Supreme Court overturns verdict in murder case

Wednesday, Dec. 20, 2000 | 9:58 a.m.

CARSON CITY -- The Nevada Supreme Court has overturned the first degree murder conviction of a Las Vegas gang member because the prosecution failed to provide crucial evidence to defense lawyers.

This is the fifth time this month the court has ordered new trials for Las Vegas killers because of errors committed during the trial.

In this case, Kevin L. Lay, a leader in the Piru Bloods gang, was convicted of the fatal shooting of Richard Carter, a member of a rival gang, in the parking lot of a fast-food market in June 1990. Lay was sentenced to life in prison without possibility of parole.

The court said Tuesday that prosecutor Robert Lucherini wrongly withheld information that might have helped defense lawyers in examining a key witness for the prosecution.

Paramedic Robin Giddens treated Carter in the parking lot after he was shot. As Carter lay dying, Giddens testified at trial that Carter talked to his brother and whispered to him, "K-Lay shot me, man, he shot me." K-Lay was the nickname of Lay.

Giddens did not put it in her paramedic report, and when she was interviewed several times prior to trial by Rita Brookins, a Clark County deputy district attorney, Giddens consistently said the victim had not made a dying declaration.

The last time Giddens was interviewed by Brookins was the day before she was to testify. The court said Lucherini then called Giddens into his office and shut the door.

"Lucherini had not done this with any other witness in the case," the court said.

About 15-20 minutes later, Lucherini summoned Brookins "because Giddens had recalled something," the court said.

Giddens then related that Carter had made a statement before he died, naming Lay as the assailant. That proved to be key evidence at the trial since Giddens was the only independent witness to the incident. But this information wasn't passed along to the defense before the trial.

After Lay was convicted, a hearing was held in District Court on his claims that the defense lawyers should have been told about Giddens' initial statements that she did not remember any dying declaration.

Giddens testified that she probably did not remember it because she had "spaced it, put it aside." And Lucherini, when asked why he did not inform the defense, said, "The defense had the ability to interview any of these witnesses."

The court said, "We conclude that even diligent investigation by the defense could not be expected to uncover prior inconsistent statements made to the state in this case."

The decision overturned the ruling of District Judge Michael Douglas, who declined to grant a writ of habeas corpus for Lay.

In other pretrial interviews, three witnesses identified another man named "Spike" as being in the back of the car and shooting out the window at the victim. This information was also given to Lucherini.

"He did not provide it to the defense, saying that 'Spike had already been ruled out as a suspect,' " the court said.

The court said, "Prosecutor Lucherini's claim that the evidence regarding Spike was unreliable was not a proper reason for him to withhold the information from the defense."

It appears, the court said, "Lucherini may have feared that if the defense received specific evidence of the existence of another shooter, it might develop reasonable doubt as to whether Lay was the actual killer and guilty of first-degree murder." The prosecutor, nevertheless, had a duty to disclose the evidence.