New trial sought in postal killing

Bill Gang

Thursday, Jan. 13, 2000 | 10:42 a.m.

As defense and prosecution attorneys argued before the Nevada Supreme Court about whether a disgruntled former postal worker who murdered a U.S. Postal Service official should get a new trial, it began to sound like a Catch-22.

Defense attorney Mace Yampolsky contended Wednesday that Charles Jennings did not get a fair trial because the prosecution changed its theory of the case mid-trial based on the defendant's own testimony about the deadly events.

Deputy District Attorney Bill Koot originally alleged the December 1997 slaying of James Brown, 59, was premeditated murder.

Yampolsky put Jennings on the witness stand to refute allegations that he had the legally necessary intent to kill Brown and explain that the death occurred as they struggled over the defendant's pistol in his car in the parking lot of the post office branch at 1001 E. Sunset Road.

Without an intent to kill, Yampolsky told a three-member high court panel, he hoped Jennings would be convicted of voluntary manslaughter or second-degree murder rather than first-degree murder. He conceded that realistically an acquittal of the 44-year-old defendant wasn't in the cards.

But based on Jennings' testimony that he waved his pistol at Brown to lure him to the car, Koot got permission from District Judge Donald Mosley in the middle of the trial to change his theory to so-called felony murder.

Nevada's felony murder rule states that if a person dies during the commission of certain felonies -- such as robbery, burglary, sexual assault or kidnapping -- it is automatically first-degree murder.

Waving the gun, Koot said, constituted kidnapping.

Yampolsky argued that Koot knew before the December 1997 trial that Jennings had raised his gun and should have announced the felony murder theory at that time.

He said that if Koot had pursued the felony murder course, then Jennings likely would not have testified.

Koot explained to the justices that the pretrial evidence he had did not reach the level to legally charge kidnapping, so he couldn't contend the slaying was felony murder.

The prosecutor agreed with Justice Bill Maupin that if he had announced the theory, Yampolsky likely would have challenged the effort in a pretrial motion and won -- until sufficient evidence surfaced when Jennings testified.

Koot said Jennings took his chances when he chose to tell his story and urged Maupin and Justices Nancy Becker and Miriam Shearing to uphold the conviction.

The Supreme Court is expected to hand down its decision in the next few months.

Brown's slaying occurred as Jennings was coming down from a four-day crack cocaine binge that had been precipitated by his failure to win back his job through the postal service's administrative appeal process, according to trial testimony.

Jennings had become despondent and suicidal because of his job woes and decided to seek revenge against Brown, who had represented the post office against him in his termination appeal, and two other supervisors.

He told a woman he spent a couple of days with before the murder that he intended to kill the postal officials, trial testimony said.