08-25965

FILED
OCT 0 8 2008
GONZALO VILLALOBOS,
Appellant,
Case No. 48079
V.
THE STATE OF NEVADA,
Respondent.
RESPONDENT'S ANSWERING BRIEF
Appeal From Judgment of Conviction
Eighth Judicial District Court, Clark County
C. CONRAD CLAUS, ESQ.
Nevada Bar #006601
528 S . Casino Center Blvd., Ste. 207
Las Vegas, Nevada 89101
(702) 384-4927
DAVID ROGER
Clark County District Attorney
Nevada Bar #002781
Regional Justice Center
206 Lewis Avenue
Post Office Box 552212
Las Ve as, Nevada 89155-2212
(702) 6'7 1-2500
State of Nevada
CATHERINE CORTEZ MASTO
Nevada Attorney General
Nevada Bar No. 003926
100 North Carson Street
Carson City, Nevada 89701-4717
(775) 684-1265
OCT 8'2008
TMCtE w. LrhO&MAN
CLERK OF ""MME COURT
DENY CLERK
Counsel for Appellant
Counsel for Respondent
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08-35C1 Les
ORIGINAL
1
IN THE SUPREME COURT OF THE STATE OF NEVADA
2
3
4
5
GONZALO VILLALOBOS,
6
Appellant,
7
V.
8
THE STATE OF NEVADA,
9
Case No. 48079
Respondent.
10
11
RESPONDENT' S ANSWERING BRIEF
12
Appeal From Judgment of Conviction
Eighth Judicial District Court , Clark County
13
14
15
16
C. CONRAD CLAUS, ESQ.
Nevada Bar #006601
528 S. Casino Center Blvd., Ste. 207
Las Vegas , Nevada 89101
(702) 384-4927
17
DAVID ROGER
Clark County District Attorney
Nevada Bar #002781
Regional Justice Center
200 Lewis Avenue
Post Office Box 552212
Las Vegas, Nevada 89155-2212
(7^02) 671-2500
State of Nevada
18
19
CATHERINE CORTEZ MASTO
Nevada Attorney General
20
Nevada Bar No. 003926
100 North Carson Street
21
Carson City Nevada 89701-4717
(775) 684-1 265
22
23
24
25
26
27
Counsel for Appellant
Counsel for Respondent
28
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................................... ....ii
STATEMENT OF THE ISSUES ...................................................................................1
STATEMENT OF THE CASE ......................................................................................1
STATEMENT OF THE FACTS ....................................................................................2
ARGUMENT .................................................................................................................. 9
1.
THE STATE PROPERLY IMPEACHED DIRECT TESTIMONY
REGARDING DEFENDANTS CHARACTER ...................................... 9
II.
VILLALOBOS' NEW YORK INTERROGATION WAS
PROPERLY ALLOWED INTO EVIDENCE ........................................ 12
III.
A
Villalobos' Never Raised This Issue Prior to Trial ....................... 12
B
Villalobos' Never Indicated He Wanted An Attorney During
His Interrogation ...........................................................................14
C
Villalobos' Post-Miranda Statements Were Free and
Voluntary ......................................................................................17
DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF
COUNSEL .............................................................................................. 18
A
Defendant's Claims are Improperly Presented Before This
Court ............................................................................................. 18
B
Previous Counsel Was Effective ................................................... 19
CONCLUSION ............................................................................................................24
CERTIFICATE OF COMPLIANCE ...........................................................................25
CERTIFICATE OF MAILING .................................................................................... 26
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1
TABLE OF AUTHORITIES
2
3
Page Number:
Cases
Boehm v. State,
113 N ev. 910 , 944 P.2d 269 (1997) ...................................................................14
Boggs v. State,
N ev. 911, 604 P.2d 107 ( 1979) .....................................................................18
Colorado v. Connell ,
479 U . S . 1575 07 S. Ct. 515 (1986) ..................................................................17
CooDer v. Fitzharris
551 F.2d 1162 (9th Cir. 1977) ............................................................................ 20
Daniel v. State,
119 N ev. 498 , 78 P.3d 890 (2003)...... .................................................................. 9
Davis v. State,
107 Nev. 600, 817 P.2d 1169 ( 1991) ................................................................. 20
Davis v. United States,
,
, 114 S .Ct. 2350 ( 1994) ................................................................ 14
Dawson v. State,
TUgTev. 112, 825 P .2d 593 (1992) ...................................................................21
Doleman v State
112 Nev. 43 , 921 P.2d 278 ( 1996) ...................................................................20
Donovan v. State
94 Nev. 7'l, 584 P .2d 708 ( 1978) ..................................................................... 20
Ford v. State,
105 N ev. 850, 784 P .2d 951 ( 1989) ................................................................... 21
Gibbons v. State
t 520, 634 P .2d 1214 ( 1981) ...................................................................19
97 Nev.
Homick v State,
112 N ev. 304, 913 P.2d 1280 ( 1996) ................................................................ 20
Jackson v. Denno"
12,13
.
69, 84 S .Ct. 1774 ( 1964) .............................................................12,
Jackson v. Warden Nevada State Prison,
91 N ev. 430, 537 F.2d 473 (1975) .....................................................................19
James v. Illinois
PTU . S . 07, 110 S .Ct. 648 ( 1990) ..................................................................13
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Lenz v. State,
97 Nev. 65 , 624 P.2d 15 (1981) ......................................................................... 20
McMann v. Richardson,
397 U . S.
S.Ct. 1441 ( 1970) ...................................................................19
McNeil v. Wisconsin
U . S . 17 1 , 111 S.Ct. 2204 ( 1991) .................................................................14
McNelton v. State
115 ev. 396, 990 P .2d 1263 ( 1999) ................................................................. 21
Miranda v. Arizona,
384 U . S. 436 , 86 S. Ct . 1602 ( 1966) .................................................................. 18
Moran v. Burbine ,
475 U . S. 2, 106 S . Ct. 1135 ( 1986) ................................................................17
North Carolina v. Butler
441 U . S . 369 (1979) ...........................................................................................17
Old Aztec Mine Inc. v. Brown
ev. 49, 623 .
