Death penalty hearing opens in murder case

Tuesday, April 26, 2005 | 9:45 a.m.

A jury began hearing testimony Monday to determine if a man convicted of tying up and killing, execution-style, four young men in August 1998 should be eligible for the death penalty.

Donte Johnson was convicted by a jury and sentenced to death row by a three-judge panel for the murders of Matthew Mowen, 19, Jeffrey Biddle, 19, Tracey Gorringe, 20, and Peter Talamantez, 20.

Johnson and two other men bound with duct tape the hands and legs of the victims and forced them to lay face down before killing them each with a single gunshot to the back of the head in a house the victims had rented together on Terra Linda Avenue in southeastern Las Vegas.

The Nevada Supreme Court, however, ordered a new penalty phase for Johnson after the U.S. Supreme Court ruled that only a jury could impose the death penalty. A three-judge panel had sentenced Johnson to death after the original jury could not agree on the penalty.

Under most circumstances a jury in a death penalty case would hear testimony from both the families of the victims and Johnson and be told of the defendant's criminal history, but for what is believed to be only the second time in Clark County's history District Judge Lee Gates has ordered that the penalty phase be conducted in two components.

First, the jury must decide if Johnson is even eligible to be considered for the death penalty.

The jurors have been instructed they are to weigh the aggravators in the case against the mitigating evidence presented. The prosecutors have already met the burden of providing an aggravator because Johnson was convicted of killing more than one person.

Unlike a jury deliberating about a person's guilt or innocence, a decision regarding death penalty eligibility does not have to be unanimous. Only one juror has to determine the mitigating evidence outweighs the aggravators for Johnson to avoid facing the death penalty.

If the jury does find Johnson is ineligible, they will return to court for more testimony and argument before deliberating on Johnson's fate, which would then be a choice between life in prison with the possibility of parole, life without the possibility of parole and a set term of 40 to 100 years in prison.

Gates ordered the same model for the penalty phase of Dante Pattison, who was convicted of murdering his sister and grandparents.

The jury determined Pattison was not eligible to be considered for the death penalty and ultimately sentenced him to life in prison without the opportunity for parole. Several of the jurors in the Pattison case were visibly disturbed when they heard of Pattison's lengthy criminal history, something they were not allowed to hear until after they had already decided the death penalty would not be a sentencing option.

On Monday Chief Deputy District Attorney Robert Daskas said the jury will hear how Johnson bragged about being the man who committed the murders and laughed about how "the blood that squirted from their heads was like the Niagara Falls."

Daskas said Johnson believed he "found an easy score" after meeting Mowen at a house where he was temporarily living after Mowen stopped by and talked about following the jam-band Phish during the Summer of 1998. The prosecutor said Mowen and his friends made money to continue following the band by selling food and drugs.

"The defendant (Johnson) believed they (the victims) had thousands of dollars in cash and a big stash of the drugs," Daskas said. "The seed had been planted, that this would be an easy score."

The prosecutor said Johnson went over to the victims' home with 24-year-old Terrell Cochise Young and 23-year-old Sikia Smith. After tying up the victims, Johnson, Young and Smith proceeded to turn the house upside down, never finding the money and drugs Johnson believed would be there.

Daskas said Johnson would later tell police he murdered Talamantez because he "disrespected" Johnson and he went on to kill Mowen, Biddle and Gorringe because they would all have been able to identify him as the man who killed Talamantez.

The prosecutor said after the murders Johnson, Young and Smith took a VCR, Sony Play Station and a couple of hundred dollars from the victims' wallets.

Daskas said the jury would hear testimony from Johnson's girlfriend who said after the murders Johnson came into the bedroom, kissed her on the cheek and said "you have to go to sleep after you kill somebody."

Johnson's attorney, Bret Whipple, said while there was no "excuse or justifiable reason for what occurred on Aug. 14, 1998" there were reasons the jury could show mercy and had the "right to choose life" for Johnson.

The defense attorney said Johnson's mother and father were drug addicts and he was raised with 12 other cousins by his grandmother causing Johnson to "slip through the cracks."

Whipple said Johnson has children who love him and want to continue their relationship with him, which would obviously not be possible if the death penalty is delivered.

Johnson's new penalty phase is expected to continue this morning.

Young and Smith were both sentenced to life in prison for their roles in the murders.

The Nevada Supreme Court, however, ordered a new trial for Young, saying District Judge Joseph Pavlikowski failed to addresses Young's contention that there was animosity and a lack of communication between the accused killer and his court-appointed lawyer Lew Wolfbrandt at the 1999 trial.

Young's new trial is scheduled before District Judge Nancy Saitta on Sept. 12.