New death penalty hearing ordered for killer

Cy Ryan and Dan Kulin

Thursday, Dec. 19, 2002 | 11:20 a.m.

CARSON CITY -- Convicted killer Donte Johnson is off death row today and will get a new sentencing hearing, after the Nevada Supreme Court on Wednesday ruled some death sentences handed down by three-judge panels are invalid.

But the court upheld the death sentence for Lawrence Colwell Jr., saying Colwell's conviction was final because he pleaded guilty and waived his right to a jury trial.

Essentially, the courts ruling nullifies panel-issued death sentences in cases in which the appeals are still pending before the state Supreme Court, said JoNell Thomas, a defense attorney and board member of the Nevada chapter of the American Civil Liberties Union, which opposes the death penalty. Those cases would be sent to a jury to determine sentencing, she said.

"For older cases that have been pending for a while they won't get relief," Thomas said. "But generally cases a year or two old will get relief."

Thomas said the ruling will probably mean new sentencing hearings for three or four people on Nevada's death row.

The ruling also sets a precedent, Johnson's attorney, Deputy Special Public Defender Dayvid Figler said.

"No more three-judge panels," Figler said.

The court ordered a new penalty hearing for Johnson, who was sentenced to death for the 1998 execution-style murders of four men in Las Vegas.

Johnson was found guilty in the murders of Matthew Mowen, 19, Jeffrey Biddle, 19, Tracey Gorringe, 20 and Peter Talamantez 20. Two other men -- Sikia Smith and Terrell Young -- were convicted of murder and received life sentences in the case.

But the jury was unable to reach a verdict on whether Johnson should receive a life term or be sentenced to death.

A three-judge panel consisting of District Judges Jeff Sobel, Mike Griffin of Carson City and Steve Elliott of Reno was convened to replace the jury. They ruled the aggravating circumstances outweighed the mitigating circumstances and sentenced Johnson to death.

In ordering a new penalty hearing for Johnson, the state Supreme Court said the finding of aggravating circumstances and imposition of the death penalty by a three-judge panel when a jury deadlocks violates the ruling of the U.S. Supreme Court.

In a second decision Wednesday, the Nevada court upheld the death penalty for Colwell, who was convicted of murdering a 76-year-old man at the Tropicana in 1994.

In that case the court ruled that Colwell's conviction was final. The court said that Colwell pleaded guilty and waived his right to a jury trial.

The U.S. Supreme Court, in an Arizona case, said that juries, not a judge, must decide on the aggravating circumstances and the sentence in death penalty cases.

But the Nevada court, in interpreting the high court decision for state cases, said the U.S. Supreme Court ruling is not retroactive to overturn the death penalty for killers whose conviction has become final.

Gerald Gardner, chief criminal deputy in the state attorney general's office, said his office has worked with district attorneys in Las Vegas and Reno to rewrite the Nevada law to comply with the U.S. Supreme Court ruling. He said he will confer with prosecutors in rural areas of Nevada before anything is final.

Sixteen people on death row in the state were sentenced by a three-judge panel, Gardner said. Eleven of them pleaded guilty, waived their right to a jury and agreed to let the three judges sentence them.

The Nevada Supreme Court said those death penalties are valid because the individuals waived their right to a trial by jury.

Five killers on death row were sentenced by a three-judge panel after a jury deadlocked on the penalty. The Nevada court said those sentences would be invalid under the U.S. Supreme Court ruling.

However, death row inmates would not be entitled to a new penalty hearing by a jury if their convictions were final, Gardner said.

Gardner said a tentative proposal under review would make the three-judge panel available to those accused who want to go through the procedure. A person who entered a plea of guilty would have a choice of a jury or a three-judge panel.

If a jury deadlocked, the accused would have the option of choosing another jury or the panel, Gardner said.