Walker v. State, 893 P.2d 366

Walker v. State

893 P.2d 366 | Nev. | 1995

OPINION

Per Curiam:

This is an appeal from a judgment of conviction of murder with use of a deadly weapon pursuant to NRS 200.010, 200.030, and 193.165. Appellant Dannie Ray Walker was sentenced to life with the possibility of parole for murder in the first degree, plus a consecutive term of life with the possibility of parole for use of a deadly weapon. Because we conclude that insufficient evidence was adduced at trial to sustain the conviction, we reverse.

On August 6, 1990, at approximately 3:00 a.m., Paul Synagogue was shot and killed in the desert near the north side of 1204 Bailey Street in Las Vegas. Earnest Hines, the only witness to the shooting, testified that the shooter was wearing a green shirt and black pants or shorts. Hines did not see the shooter’s face, hear his voice, or otherwise describe the shooter, but believed that Walker shot Synagogue.

Identification of a suspect based solely upon the clothing that *499the suspect was wearing at the time of committing the crime may be a sufficient basis for conviction even where there are no other identifying characteristics. This court has held that identification based upon characteristics such as race, age, height, build and clothing may be sufficient for conviction. See Dias v. State, 95 Nev. 710, 601 P.2d 706 (1979), Matthews v. State, 94 Nev. 179, 576 P.2d 1125 (1978), and cases cited therein.

Here, however, we conclude that Hines’ identification of Walker as the shooter, where Hines identified Walker by the clothing Walker was wearing earlier that evening, was an insufficient basis upon which the jury could have concluded that Walker was guilty. Hines had also testified that the area in which the shooting took place was known to be territory of the Gerson Park Kingsmen Crip gang, and that members of this gang wear some combination of green and black clothing.

In addition, evidence was presented which indicated that Walker was elsewhere at the time of the shooting. Two witnesses testified that, before the shooting occurred, they saw Walker running in the opposite direction from where Synagogue was shot. One of those witnesses testified that he followed Walker to Walker’s girlfriend’s apartment and spent approximately an hour drinking beer with him there. Based upon the foregoing, we therefore reverse the judgment of conviction.