Illegal confesssion claimed in appeal by convicted killer

Tuesday, Feb. 10, 2004 | 9:23 a.m.

CARSON CITY -- An attorney for death row inmate Steven Kaczmarek argued before the Nevada Supreme Court on Monday that Kaczmarek's conviction should be overturned.

Defense lawyer Paul Wommer claimed Kaczmarek's confession was illegally obtained. Kaczmarek exercised his Fifth Amendment right not to talk to Las Vegas detectives and he should have been provided an attorney, Wommer claimed.

But James Tufteland, a Clark County chief deputy district attorney, said Kaczmarek had no right to be provided an attorney until he was actually charged with the crime.

Kaczmarek, 34, was convicted of the drowning death of Pedro Villareal in a Las Vegas motel room in 2002. Tufteland said Villareal was bound, carried to the bathroom and drowned.

Co-defendant Alisha Burns, who was 15 at the time of the killing, pleaded guilty to second-degree murder and was sentenced to 10 years to life. The victim had expected to pay Burns $200 for sex.

Kaczmarek was in jail in Las Vegas charged with other offenses and had an attorney.

Detective Robert Wilson had gained information that jail inmates had allegedly heard Kaczmarek confess to the killing.

Wilson then went to interview Kaczmarek.

Wommer told the court that Kaczmarek agreed to talk to Wilson and another detective but wanted to wait for his lawyer. Wommer quoted Wilson as saying the detectives were busy that afternoon and Kaczmarek should tell him now what he wanted to say.

Kaczmarek then confessed. Wommer said that detectives kept talking to Kaczmarek even after he tried to invoke the Fifth Amendment.

Wommer said Kaczmarek should have been provided an attorney on the murder count.

Wommer also argued that the prosecution removed minorities from the jury because of their race. Although Kaczmarek is white, Wommer said that is still grounds for a new trial.

Wommer also argued that the daughter of the victim should have been allowed to testify at the penalty hearing.

Tufteland said Kaczmarek had no Sixth Amendment right to an attorney until the criminal charges were filed. He said the police were in the investigatory stage when they were talking to Kaczmarek and no charges had been filed.

Tufteland argued that those who were excused in preemptory challenges did not believe in the death penalty, and that race was not a factor in the case. He also claimed District Judge John McGroarty ruled correctly when he refused to allow the victim's daughter to make a statement at the penalty hearing opposing the death penalty.

The court took the arguments under submission and will rule later.