1 (1981 ) .................................... ................................. 19
Rowbottom v. State,
IUb N ev. 472,779 P .2d 934 ( 1989) ...................................................................18
Sanchez
103 Sevte 166, 734 P.2d 726 ( 1987)
State v. Love,
I U9 Nev. 1136, 865 P.2d 322 ( 1993) .................................................................19
State v. Rincon,
122 N ev. 1170 , 147 P.3d 233 (2006) ................................................................. 13
Strickland v. Washington,
466 U . S. 668 , 104 S.Ct. 2052 ( 1984) ........................................................... 19, 20
Stringer v. State,
IU8 N ev. 413 , 836 P .2d 609 ( 1992) ...................................................................18
Thompson v. State,
IU8 N ev. 74 ,838 P.2d 452 (1992) ...................................................................18
United States v. Restrepo
994 F.2d 173 t Cir.1993) ..............................................................................17
United States v. Scurlock
52 F.3d 531 (5 th ir.1995) ................................................................................17
Warden Nevada State Prison v. L yons
100 N ev. 430, 69TT-.2T5'04
4) ...................................................................19
Wilkins v. State,
96 Nev. 367, 609 P.2d 309 (1980) .....................................................................12
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1
Williams v. State,
113 Nev.
2
Statutes
3
NRS 48.055 ...............................................................................................................9,
9,11
4
NRS 48.055(1) ................................................................................................................9
5
NRS 48.045 (1)(a) ........................................................................................................... 9
945 P.2d 438 (1997) .................................................................18
6
7
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IN THE SUPREME COURT OF THE STATE OF NEVADA
GONZALO VILLALOBOS,
)
Appellant,
V.
Case No. 48079
THE STATE OF NEVADA,
Respondent.
RESPONDENT ' S ANSWERING BRIEF
Appeal from Judgment of Conviction
Eighth Judicial District Court, Clark County
STATEMENT OF THE ISSUES
1. Whether Improper Impeachment Evidence Was Admitted at Trial.
2. Whether Defendant's Fifth Amendment Rights Were Violated.
3. Whether Counsel was Ineffective.
STATEMENT OF THE CASE
On October 13, 2000, Gonzalo Villalobos was charged by way of Grand Jury
Indictment. After a series of continuances Villalobos proceeded to trial on May 23,
2006 and faced the following charges: Murder With Use of a Deadly Weapon (Felony
-NRS 200.010, 200.030, 193.165, 200.070, 202.287, 202.285); Attempt Murder With
Use of a Deadly Weapon (Felony - NRS 200.010, 200.030, 193.330, 193.165);
Battery With Use of a Deadly Weapon (Felony - NRS 200.481); and Discharging a
Firearm Out of a Motor Vehicle (Felony - NRS 202.287), committed at and within the
County of Clark, State of Nevada. 1AA 8.
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STATEMENT OF THE FACTS
2
During the early evening of July 16, 1998, Joey Cornell, 16, his sister Sarah
3
Cornell, 13, Joey's girlfriend Jennifer Miller, 16, and his mother, Dawn Cornell
4
returned to their home on 1511 Lucky Street, in Las Vegas, after eating dinner at the
5
Mexican restaurant Macayo's. 2AA 389-396. Dawn Cornell was engaged to a man
6
named Pat Aragon who lived near by. 2AA 392. After doing some chores at Dawn
7
Cornell's house on Lucky Street, the entire group went to Pat Aragon's house. AA
396-97. Soon after arriving at Pat Aragon's, Joey and Jennifer decided to leave and
visit their high school friend Ricky Plazola. 2AA 499. When the couple arrived at
Ricky Plazola's house they met up with two more high school friends named Brandon
Keen and Isaiah Rutherford. 2AA 500. Jennifer and Joey learned that Ricky and
Brandon were planning on robbing a nearby Subway Restaurant where Ricky used to
work. 2AA 500. Brandon and Ricky planned to meet Jennifer, Joey, and Isaiah back
at Dawn Cornell's house after the robbery since she was at Pat Aragon's house for the
evening and no one would be home. 3AA 501.
Jennifer dropped off Isaiah and Joey at Dawn's house and left because she was
upset Joey was going to be involved in the robbery. 3AA 502. Upon leaving she told
Joey to page her when he wanted her to pick him up. Id.
Meanwhile, Ricky and Brandon left Ricky's house on bicycles intent on
robbing the Subway sandwich shop. 3AA 627. Ricky was armed with a .45 semiautomatic hand gun. 3AA 589. Upon arriving at the Subway, the boys had a change
of heart and decided against following through with the robbery. 3AA 571. Instead
the pair rode their bicycles back to Joey's house. Id. When they arrived at Joey's
someone paged Jennifer to come pick them up so they could go back over to Ricky's
house. 3AA 572.
When Jennifer arrived, Joey, Brandon, Isaiah, and Ricky all piled into her red
Chrysler Acclaim. 3AA 737. Jennifer was in the driver's seat, Joey was in the front
passenger seat, Ricky was behind Joey, Brandon was in the back middle, and Isaiah
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was in the far left. 3AA 572.
While they were getting in the group saw Joey's
neighbor, Milton Cortez, and his then girlfriend, now wife, Sandra Trujillo getting
into his white Ford Mustang, and start to back out of their driveway directly across the
street. 3AA 504; 573; 629; 737.
Milton Cortez was Gonzalo Villalobos' 19-year old son.
He lived directly
across from the Cornell's on Lucky Street, with the Defendant, his mother, Maria
Villalobos, his six brothers and sisters, his girlfriend, and his son. 3AA 672.
A
history of animosity existed between the Cornell's and the Villalobos' because Milton
Cortez and his friend engaged in an illicit sexual relationship with Sarah Cornell and
her late step-sister, Linda Aragon. 2AA 393.
Linda Aragon was Pat Aragon's daughter. 2AA 392. Both Sarah Cornell and
Linda Aragon were 13 at the time the sexual relationship commenced and Milton
Cortez and his friend were 18. 2AA 393. Linda Aragon, was distraught over the
sexual relationship and committed suicide on May 20, 1998. 2AA 395.
On the day Linda Aragon committed suicide, Sarah Cornell felt compelled to
tell her brother Joey that Milton Cortez was having sex with her, and Milton's friend
had been having sex with Linda. 2AA 395. This confession ultimately resulted in
Milton being arrested later that same day for Sexual Seduction of a Minor. Id; 2AA
365. As a result the families became very angry with each other. 4AA 800.
Despite the animosity that existed between the two families, both groups of
people entered their respective cars without acknowledging the other group. 3AA
507.
