Martin v. Gittere

1

WESLIE MARTIN, Petitioner, v. W.A. GITTERE,^[1] et al., Respondents.

No. 3:22-cv-101-LRH-CLB

United States District Court, D. Nevada

May 8, 2023

ORDER

LARRY R. HICKS UNITED STATES DISTRICT JUDGE

This habeas matter is before the Court on the merits of the remaining grounds^[2] of Nevada prisoner Weslie Martin's pro se federal habeas corpus petition brought under 28 U.S.C. § 2254 (ECF No. 6 (“Petition”)) Respondents' motion for enlargement of time (ECF No. 41) to comply with the Court's order directing Respondents to submit documents for in camera review (ECF No. 40) and Martin's request for sanctions (ECF No. 43). In 2019 a Nevada jury convicted Martin of 12 charges, arising from crimes that occurred in 2018 at the homes of celebrity Wayne Newton and his neighbor, for which Martin is sentenced to imprisonment for an aggregate of 271 to 768 months.^[3] (ECF No. 15-34 at 5.) The Petition alleges Martin's federal constitutional rights were violated because (1) the State unlawfully amended the indictment, (2) the state district court failed to replace defense counsel and denied him discovery, (3) there is insufficient evidence to support the convictions, and (4) police unlawfully searched his backpack. For the reasons discussed below the Court will grant Respondents' motion for enlargement of time to comply with the Court's order to submit documents for in camera review (ECF No. 41) nunc pro tunc, deny Martin's request for sanctions (ECF No. 43), deny the Petition (ECF No. 6), and deny a Certificate of Appealability (“COA”).

I. BACKGROUND^[4]

A. Attempted Burglary of Wayne Newton's Neighbor

Anthony Wilham testified he was the property manager for a home, belonging to Gokalp Bayramoglu, near Wayne Newton's residence. (ECF No. 39-16 at 57-58, 78-80.) The home was equipped with an alarm and a camera that, using a motion sensor, turned on a light and recorded activity if anyone went near the back patio door. (Id. at 59, 63, 68, 71.) Wilham was on vacation on June 2, 2018, when he received a call from the alarm company. (Id. at 64.) He said that “around 11:45 p.m., Vegas time,” he remotely accessed video for Bayramoglu's residence and “could see within the past few minutes there was activity on that back patio.” (Id. at 64, 67-71.) He immediately called 911 and reported there were people on the back patio with “bandanas on and covering the camera and stuff like that,” and police responded immediately. (Id.) He said the camera “lit up the area,” showed “them pretty well” and that “somebody had pushed the camera down trying to manipulate it” and eventually covered the camera. (Id. at 71-75.) He forwarded the video to police at “12:20 a.m. on June 3rd.” (Id. at. 70-71.) Wilham visited the property a couple of days after he returned from vacation and saw “slight damage,” i.e., “marks” on the back patio door, but he did not know when those marks occurred, and confirmed there was no evidence anyone gained access inside the home. (Id. at 77.) He said the video captured someone standing by the door, but he didn't see anyone mark it up. (Id. at 77-78.)

B. First Burglary at the Newton Residence

Angela D. Woodring testified she was a housekeeper for Wayne Newton in Las Vegas, Nevada. (ECF No. 39-16 at 21-22.) She said the Newtons were out of town on the night of June 2, 2018, and she left their residence between 7:00 and 8:00 p.m. (Id. at 22-25.) She said the Newtons had 8 or 9 dogs, including two large dogs (Rhodesian Ridgebacks) kept as “kind of” guard dogs, and all of the dogs stayed overnight in a special room on the ground floor, except for three “little white ones” who were free to roam the house. (Id. at 31-33.) She returned the following morning around 7:30 or 7:45 a.m., to find a “big hole” in the glass pane for the exterior door to the guest bedroom, so she called 911 and the Newtons. (Id. at 23-25, 27-28.)

Carson Wayne Newton testified he, his wife Kathleen, and their daughter, returned home immediately after receiving Woodring's call. (Id. at 82-83, 88-89.) He said that, in addition to the damage to the guest room door, the locked door to his master bedroom was kicked-in at six separate places. (Id. at 89-92.) He said the towel he kept on his personal safe in his closet so he could tell if it was “messed with by anybody” was also disturbed. (Id. at 96.) Wayne said the burglars stole his 22-caliber pistol (kept on a shelf in his closet). (Id. at 117-18.) Kathleen testified items taken from the house included: Two iPads, a Louis Vuitton backpack, a Louis Vuitton roller base, a Louis Vuitton duffel bag, a Hermes belt, a Gucci belt, Wayne's Corum bubble watch, another watch belonging to Wayne, some of her bracelets (including a diamond flag bracelet), and her aqua marine ring. (Id. at 137-38, 140, 143-50.)

