial, but the attorney for former Metro Police Officer Ron Mortensen, convicted in a December 1996 drive-by shooting, has not given up hope.

Noting he was "terribly disappointed" by the state high court's ruling Monday, Frank Cremen said today he hoped for a better outcome when District Judge Joe Pavlikowski rules on another motion Mortensen filed for a new trial.

The motion before Pavlikowski says Mortensen should get a new trial because his lawyers did not know that a key witness who identified Mortensen as the gunman was caught selling methamphetamine before he testified.

The high court Monday, in its unanimous opinion written by Justice Deborah Agosti, said, "... the evidence demonstrates that two rogue police officers were engaged in unlawful activities that led to the tragic death of Daniel Mendoza. Both were clearly subject to criminal prosecution."

The fellow officer, Christopher Brady, who was driving his pickup at the time of the shooting, was not charged but was one of the main witnesses for the prosecution.

Brady has since pleaded guilty to federal charges of violating the civil rights of Mendoza and is awaiting sentencing.

In his appeal to the state's high court, attorneys for Mortensen claim Pavlikowski was wrong when he refused to admit as evidence prior bad acts of Brady.

Mortensen, according to the trial testimony, fired six shots from his Sig Sauer pistol. And Brady admitted he drew his .38 Taurus revolver but said he never fired. Mortensen contends Brady took his pistol and fired the shots.

Mortensen was convicted of first-degree murder with use of a deadly weapon and sentenced to two consecutive terms of life in prison without possibility of parole.

Mortensen's attorneys argued in his appeal that Brady's previous acts showed that he was the more likely gunman.

In one incident that occurred about one year before the shooting, Brady was investigated for allegedly pulling a gun on a motorist who refused to stop. He also reportedly knocked down a person who refused to leave a casino. Brady also allegedly put a gun to the head of a man who looked at him in a peculiar way, according to defense attorneys.

Mortensen contends those acts show a pattern of "hot-headed, impulsive and brutish behavior" by Brady to buttress the claim that Brady was the shooter.

Agosti wrote, however, that the law does not permit evidence of other crimes or wrongs to prove the character of a person to show those acts conformed with the instant case. The court said Mortensen was able to effectively cross-examine Brady and added, "Brady's prior acts do not exculpate Mortensen."

Mortensen claimed that Brady told him he fired the shots because he was "evil." Mortensen wanted to present other witnesses that would allegedly testify that Brady made those same comments before the shooting. The court said the outcome of the jury verdict probably would not have been changed.

Mortensen argued a new trial was warranted based on testimony by Officer Marc Barry before a federal jury after Mortensen was convicted. Barry testified that Brady "had mentioned several times the fact about going and doing a drive-by or something like that nature." Barry testified Brady made this statement about six different times, about a year prior to the Mendoza shooting.

Mortensen said this was newly discovered evidence, but defense lawyers and prosecutors were contacted by telephone during that trial about Barry. But Barry denied making these statements.

The court said, "We conclude that Barry's testimony regarding Brady's statements would not be such as to render a different result on guilt or innocence probable upon retrial. The only dispute over the identity of the person who fired the fatal shot was between Brady and Mortensen."

It said all the eyewitnesses testified the passenger was the shooter and Mortensen was the passenger. "Witnesses also provided physical descriptions of the shooter, which were consistent with Mortensen's appearance. It is also undisputed that the murder weapon was Mortensen's off-duty revolver.