Milton Cortez then backed out of his driveway and started driving north on
Lucky Street in front of Jennifer was, who was also headed that direction. 3AA 506.
After Milton Cortez had passed a couple of houses he pulled his car over to the side of
the road and waited for Jennifer to pass him before pulling behind her. Id. Jennifer,
who thought that was strange, pulled over her car to the side of the road and Milton
Cortez then passed her and stopped at the stop sign at the intersection of Lucky and
East Colorado Avenue and turned east. 3AA 508.
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Jennifer, because she was heading the same direction, also turned east onto East
Colorado Avenue. Id. Both cars, with Milton Cortez in front, and Jennifer Miller in
the rear, proceeded to the intersection of East Colorado and South Arden and stopped
at the stop sign there. Id.
At that point, everyone in the car noticed Villalobos' van coming at them
"swerving crazy" and flashing its lights at Jennifer's car, and pulling right up close to
them. 3AA 509. Everybody in the car was wondering what Villalobos' problem was.
3AA 604. Jennifer made an immediate left hand turn onto South Arden Street and
proceeded north towards East Charleston Blvd. Id.
However, Villalobos in his van
was "still right on" Jennifer and so she made an immediate right hand turn east onto
Arizona Street. Id. She took the corner too fast and was not able to hold the line.
3AA 510. Her momentum pushed her to the north side of Arizona Street where she
stopped the car facing east towards on coming traffic. Id.
Villalobos immediately pulled his van right next to the front passenger window
of Jennifer's car almost hitting it. Id. Joey, who was trying to get out, had to pull the
door closed because Villalobos almost took the door right off. 3AA 634.
At that
point Villalobos yelled, "ven acqi mother fucker" and started shooting at the teens
inside. 3AA 635. Joey was hit in the right part of his back with a hollow point bullet
which "went through the right lung, went through the heart, went through the aorta ...
and exited into the front chest." 2AA 427. Dr. Larry Sims, a licensed physician who
works for the Clark County Coroners Office, testified that the injury Joey sustained
was so lethal that "even if [he] had gotten shot in an emergency room, he probably
would not survive it." 2AA 431.
Ricky, who was still in possession of the .45 caliber semi-automatic handgun,
pulled it out and started shooting back after Villalobos had fired two shots at the front
passenger window. 3AA 244, 431, 575. Villalobos, realizing he was receiving return
fire, started shooting at Ricky in the rear left passenger seat. Id.
After firing two
shots at Villalobos Ricky's handgun jammed so he dropped it and tried to exit the
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opposite side of the vehicle but was unable to before being shot in the hip . 3AA 579.
Jennifer ran from the vehicle straight to the house closest to her the moment
Villalobos started shooting .
3AA 513. Nobody answered the door Jennifer was
knocking on and she turned around to see that Joey had crawled out of the car and was
lying face down on the sidewalk not moving. Id. At that point she started screaming.
Id.
Once Ricky got out of the vehicle he saw Joey on the ground bleeding out his
back. 3AA 579. Ricky made his way to Joey and started to apply pressure to the
wound when Villalobos put his van in reverse , exited the vehicle came around the side
of the car and yelled something at them in Spanish re-entered his van and took off east
on Arizona Street .
3AA 642.
Brandon, who had been shot in the leg, thought
Villalobos was coming to make sure they were all dead . 3AA 639. Ricky, while
lying on the ground told Brandon to hide the gun because he did not want to get in
trouble for having a gun. 3AA 642. Brandon hid the gun in a nearby trash bag and
later told the police where they could find it. Id.
Dawn and Sarah Cornell were waiting outside for Sarah ' s grandmother to come
pick up Sarah from Pat Aragon's house when they heard what they thought were
firecrackers. 4AA 796. When they heard tire's screeching and a girl start to scream
they ran toward where the gunshots had come from. Id.
While racing towards the
screaming, Dawn saw Villalobos driving his green van heading away from the
shooting. Id. She then found her son dead face down on the side of the road with
blood coming out his mouth . 4AA 797.
Villalobos, meanwhile , drove his car to the Palace Station Hotel and Casino
and threw the keys underneath the van. 4AA 952. Villalobos then escaped to his
native El Salvador for almost two years . 1AA 98; 4AA 852 . While there, Villalobos
obtained fraudulent identification in the name of Raphael DeJesus Pangua and reentered the country illegally. IAA 99. He had been in the country for three months
when he was finally apprehended . 1 AA 103.
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Once the detectives in Las Vegas were informed that Villalobos was captured
in New York, Detective John Mikolanis and Detective Rocky Alba traveled to the
Nasa County Jail to interrogate Villalobos.
4AA 840. During the interrogation
Villalobos was properly Mirandized and after talking with the detective insisted he
was only driving between two cars which were blocking the road when the two cars
started shooting at each other and he was merely caught in the crossfire. 1 AA 83.
Maria Villalobos, the Defendant's ex-wife, tried valiantly to provide testimony
which would exonerate the Defendant by stating that someone or something had saved
their lives.
4AA 878. But on cross-examination, Maria ended up implicating
Villalobos during the following exchange:
Q:
This object that flew by that saved your life, was it the green van
the defendant normally drove?
A:
If we were saved, it's because they let up on us and then they went
to follow the object that I'm telling you about. That's what saved
us.
Q:
What I'd like her to answer is that object the green van?
A:
It was a van.
Q:
Was it Gonzalo [sic] van?
A:
It was his pick-up that he was covering us, you know, he left the
house.
Q:
The only question I'm asking is is it Gonzalo's van?
A:
You know, if, if you were sitting there like I was with just over
exhausted or overbearing with this fire shots that are going on,
would you be remembering all these things that you're, the way
you're asking me?
Q:
Okay. Did that answer my question? Do you know or do you
not know if the object was the green van?
A:
Well, yes, the proofs are, you know, and I'm trying to tell you what
I know.
Q:
So the answer is yes, it is the green van?
A:
Yes, that it was there . Do you understand me?
