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Holmes v. State

Supreme Court of Nevada

August 22, 2013

Deyundrea Orlando HOLMES, Appellant,
v.
The STATE of Nevada, Respondent.

Page 416

Law Office of Richard F. Cornell and Benjamin D. Cornell, Reno, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Before PICKERING, C.J., HARDESTY and SAITTA, JJ.

OPINION

PICKERING, C.J.:

Appellant Deyundrea " Khali" Holmes appeals his conviction of first-degree murder and robbery. He argues that the fairness of his trial was compromised by the district court's erroneous admission into evidence of: (1) inflammatory rap lyrics Holmes wrote while in jail in California; (2) a coconspirator's out-of-court statement that Holmes " went off" and " just started shooting" ; and (3) unwarned statements that Holmes made to the Nevada detectives who interviewed

Page 417

him in California before his arrest. We reject these and Holmes's other assignments of error and affirm.

I.

Kevin " Mo" Nelson was a drug dealer who operated out of a recording studio in Reno, Nevada. Holmes plotted with Max Reed and others, including Jaffar " G" Richardson, to steal drugs and money from Nelson. The night of the robbery, Holmes and Reed went to the studio. No one was there, so Reed called Richardson, who regularly did business with Nelson, and asked Richardson to call Nelson and lure him to the studio on the pretense of a methamphetamine sale. Soon after Richardson made the call, Nelson arrived with a friend, Kenny Clark.

Two men wearing ski masks and black clothes (later identified as Holmes and Reed) accosted Nelson and Clark in the studio's parking lot. Nelson tried to fight them off. At one point the fight moved into Clark's SUV, where Nelson managed to stash his money and drugs under the passenger seat. In the fight, Nelson's pockets were " bunny-eared" (turned inside out). His assailant tore off Nelson's shirt and chain necklace, pistol-whipped him, and then tried to drag Nelson from the parking lot into the studio without success. Frustrated, Nelson's assailant removed his ski mask and said, " I'm going to shoot this f @# $ing guy," which he did. Nelson staggered, then fell and died. Clark managed to call 911 and flee.

The police investigated and took witness statements from Clark and other eyewitnesses, but could not initially identify the two assailants. They did find a fresh, unweathered cigarette butt near the scene, from which the crime lab extracted a DNA sample. But the sample did not produce a database match, so the case went cold.

Three years later, a routine database search matched the DNA from the cigarette to a sample Holmes gave California parole authorities. Nevada detectives traveled to California to interview Holmes at his parole officer's office. Holmes denied having been to Reno except once for " Hot August Nights" — Nelson was killed on a snowy November night. The detectives arrested Holmes and charged him with murder and robbery. While in jail awaiting extradition, Holmes wrote 18 rap songs, a stanza from one of which was admitted, over objection, at his trial.

The State presented its case through detectives, eyewitnesses, including Clark,[1] and various associates of Holmes and Reed. The evidence established that Holmes came to Reno from Oakland two months before, and vanished right after the crime. A young woman testified that she drove Holmes and Reed from her brother's house to Nelson's studio that night. After dropping them off, she waited for them, as requested, on a side street nearby. When Holmes and Reed returned, they were agitated and urged her to " go, go." On the ride back to the brother's house, Holmes kept muttering, " he wouldn't quit moving" ; she also overheard Reed place a cell phone call and say, " come get me, something [bad] just went down." The young woman's brother, who was on house arrest, testified that when his sister returned with Holmes and Reed, Holmes had a chain necklace wrapped around his hand and a cell phone, neither of which he'd had before. The brother also testified that he overheard Holmes call Richardson and say, " Man it's all bad, I need to get up out of here." Not long after, Richardson arrived, then left with Reed.

Richardson also testified. He did so pursuant to a plea agreement, under which he was convicted of, and served time for, conspiring with Holmes and Reed to rob Nelson, and other, unrelated crimes. Richardson was a generation older than Reed and Holmes. He testified that he, Reed, and Holmes had discussed robbing Nelson and that, at Reed's request, he called Nelson to lure him (and his cash and drugs) to the studio the night of the crime. According to Richardson, he went to the getaway driver's

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brother's house after the murder/robbery because Reed called, said that, " It went wrong," and asked to talk " face to face." Richardson then drove Reed past Nelson's studio to view the scene; police and ambulance personnel were still there when they drove by. In the car, Reed told Richardson that " Khali [Holmes] went off and he don't know what happened. Khali just started shooting him." Richardson also testified that the morning after the shooting, he drove Holmes to the Greyhound bus station and gave him money to leave town. Richardson testified that Holmes told him not to trust Reed.

The jury found Holmes guilty of robbery and first-degree murder, both with the use of a deadly weapon. Holmes timely appealed.

II.

We review Holmes's claims of evidentiary error under an abuse of discretion standard. Lamb v. State, 127 Nev. __, __ n. 7, 251 P.3d 700, 710 n. 7 (2011). " [I]n determining the relevance and admissibility of evidence," a district court's discretion is " considerable." Crowley v. State, 120 Nev. 30, 34, 83 P.3d 282, 286 (2004) (internal quotations omitted). A decision " to admit or exclude evidence will not be reversed ...


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