Killer of four could be center of death penalty test

Cy Ryan and Christina Littlefield

Tuesday, June 25, 2002 | 9:46 a.m.

CARSON CITY -- The case that court experts say will clarify the future of Nevada's use of the death penalty has been postponed while the lawyers involved study a U.S. Supreme Court ruling Monday that says juries, not judges, should decide when a death sentence is appropriate.

A hearing in the case of Donte Johnson, convicted of the 1998 execution-style slaying of four young men, was scheduled Wednesday before the state Supreme Court to allow his attorney Special Public Defender Dayvid Figler to argue that Johnson's sentence was unconstitutional. That hearing was rescheduled until fall.

"Realistically, Donte Johnson will be the test case," Chief Deputy Public Defender Curtis Brown said.

Johnson was found guilty by a jury, but it deadlocked in deciding whether Johnson should get the death penalty or a life sentence. A three-judge panel, which are used when a jury deadlocks or the defendant waives a jury, sentenced Johnson to death.

Johnson was found guilty of the killing of Matthew Mowen, 19, Jeffrey Biddle, 19, Tracey Gorringe, 20, and Peter Talamantez, 20. Their hands and feet were bound with duct tape and all were shot in the back of the head.

Two other men -- Terrell Young and Sikia Smith -- were convicted and sentenced to prison without the possibility of parole.

Figler has maintained that the three-judge panel that sentenced Johnson is unconstitutional, a position he said Monday the U.S. Supreme Court ruling confirmed.

"This ruling is so strong and so clear that the three-judge panel is now a thing of the past in Nevada," he said.

However, Nevada was not among the five states the court noted were wrong in their use of the death penalty.

In those states -- Arizona, Montana, Idaho, Colorado and Nebraska -- judges always make the decisions on the death penalty.

In addition to Johnson, the fate of 16 other death row inmates may be affected, the state attorney general's office says.

Gerald Gardner, chief of the criminal division of the attorney general's office, said some of those death cases could be reconsidered, but it was too early to tell the full impact.

Gardner said in some cases the jury may have decided on the aggravating circumstances but could not agree on the sentence. He said the three-judge panel may then be called.

Brown said he spent most of the day Monday reading the opinions in the case and trying to understand how it will affect his future clients. Brown serves in the major violators unit of the public defender's office, but he has never had a defendant go before a three-judge panel.

Brown said the opinion wasn't clear in whether juries have to hand down the sentence or merely find aggravating circumstances in the case. In Nevada, the jury must find aggravating circumstances that can override the mitigating circumstances to give the death penalty. Pescetta said that many of the six hung juries had met this requirement but could not decide on a sentence.

Brown suspects that the majority of the cases affected will be from seven to eight years ago, when more defendants plead guilty to murder and took their chances before the three-judge panel. He said lawyers stopped recommending this path to their clients after the majority of the panels gave the death penalty.

Lawyers will have to decide what to do in their individual cases.

Brown also said that some of the cases may be procedurally barred from being overturned because of where it is in criminal court or because they have already dried up their appeals.

The impact on cases within the system is unclear, but Brown is certain it will affect future legislation. A state sub-committee on the death penalty was already evaluating the three-judge panel.

"At the very least it will give guidance to legislatures on how to redraft legislation," Brown said.

District Attorney Stewart Bell said the future of a three-judge panel in Nevada "is not clear."

"The decision presents interesting questions, but it is just too early to tell what effect it will have on the death penalty in Nevada," Bell said.

Bell said there could be circumstances where a judges panel could still be used, such as in cases where jurors find more aggravating circumstances than mitigating circumstances but still cannot decide whether to issue the death penalty because they cannot determine the degree of the circumstances.

In such a case, Bell said, a three-judge panel could "be an option" if it were to accept the jury's findings on the aggravating circumstances outweighing the mitigating circumstances and go from there.

State Public Defender Steve McGuire called the Supreme Court ruling a "good decision," noting "It puts it in the hands of the jury where it should have been."

He agreed that if a defendant pleads guilty and waives his right to a jury trial, there is a question whether this ruling would apply.

It will now be up to those on death row to raise this issue in their appeals at the various courts to show they have been denied this right. McGuire said the state will try to argue the defendants have already waived their rights.

"Nothing is going to happen automatically," he said. It will be a case-by-case decision by the courts. Sun reporter

Ed Koch contributed to this story.