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4AA 878-79. Villalobos' trial testimony also changed dramatically from his
2
interrogation in New York City. During cross-examination he testified he was resting
3
in his hammock at the back of his house and he heard screeching tires, so he got into
4
his van to see what that was all about. 4AA 946, 955. When he got to the corner of
5
Colorado Street and Lucky Street, Villalobos saw that there was a car following
6
Milton. Id. He stated further that he started to block the red car so that Milton could
7
go to work. 4AA 946-47. Then he told how the people in Jennifer's car got out guns,
at least two to three weapons from the car and started to shoot at him. 4AA 947, 968.
He then stated that he got shot at six times and only fired back in self-defense. 4AA
969. When Defendant was asked to explain why the police never found six bullet
holes in the car, Villalobos stated, "Undoubtedly when the police saw the car, the
damages had already been repaired logically." 4AA 973.
Further, on cross-examination, Villalobos admitted he had lied during his
interrogation in New York:
Q:
Are you uncomfortable talking about your statement in New York?
A:
Of course I am, first of all. And secondly, they did not know how
to interpret for me.
Q:
Is it because you told a bunch of false things to the police in New
York? Is that why you're uncomfortable with it?
A:
Uh, yes.
Q:
Because you told them you didn't own a gun, didn't you?
A:
Yes. Correct. Yes, I did say that.
Q:
And you told them that you hadn't used a gun?
A:
Correct.
4AA 978. Later, Villalobos admits to lying further about the stories he told
during the interrogation.
Q:
Did your statement to the police in - your statement to the police
in New York was full of lies, wasn't it.
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2
THE INTERPRETER: If the interpreter may interpret what defendant
said. That's where the are confusing everything and changing me that
saying that I'm guilty of everything. Yes, that's true.
Q:
It was full of lies, wasn't it?
A:
Of course it was.
4AA 981-82.
After closing arguments the jury deliberated and found the
Defendant guilty of the crimes of Count I - Second Degree Murder with Use of a
Deadly Weapon (Category A Felony), in violation of NRS 200.030, 200.010, 193.165,
Counts II, IV5 VI, VII and VIII - Attempt Murder with Use of a Deadly Weapon
(Category A Felony), NRS 200.010, 200.030, 193.330, 193.165; Counts IX-XIV Discharging Firearm out of a Motor Vehicle (Category A Felony), NRS 202.287.
5AA 1081-82.
On August 29, 2006, the Defendant, in addition to the $25.00 Administrative
Assessment Fee, $150.00 DNA Analysis Fee including testing to determine genetic
markers, and $12,000.00 Restitution, was sentenced to the Nevada Department of
Correction as follows: As to Count I - to life with the possibility of parole after
serving ten years, plus an equal and consecutive term of life with the possibility of
parole after serving ten years, to run consecutive to all other counts; as to Count II to a maximum of five years with minimum parole eligibility of two years, plus an
equal and consecutive term of five years with a minimum parole eligibility of two
years; as to Count IV - to a maximum of five years with a minimum parole eligibility
of two years, plus an equal and consecutive term of five years with a minimum parole
eligibility of two years, to run consecutive to Count II; as to Count VI - to a
maximum of five years with minimum parole eligibility of two years, plus an equal
and consecutive term of five years with a minimum parole eligibility of two years, to
run concurrent with Count IV; as to Count VII - to a maximum of five years with a
minimum parole eligibility of two years plus an equal and consecutive term of five
years with a minimum parole eligibility of two years, to run concurrent with Counts
IV and VI; as to Count X - to a maximum of five years with a minimum parole
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1
eligibility of two years to run concurrent with Counts IV, VI, and VIII; as to Count
2
XI - to a maximum of five years with a minimum parole eligibility of two years, to
3
run concurrent with Counts IV, VI, and VIII; as to Count XII - to a maximum of five
4
years with a minimum parole eligibility of two years, to run concurrent with Counts
5
IV, VI, and VIII; as to Count XIII to a maximum of five years with a minimum
6
parole eligibility of two years, to run concurrent with Counts IV, VI, and VIII; as to
7
Count XIV - to a maximum of five years with a minimum parole eligibility of two
years, to run concurrent with Counts IV, VI, and VIII; Counts VII and IX Dismissed; with 2224 days credit for time served. 5AA 1082-83.
The Judgment of Conviction was filed on September 6, 2006. The Notice of
Appeal was filed September 18, 2006.
The Appellant's Opening Brief was filed
September 5, 2008. The State responds accordingly.
ARGUMENT
I
THE STATE PROPERLY IMPEACHED DIRECT TESTIMONY
REGARDING DEFENDANTS CHARACTER
Defendant argues the district court erred in allowing the State to, impeach
Sandra Trujillo's testimony regarding the Defendant's character traits.
AOB 13-19.
This argument is meritless.
NRS 48.045(1)(a) is controlling. It provides that once a criminal defendant
presents evidence of his character or a trait of his character the prosecution may offer
similar evidence in rebuttal. NRS 48.055(1) provides that this evidence must be in the
form of reputation or opinion testimony and allows a party to test such testimony on
cross-examination by inquiry into the witness's knowledge of specific instances of
misconduct. Daniel v. State, 119 Nev. 498, 507-08, 78 P.3d 890, 899-900 (2003).
Here, Defense Counsel during cross-examination specifically put Villalobos'
character at issue when he asked Sandra Trujillo, Defendant's daughter-in-law, if
Defendant was a "nice guy." 3AA 717-18. The cross examination was as follows:
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Q:
Was there ever any problems that you know of between Mr.
Villalobos and the Cornells across the street?
2
A:
No.
3
Q:
Did he ever, did he ever have any fights, any words or anything
with any of those people?
1
4
No.
5
6
Q:
7
Was there anything at all that you ever witnessed that he had any
dealings with those people?
No.
Q:
Did you ever see him act as an arbitrator to try and put down fights
between them?
A:
No.
Q:
Okay. So as far as you know, did he know Joey?
A:
I don't know if - he must have seen him when he just used to live
there.
Q:
Do you know why he came out or why - well, you didn't see him
that night?
A:
No.
Q:
Is Mr. Villalobos a nice 2uy?
A:
Yes.
Q:
Does he ever have any problems with anybody?
No.
3AA 717-18.
Defense counsel ' s questions were designed to give the
impression to the jury that Villalobos' character did not conform to the charges
leveled against him.