Michael Hansen testified he received a call from the Newtons around 11:00 a.m. on June 3, 2018, reviewed their home surveillance video via remote access, and noticed the cameras detected activity on June 3, 2018, between “5:15, 5:30” and “7:15, 7:20 in the morning.” (Id. at 36-38.) Hansen said he emailed the video to police, and the video that provided the clearest details came from the camera stationed inside the house at the top of the stairs outside the master bedroom looking down the staircase. (Id. at 38-41, 46.)

C. Second Burglary at the Newton Residence

Wayne testified that after his show on the night of June 13, 2018, he, Kathleen, and their daughter, returned home, and his daughter immediately went inside the house, let the dogs out of the room off the garage, and took the elevator upstairs to get her puppy out of her bathroom, which was adjacent to the master bedroom, while Wayne and Kathleen stayed outside with the dogs.

(ECF No. 39-16 at 97-99.) He said his daughter “came running out of the house crying and screaming that there was somebody in [his] bathroom.” (Id. at 100, 152.) Wayne was carrying a firearm and went inside with his daughter, but while they waited for the elevator to take them upstairs, he heard Kathleen outside screaming, so he and his daughter ran back outside. (Id.) Hansen testified he provided police with video taken from the camera at the top of the stairs outside the master bedroom for the second break-in, which appeared to depict “two individuals” exit the upstairs bedroom and look “over the railing into the stairwell.” (Id. at 46-52.)

Kathleen testified that while Wayne and their daughter were inside the house, she waited outside with the dogs, and two men came out of the house “through a side window” outside the front door and ran toward her. (Id. at 152.) She said, “there was a taller, thin one, and he had a long silver metal long object that he had up,” and a duffel bag, and a “shorter” man holding something in his hand. (Id. at 153.) She said that as the taller man “was running out, he had [the long metal object] up in his hand, and as the men “were coming out,” her two Rhodesian dogs “ran at them” while barking and went after the men who proceeded to hit the dogs while “backing up.” (Id. at 153-54, 165-66.) She said the taller man hit the older dog with the long metal object while the shorter man beat the younger dog with the object in his hand until the younger dog went down crying and the shorter man ran away. (Id. at 154-55.) She said she screamed “Help, help, shoot him, shoot him,” and the taller man ran away, but dropped the duffel bag, returned to retrieve it, and then went over the property wall. (Id. at 156.) Kathleen agreed that she told police the burglars had their weapons in the air and her handwritten statement to police did not mention they threatened her with a crowbar or other metal object. (Id. at 167-72, 187-89.) On redirect examination, she said the weapons being raised toward her caused her to be fearful. (Id. at 184.)

Wayne testified that, when he reached Kathleen, she “was in hysterics and crying,” saying “they ran out through the window that they had broke out and when they saw [her], the one guy raised a pipe iron to hit her.” (Id. at 101.) Wayne said she told him, “‘shoot them, shoot them, [t]here they are, there they are,'” and “‘[h]e almost hit me with the pipe iron.'” (Id.) Wayne “ushered” Kathleen into the car, but she yelled, “‘shoot them, shoot them, shoot them,'” so he took “one shot in the air” hoping it would stop them. (Id. at 103.)

Las Vegas Metropolitan Police Department (“Metro”) police officer Alfred Garcia testified he responded to the scene of the second Newton burglary within 3 minutes of the police dispatch. (ECF No. 39-17 at 81-83, 98-99.) Garcia immediately met Kathleen and Wayne and described Kathleen as “crying, shaking” and said “[s]he was afraid to step out of the car. She was in the car the whole time,” and “[s]he was lost for words, she was stumbling over her words.” (Id. at 87.) Garcia did not recall whether Kathleen said she was threatened with a crowbar and agreed that it would be included in his report if she told him that, but it was not. (Id. at 91-92.) According to Garcia's report, Kathleen told him she saw the burglars after the dogs were barking and attacked them. (Id. at 94-95.) Metro police detective Ken Krmpotich, who arrived later and was the lead detective for the investigation, testified Kathleen told him “the guy lifted up the crowbar and the dogs attacked” and although she told him the crowbar was “raised,” Krmpotich did not recall her saying she was threatened with it. (Id. at 191-93, 207, 232, 234.)

Wayne testified the burglars gained entry by throwing a rock at a window next to the front door, which broke some of his antique chairs, and they attempted to open his safe with a tire iron. (ECF No. 39-16 at 106-09, 111-12.) Metro crime scene analyst Tabatha Paine testified she responded to the...