Court gives Vegas killer a new trial

Thursday, July 31, 2008 | 10:43 a.m.

Trial ordered in immigrant's killing (4-19-2005)

Nevada Supreme Court: Hernandez v. State

CARSON CITY -- A man sentenced to consecutive life terms in prison for a Las Vegas murder is going to get a new trial because of an error by District Judge Stewart Bell.

Emmanuel Hernandez was convicted by a jury of shooting Jose Gonzales four times in front of the Palm Hills Apartments in Las Vegas and the judge gave him two life terms with parole available in 40 years.

Katrina Grijalva, an eyewitness to the shooting, had testified in justice court in the preliminary hearing. And she was scheduled to be the first witness for the prosecution in the district court trial.

But she never showed up. Judge Bell granted the motion of the district attorney’s office to read the testimony from the preliminary hearing to the trial.

The Supreme Court, in its unanimous decision said, "The district court erred by admitting the preliminary hearing transcript without requiring the state to make further efforts to compel Grijalva’s attendance."

Justice James Hardesty, who wrote the decision, said the district attorney’s office offered no evidence on its efforts to get Grijalva’s attendance. Grijalva lived in Arizona and travel arrangements were made for her to fly to Las Vegas.

But she never appeared. One phone call was made to her residence in Arizona and a young girl answered, saying Grijalva was away on a family emergency.

“These minimal efforts do not justify the district court’s conclusion that no other means existed to procure Grijalva’s attendance,’’ said Hardesty who added the district attorney’s office failed to seek a continuance of the trial.

Deputy District Attorney Linda Lewis argued the error was harmless because there were other witnesses to tie Hernandez to the shooting. But Hardesty said Grijalva’s testimony showed that Hernandez was at the apartment complex before the shooting and was “lying in wait” for the victim.

The Supreme Court said Judge Bell erred when he agreed that a single telephone call after the witness failed to appear was a “reasonable exercise of diligence to procure a witness’s attendance.”

Hernandez, 23, is housed at the state prison in Ely.

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