Defense counsel ' s questions and the subsequent answers by
Sandra Trujillo were sufficient to open the door to the issue of Villalobos general
character such that the State could ask specific questions regarding his character and
whether Trujillo knew of specific acts which might change her mind . This is the exact
procedure contemplated by NRS 48.055 , to bring out relevant evidence that was in
direct contradiction to previous testimony . The state brought out that evidence by
asking the following questions:
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1
2
Q:
You said Mr. Villalobos is a nice guy . Has he ever been violent
before?
3
A:
No.
4
Q:
Okay. You weren 't aware of any of his past violence?
5
A:
No.
6
Q:
Would it change your opinion had you known?
MR. BUCHANAN:
I object to this. It's inadmissible.
THE COURT:
You put his character in evidence.
MR. BUCHANAN:
If she doesn 't know, how could she know?
THE COURT:
You get to ask basically if he has a reputation
or she has an opinion of him as to his character.
You just asked that . He then gets to test that by
using specific acts of conduct to see if she
knows or if it would change her opinion. That
objection is overruled .
Go ahead, Mr.
DiGiacomo.
Q:
So you weren 't aware that he shot somebody in 1992 in the chest?
A:
No.
Q:
Had you known that would it have changed your opinion as to
his character for violence?
A:
Well I' m just saying because the way when I know him the
way he treats his family and everything, that's why I'm saying he's
a nice person.
6AA 1059-60.
Here, the State did not admit any extrinsic evidence relating to
a collateral matter which would have required a Petrocelli hearing. Instead, the State
properly impeached the testimony elicited by defense counsel that Villalobos was a
nice guy. The court even noted its approval of the line of questioning when it gave
it's reasoning for overruling the objection when it stated:
You get to ask basically if he has a reputation or she has an opinion of
him as to his character. You just asked that. He then gets to test that by
using specific acts of conduct to see if she knows or it it would change
her opinion. That objection is overruled. Go ahead, Mr. DiGiacomo.
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1
3AA 718-19.
Therefore, because the State correctly impeached Trujillo's
2
character testimony regarding Villalobos by only inquiring if her opinion was based
3
on her knowledge that he had shot someone in the chest in 1992, which was only six
4
years prior to the shooting in this case, and the State did not admit any extrinsic
5
evidence, the Court did not err in allowing that line of questioning. Thus Villalobos'
6
due process rights were not violated and the Court's ruling on this matter should be
affirmed.
II
VILLALOBOS' NEW YORK INTERROGATION WAS PROPERLY
ALLOWED INTO EVIDENCE
Villalobos argues his New York interrogation was inadmissible because a post
hoc analysis of the transcript shows one of Villalobos' statements may have been a
request for an attorney. AOB 19-22. As a result of that statement, Villalobos argues
the court erred in admitting a record of his interrogation at trial. Id.
Villalobos'
argument is a misguided attempt to isolate a single statement and present it out of
context in the hope it will turn into something it is not.
Moreover, Villalobos'
argument is belied by the record as he validly waived his Fifth Amendment orally and
in writing when he agreed to talk to the Detectives.
A. Villalobos ' Never Raised This Issue Prior to Trial.
First, Defense Counsel failed to raise this issue prior to trial.
Before the
accused's statements are brought before the jury there must be a so-called "Jackson v.
Denno", 378 U.S. 368, 84 S.Ct. 1774 (1964) hearing in front of the judge outside the
presence of the jury. The burden to ask for such a voluntariness hearing is on the
defendant. See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980). Here, Defense
Counsel never objected to Villalobos' interrogation until it was actually played for the
jury whereupon Defense Counsel stated for the first time:
MR. BUCHANAN:
May I have another objection? Stop the tape,
please.
THE COURT:
Yes.
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1
(Whereupon, the tape was stopped.)
2
MR. BUCHANAN:
3
4
5
6
7
4AA 856.
On page , on page whatever that is three, now
he says if that s the way it will be , f have to get
one. He ' s now asking for an attorney and they
keep right on going and they says [sic], he'll
have to get one . And then what happens?
Nothing.
In response, the court made a finding and determined that Villalobos'
statements were voluntary.
THE COURT:
I'm not sure that's what that means but they in
the middle of page four, he says okay, do you
wish to talk to us now. And he says well,
depending on the questions you ask me. They
ask him certain questions. Apparently he's
willing to talk to them without an attorney. If
they ask him certain questions, he's willing to
talk to them now.
Id. This court has stated that a district court ' s findings of fact are entitled to deference
and will not be disturbed on appeal if they are supported by substantial evidence. See
State v. Rincon , 122 Nev. 1170, 1177, 147 P.3d 233, 238 (2006). Here, the court
reviewed the entire transcript in making a determination that the statement was given
voluntarily.
Moreover, the Defendant waived his objection to any Miranda violation during
the interrogation when he took the stand and testified. A confession taken in violation
of Miranda can be used to impeach the defendant if he testifies . James v. Illinois, 493
U.S. 307, 110 S.Ct. 648 (1990). Here, Villalobos' took the stand and allowed himself
to be impeached with his prior statements regardless of how those statements were
obtained.
Because Defense counsel failed to request a Jackson v. Denno hearing and
because the court found that Villalobos' statements were voluntary given after a
review of the evidence, and because Villalobos took the stand and opened himself up
for impeachment regarding those statements , this Court should give deference to the
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1
district courts ruling on the matter and find there was no error in admitting Villalobos'
2
interrogation into evidence.
3
B.
Villalobos ' Never Indicated He Wanted An Attorney During His
Interrogation.
This court has held that in order to "invoke the Fifth Amendment right to
counsel, the suspect must make known his wish for the sort of `lawyerly assistance'
contemplated by Miranda.
Thus, the suspect must make some statement that `can
reasonably be construed to be an expression of a desire for the presence of an attorney
in dealing with custodial interrogation by the police.'
If the police continue their
interrogation after a suspect has requested counsel, the suspect's statements are
presumed involuntary and are inadmissible as substantive evidence at trial, unless the
suspect initiates further communication with police." Boehm v. State, 113 Nev. 910,
915, 944 P.2d 269, 272 (1997) (internal citations omitted, emphasis in original).
