Defense argues defendant in bar slaying is brain damaged

Friday, Jan. 21, 2000 | 10:18 a.m.

Accused teenage killer Kenshawn Maxey was born to an 18-year-old prostitute, who eventually was slain, and a pimp who beat his son and caused him brain damage.

That is what Deputy Public Defender Kristina Wildeveld told a jury in District Judge John McGroarty's courtroom during opening statements Thursday in what will be a concentrated effort to save the 19-year-old from being put to death by the state.

But is Maxey guilty of slaying a bartender and accidentally killing an alleged accomplice during the May 1998 holdup at O'Aces Bar & Grill on Rainbow Boulevard? Wildeveld, in effect, told the 12 jurors and four alternates her client did it.

"The evidence will show Kenshawn is a follower ... is easily influenced," Wildeveld said, noting that although her client "participated," he did not do it intentionally or maliciously -- things the prosecution must prove. "This boy did what he was told."

The other defendant in the O'Aces killings, 20-year-old Artis Moore, already has been convicted of murder for his role as the getaway driver. He was sentenced to life in prison without the possibility for parole.

Deputy District Attorney David Schwartz also played the sympathy card during his opening statement -- sympathy for 25-year-old O'Aces bartender Salvatore Zendano.

After watching a female co-worker get hit in the head by a rifle butt during the robbery, Zendano grappled with one of the suspects, 18-year-old Lashawn Levi, Schwartz said. That fight wound up with both men dead of bullet wounds from rounds allegedly fired from the .40-caliber Glock semiautomatic pistol Maxey is accused of using.

"May 18, 1998, marked the end of the life of Sal Zendano -- today marks the trial of the man who brutally killed him," Schwartz said. "It is said that the taking of an innocent person's life is the ultimate crime. This defendant committed that ultimate crime."

If found guilty of killing Levi, Maxey faces just prison time. A conviction for killing Zendano could bring the death penalty from the jury.

It is that possibility that has prompted concern from groups such as Amnesty International, whose members have sent protest letters to the Clark County district attorney's office. The group says the death penalty would be a violation of a human rights treaty that prohibits capital punishment for those who commit crimes while under age 18.

Maxey also is charged with burglary, conspiracy to commit robbery, robbery, seven counts of kidnapping, second-degree murder and battery. Several of the charges include the phrase "with a deadly weapon," which enhances the penalties.

If Wildeveld and her co-counsel, Special Public Defender Peter Kohn, can show that Maxey is brain damaged, it could convince the jury to give him life in prison instead of death.

Wildeveld said Maxey's troubled boyhood included becoming a ward of the state by age 10. She indicated Maxey was traumatized by his mother's murder and that his father, who now is in prison on a drug conviction, beat him and gave him concussions. She said a doctor will testify that Maxey suffered brain damage.

Schwartz said evidence will show that the men conspired at a nearby apartment while unsuspecting soon-to-be-victims at O'Aces enjoyed breakfast and played video poker. He said each of the bandits was armed and that Maxey's weapon had a laser site.

Schwartz said the men were intent on "inflicting physical harm and death inside the O'Aces" and that Maxey ordered the bar patrons to the floor under threat of death.

When Zendano and Levi started fighting, Levi yelled for Maxey to shoot Zendano. Maxey fired six shots, five of which hit Zendano in the head, left arm, chest and back, Schwartz said, noting that the other bullet accidentally killed Levi.

Schwartz said police found $438 in loot in the car that Moore drove from the scene, leaving behind Maxey, who had gone back inside the bar to get the mortally wounded Levi. Maxey was arrested by Metro Police officers who had come to the restaurant, not in answer to a call about a robbery and shooting, but to eat breakfast, Schwartz said.

Earlier in the day, outside of the jury's presence, Kohn won an unusual pretrial motion that the prosecution be prohibited from using a laser pointer and instead use a wooden one that is provided by the court. He argued that use of a laser pointer could be prejudicial because his client is accused of using a gun with a laser site.

The prosecution argued that to point to exhibits across the room they would need a 20-foot wooden pointer.

"Call me old-fashioned, but I want you to use the (court's wooden) pointer," McGroarty said. "The laser is an issue."