Police officers have no obligation to stop questioning a suspect under Miranda
unless the suspect exercises the right to remain silent or makes an "unambiguous and
unequivocal" request for an attorney. Davis v. United States, 512, U.S. 452, 461-2,
114 S.Ct. 2350 (1994). A request for counsel must be, at minimum, "some statement
that can reasonably be construed to be an expression of a desire for the assistance of
an attorney." McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204 (1991).
During the New York interview, Villalobos was read and waived his Miranda
rights. lAA 68-70. The following interrogation was conducted with the aid of an
interpreter. Id. For ease, Villalobos' responses in Spanish have not been included,
only the English translation:
Detective Mikolanis :
Okay. First of all you have the right to remain
silent and refuse to answer any questions.
Villalobos :
That's fine.
Detective Mikolanis :
Anything you say can, may be used against you
in a court of law.
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1
2
Villalobos:
I know.
Detective Mikolanis:
You have the right to consult with an attorney
at any time and have the attorney present before
and during questioning.
Villalobos:
That's fine.
Detective Mikolanis:
What was the answer?
(Translator):
It's okay.
Detective Mikolanis:
Okay. If you can not afford an attorney one
will be provided if you de ... so desire prior to
any questions.
Villalobos:
Well I'll see about that when we're in Las
egas•
(Translator):
What?
Villalobos:
We'll see about that when I'm in Las Vegas.
Detective Mikolanis:
Okay. You have the right to stop answering
questions at any time and have an attorney
present.
Villalobos:
That's the way it'll be. I'll have to get one.
Detective Mikolanis:
Oka, do you understand each of these
rights I have explained to you?
Villalobos:
Yes I understand them.
Detective Mikolanis:
Is that a yes?
(Translator):
Yes.
Detective Mikolanis:
Okay. Do you wish to talk with us now?
Villalobos:
Depending on the questions that you ask me.
Detective Mikolanis:
Okay. Okay. Mr..Villalobos right now I'm
going to have you sign your Miranda warning
in your own signature.
Villalobos:
That's fine.
3
4
5
6
7
l AA 68-70. Villalobos was given a card also that was both in English and
Spanish which informed him of his rights.
Id.; 4AA847. Defendant indicated he
wanted to waive his rights and speak to the investigators . Id.; 4AA 847. During trial,
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Defense Counsel argued this same issue, to which the Court as also quoted above,
responded:
I'm not sure that's what that means but they in the middle of page four
he says okay, do you wish to talk to us now. And he says, well
depending on the questions you ask me. They ask him certain questions.
Apparently he's willing to talk to them without an attorney. If they ask
him different questions, he's willing to talk to them now.
4AA 856. Putting Villalobos' statements into the context from which they were
made reveals he waived his Fifth Amendment rights and did not request an attorney
be present during the interrogation. Instead he expressed a desire to only get an
attorney in the future when he stated he would "see" about getting an attorney when
he arrived in Las Vegas. lAA 69. A statement indicating a future intent to be
represented is not a statement indicating a present intent to have counsel present
during the interrogation. Defendant reiterated his intent to have counsel present for
future proceedings in Las Vegas when he said virtually the exact same thing when
asked to clarify his answer by the interpreter. Id.
Next, when Villalobos was informed he had the power and ability to stop the
interrogation at any time and request an attorney, he states, "That's the way it'll be.
I'll have to get one." Id. That statement, read in the context of the previous
statements, certainly could not reasonably be construed to be an expression of a desire
for the presence of an attorney in dealing with custodial interrogation by the police.
The reason being that, again, the statement "I'll have to get one" relates Villalobos'
desire to get an attorney in the future when he arrived in Las Vegas.
This interpretation is buttressed by Villalobos' response to the Detective's
question of whether he wished to talk. The Defendant conditionally waived his Fifth
Amendment rights and stated he would participate in the interrogation, "Depending on
the questions that you ask me." l AA 70. By stating he was going to selectively
answer the Detective's questions, Defendant exhibited his understanding that he was
under no obligation to answer any of the Detective's questions. It also demonstrated
that Defendant knew he could halt the interrogation at any time and request an
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1
attorney. Rather than exercising those rights, Villalobos consciously waived his Fifth
2
Amendment rights, and only expressed a desire to obtain a defense attorney when he
3
arrived in Las Vegas.
4
examination when the prosecutor asked him, "Didn't you tell the police that you
5
might get an attorney depending on what happens?" To which he responded, "Here in
6
Nevada, yes." 4AA 979. For the above stated reasons, Villalobos' statements cannot
7
be reasonably construed to be an unambiguous and unequivocal expression of a desire
Villalobos even admitted as much when under cross-
for the presence of an attorney in dealing with his custodial interrogation.
C. Villalobos ' Post-Miranda Statements Were Free and Voluntary
During Defendant's interview he voluntarily waived his rights. In Moran v.
Burbine, 475 U.S. 412, 106 S. Ct. 1135 (1986), the United States Supreme Court set
out that relinquishment of the right to remain silent must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than intimidation,
coercion or deception and the waiver must have been made with a full awareness both
of the nature of the right being abandoned and the consequences of the decision to
abandon it. A confession is voluntary if, under the totality of the circumstances, the
statement is the product of the accused's free and rational choice . See also, United
States v. Restrepo, 994 F.2d 173 (5th Cir. 1993); United States v. Scurlock, 52 F.3d
531 (5th Cir. 1995).
In the United States Supreme Court decision in Colorado v. Connelly, 479 U.S.
157, 107 S. Ct. 515 (1986), it is clear that the primary and major factor in assessing
whether a statement is voluntary focuses on the presence or absence of police
coercion or abuse and not on the subjective state of mind of the person making the
statements. In the case of North Carolina v. Butler, 441 U.S. 369 (1979), the Supreme
Court said:
An express written or oral statement of waiver of the right to remain
silent or of the right to counsel usually is usually strong proof of the
validity of that waiver but is not inevitably either necessary or sufficient
to establish a waiver. Fhe question is not one of form, but rather whether
the defendant in fact knowingly and voluntarily waived the rights
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delineated in the Miranda case... at least in some cases waiver can be
clearly inferred from the actions and words of the person interrogated.
441 U.S. at 373.
In determining whether a confession is the product of free will, the State of
Nevada employs a totality of the circumstances test.
The trial court's decision
regarding voluntariness is final unless such a finding is plainly untenable. Williams v.
State, 113 Nev. 1008, 945 P.2d 438 (1997); Thompson v. State, 108 Nev. 749, 753,
838 P.2d 452 (1992); Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 109 (1979).
When a defendant is fully advised of his Miranda rights and makes a free,
knowing, and voluntary statement to the police such post-arrest statements are
admissible at trial.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966);
Stringer v. State, 108 Nev. 413, 836 P.2d 609 (1992); Rowbottom v. State, 105 Nev.
472, 779 P.2d 934 (1989). The State must prove the voluntariness of a confession by
a preponderance of the evidence. See Sanchez v. State, 103 Nev. 166, 170, 734 P.2d
726, 728 (1987).
Here, Detective J. Mikolanis Mirandized Villalobos before asking any
questions of him. 1 AA 67.
Villalobos voluntarily stated he would answer the
Detectives questions, depending on what those questions were.
IAA 70. The
Defendant even signed a card acknowledging that he understood his rights and
willingly waived them.
Id.
The State submits that from a totality of the
circumstances perspective, Defendant was fully advised of his Miranda rights and
freely, knowingly and voluntarily agreed to make a post-arrest statement to the police.
Thus, the court did not err in admitting the transcript of Defendant's interrogation into
evidence.
III
DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL
A. Defendant 's Claims are Improperly Presented Before This Court.
This Court will normally decline to review claims of ineffective assistance of
counsel on direct appeal unless an evidentiary hearing has been held in the district
court. Gibbons v. State, 97 Nev. 520, 523, 634 P.2d 1214, 1216 (1981). The "more
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1
appropriate vehicle for presenting a claim of ineffective assistance of counsel is
2
through post-conviction relief."
3
Court's policy of declining to review factual issues that have neither been raised nor
Id.
Such a conclusion is harmonious with this
determined before a district judge. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49,
623 P.2d 981 (1981).
No such petition has been filed in the present case. Defendant is attempting to use
this appeal to argue an issue that has never been brought before, or decided by the
lower court. Thus, this court should deny this claim at the outset because it is more
properly suited for a Post-Conviction Writ of Habeas Corpus.
B. Previous Counsel Was Effective
In order to assert a claim for ineffective assistance of counsel a defendant must
prove that he was denied "reasonably effective assistance" of counsel by satisfying
the two-prong test of Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct.
2052, 2063-64 (1984). See also State v. Love, 109 Nev. 1136, 1138, 865 P.2d 322,
323 (1993). Under this test, the Defendant must show first that his counsel's
representation fell below an objective standard of reasonableness, and second, that but
for counsel's errors, there is a reasonable probability that the result of the proceedings
would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. at 2065,
2068; Warden, Nevada State Prison v. Lyons, 100 Nev. 430, 432, 683 P.2d 504, 505
(1984) (adopting Strickland two-part test in Nevada). "Effective counsel does not
mean errorless counsel, but rather counsel whose assistance is `[w]ithin the range of
competence demanded of attorneys in criminal cases."' Jackson v. Warden, Nevada
State Prison, 91 Nev. 430, 432, 537 P.2d 473, 474 (1975),auoting McMann v.
Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449 (1970).
In considering whether trial counsel has met this standard, the court should first
determine whether counsel made a "sufficient inquiry into the information that is
pertinent to his client's case ." Doleman v State, 112 Nev. 843, 846, 921 P.2d 278, 280
(1996); citing Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066.
Once such a
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reasonable inquiry has been made by counsel, the court should consider whether
counsel made "a reasonable strategy decision on how to proceed with his client's
case." Doleman, 112 Nev. at 846, 921 P.2d at 280, citing Strickland, 466 U.S. at 690691, 104 S.Ct. at 2066. Finally, counsel's strategy decision is a "tactical" decision and
will be "virtually unchallengeable absent extraordinary circumstances." Doleman, 112
Nev. at 846, 921 P.2d at 280; Howard v. State, 106 Nev. 713, 722, 800 P.2d 175, 180
(1990); Stricklan d, 466 U.S. at 691, 104 S.Ct. at 2066.
Based on the above law, the court begins with the presumption of effectiveness
and then must determine whether or not the defendant has demonstrated by "strong
and convincing proof' that counsel was ineffective. Homick v State, 112 Nev. 304,
310, 913 P.2d 1280, 1285 (1996), citing Lenz v. State, 97 Nev. 65, 66, 624 P.2d 15,
16 (1981); Davis v. State, 107 Nev. 600, 602, 817 P.2d 1169, 1170 (1991). The role
of a court in considering allegations of ineffective assistance of counsel is "not to pass
upon the merits of the action not taken but to determine whether, under the particular
facts and circumstances of the case, trial counsel failed to render reasonably effective
assistance." Donovan v. State, 94 Nev. 671, 675, 584 P.2d 708, 711 (1978), citing
Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977).
This analysis does not mean that the court "should second guess reasoned
choices between trial tactics nor does it mean that defense counsel, to protect himself
against allegations of inadequacy, must make every conceivable motion no matter
how remote the possibilities are of success." Donovan, 94 Nev. at 675, 584 P.2d at
711. In essence, the court must "judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the time of counsel's
conduct." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
"There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the
same way." Strickland, 466 U.S. at 689, 104 S.Ct. at 689. "Strategic choices made by
counsel
after
thoroughly investigating the
plausible
options
are
almost
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1
unchallengeable." Dawson v. State, 108 Nev. 112, 117, 825 P.2d 593, 596 (1992),
2
citing Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; see also Ford v. State, 105 Nev.
3
850, 853, 784 P.2d 951, 953 (1989).
4
Even if a defendant can demonstrate that his counsel's representation fell below
5
an objective standard of reasonableness, he must still demonstrate prejudice and show
6
a reasonable probability that, but for counsel's errors, the result of the trial would have
7
been different. McNelton v. State, 115 Nev. 396, 403, 990 P.2d 1263, 1268 (1999),
citing Strickland, 466 U.S. at 687.
"A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id., citing Strickland, 466 U.S. at
687-89, 694.
In his brief, Defendant argues that in the event "defense counsel opened the
door to the state's be [sic] allowed to represent to the jury that the defendant had shot
someone, trial counsel had a valid objection to this questioning." AOB 22.
He
continues, that "Mr. Villalobos was found guilty of only carrying a concealed weapon;
it does not automatically follow that the state could prove by clear and convincing
evidence that he shot someone ... [n]ot articulating this valid objection, and allowing
this evidence in, cannot be considered sound strategy." AOB 23.
Yet counsel fails to inform this court that Trial Counsel did discuss this matter
with the court, and objected to it being presented.
After the Court had advised
Defendant of his right to testify and not to testify on the record, Defense counsel
stated:
MR. BUCHANAN:
I just hope the State doesn't have something
that I don't know. I mean, my records show
that they don't have.
THE COURT:
I have to read this in every trial.
MR. OWENS:
In fact, we do, and we need to take a look at
that because in light of the opening statement,
that may have become relevant.
THE COURT:
Well, you and Mr. Buchanan work it out.
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MR. BUCHANAN:
What do they have as far as his background? I
don't, my knowledge he doesn't have any
felony.
THE COURT:
Well, it has to be a prior felony conviction.
MR. OWENS:
Well, this would be more of Petrocelli prior act,
relevant act.
5
MR. BUCHANAN:
But that was a jzross.
6
MR. OWENS:
Well, it may have been but -
7
MR. BUCHANAN:
It wasn't a felony.
THE COURT:
Well, I mean you have to have a Petrocelli
hearing in order for the State to introduce an
unrelated bad act in their case-in-chief. You do
not have to have a Petrocelli hearing in order to
use something sometimes to cross-examine
him, but you can't ambush Mr. Buchanan. You
need to tell Mr. Buchanan what it is and talk
about it and -
MR. DIGIACOMO:
THE COURT:
Well, he's aware of it. Obviously he just said
in 1992 convicted of a crime.
After we finish today and send the jury home,
we'll find out whether it's usable in crossexamination.
MR. BUCHANAN:
All right. I know what it is. I'm not ignorant
about this, but I'm saying it's not a felony.
1
2
3
4
2AA 440-442. Later, during redirect of Villalobos' daughter-in-law, Defense
Counsel objected to the state's questions regarding Defendant's past crimes as being
inadmissible. 6AA 1059-60. Thus, Defendant's argument that Defense counsel was
ineffective as a matter of law is entirely erroneous. As discussed above, the State did
not admit any evidence of extrinsic bad acts. Instead, they merely asked Sandra
Trujillo if she was aware of Defendant's prior criminal activity.
Thus, Defense
Counsel could only have objected if the State tried to admit extrinsic evidence of prior
bad acts, which would have required a Petrocelli hearing. Because that was not the
case, Defendant's argument fails.
Villalobos' claim of ineffective assistance of counsel must fail for several
reasons. First, the claim is procedurally improper as this is the wrong forum to bring
this claim. Second, Villalobos' claims of ineffective assistance are not based on what
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actually happened at trial , i.e., the State never admitted extrinsic evidence of prior bad
2
acts, and trial counsel stated he knew his client ' s previous record and objected to his
3
convictions being admitted as evidence without a Petrocelli hearing.
4
Third, Villalobos has failed to demonstrate that but for counsel opening the door for
5
character evidence to come in, the result of the trial would have been different.
2AA 440-42.
6
The State provided substantial evidence that Villalobos was the person
7
responsible for committing all the crimes he was charged of. There were numerous
eyewitnesses who saw him commit the crime, and their testimony corroborated the
facts of the case . Because there was such overwhleming proof of Villalobos ' guilt, he
cannot now rationally blame his trial counsel for the guilty verdict he received. The
result would have been no different without any alleged errors.
Because this issue is better brought in a Post-Conviction Petition for Writ of
Habeas Corpus, and because Defendant has failed to demonstrate that his
representation fell below an objective standard of reasonableness as a matter of law,
and Villalobos has failed to demonstrate any prejudice , this Court should deny this
claim.
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CONCLUSION
WHEREFORE, in light of the foregoing, the State respectfully requests that
Defendant's Judgment of Conviction be AFFIRMED.
Dated this 6th day of September, 2008.
Respectfully submitted,
DAVID ROGER
Clark County District Attorney
Nevada Bar # 002781
BY
STEVEN S- OWENS
Chief Deputy District Attorney
Nevada Bar #004352
Office of the Clark County District Attorney
Regional Justice Center
200 Lewis Avenue
Post Office Box 552212
Las Ve g as, Nevada 89155-2212
(702) 6 1-2500
7
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R"RIEFS\ANSWER\VJLLALOBOS, GONZALO, 48079, C170674 RESP.S ANSW
.BRF..DOC
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CERTIFICATE OF COMPLIANCE
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I hereby certify that I have read this appellate brief, and to the best of my
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knowledge, information, and belief, it is not frivolous or interposed for any improper
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purpose. I further certify that this brief complies with all applicable Nevada Rules of
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Appellate Procedure, in particular NRAP 28(e), which requires every assertion in the
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brief regarding matters in the record to be supported by appropriate references to the
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record on appeal. I understand that I may be subject to sanctions in the event that the
accompanying brief is not in conformity with the requirements of the Nevada Rules of
Appellate Procedure.
Dated this 6th day of September, 2008.
DAVID ROGER
Clark County District Attorney
Nevada Bar #002781
BY
Chief Deputy. District Attorney
Nevada Bar #004352
Office of the Clark County District Attorney
Regional Justice Center
200 Lewis Avenue
Post Office Box 552212
Las Vegas, Nevada 89155-2212
(702) 671-2500
I:\APPELLATE\WPDOCS\SECREZXY RIEFS\ANSWER\VILLALOBOS, GONZALO, 48079, C170674 RESP.-S ANSW.BRF..DOC
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CERTIFICATE OF MAILING
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I hereby certify and affirm that I mailed a copy of the foregoing Respondent's
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Answering Brief to the attorney of record listed below on this 6t' day of September,
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2008.
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C. CONRAD CLAUS ESQ.
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528 S. Casino Center blvd., Ste. 207
Las Vegas, Nevada 89101
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Employee, Clark County
District Attorney's Office
SSO/Nickolas Graham/ed
I:\APPELLATE\WPDOCS\SECRETAKY\BRIEFS\ANSWER\VILLALOBOS, GONZALO, 48079, C170674 RESP .'S ANSW. BRF..DOC