Death penalty not sought

The death penalty will not be sought against three men charged with the murder of Adam Wells.

District Attorney Noel Waters said a December 2004 ruling by the Nevada Supreme Court made it unconstitutional to seek the death penalty against a defendant charged under the felony murder rule if the only criteria for death is the same thing that elevated the charge from second-degree murder.

A killing can be charged as first degree if it happens during the commission of an underlying felony such as robbery, kidnapping or sexual assault.

Danny Shaw, Tyler Cruz and Juan Cervantes are all charged with first-degree murder under the felony murder rule.

In order to seek the death penalty, a prosecutor must find the facts of the case meet at least one of 14 criteria. Waters said the charges against Shaw, Cruz and Cervantes met only one criteria: They involved kidnapping, the same definition as the felony murder rule.

Waters said he reviewed the case with the Wells' family prior to giving notice he wouldn't seek the death penalty.

Shaw, 21, Cruz 24, and Cervantes, 20, are accused of luring Wells, 20, to Shaw's rental home on Stanford Drive on Oct. 5 and beating him with a bat and hammer before tying him up and eventually dumping his body off Brunswick Canyon Road.

All three have been charged with principal to open murder with the use of a deadly weapon, principal to kidnapping in the first degree with use of a deadly weapon, principal to battery with the use of a deadly weapon, conspiracy to commit kidnapping, accessory to a felony, conspiracy to commit a crime and destroying evidence. Shaw was additionally charged with unlawful use of marijuana. The three are being held without bail.

A preliminary hearing is set for Nov. 4

The only circumstances by which murder of the first degree may be aggravated and the death penalty sought are:

1. The murder was committed by a person under sentence of imprisonment.

2. The murder was committed by a person who has been convicted of another murder or a felony involving the use or threat of violence to the person of another.

3. The murder was committed by a person who knowingly created a great risk of death to more than one person by means of a weapon, device or course of action which would normally be hazardous to the lives of more than one person.

4. The murder was committed while the person was engaged, alone or with others, in the commission of any robbery, first-degree arson, burglary, home invasion or first-degree kidnapping and the person charged killed or attempted to kill the person murdered; or knew or had reason to know that life would be taken or lethal force used.

5. The murder was committed to avoid or prevent a lawful arrest or to effect an escape from custody.

6. The murder was committed by a person, for himself or another, to receive money or any other thing of monetary value.

7. The murder was committed upon a peace officer or fireman who was killed while engaged in the performance of his official duty or because of an act performed in his official capacity, and the defendant knew or reasonably should have known that the victim was a peace officer or fireman.

8. The murder involved torture or the mutilation of the victim.

9. The murder was committed upon one or more persons at random and without apparent motive.

10. The murder was committed upon a person less than 14.

11. The murder was committed upon a person because of the actual or perceived race, color, religion, national origin, physical or mental disability or sexual orientation of that person.

12. The defendant has, in the immediate proceeding, been convicted of more than one offense of murder in the first or second degree.

13. The person, alone or with others, subjected or attempted to subject the victim of the murder to nonconsensual sexual penetration immediately before, during or immediately after the commission of the murder.

14. The murder was committed on the property of a public or private school, at an activity sponsored by a public or private school or on a school bus while the bus was engaged in its official duties by a person who intended to create a great risk of death or substantial bodily harm to more than one person by means of a weapon, device or course of action that would normally be hazardous to the lives of more than one person.

- Contact reporter F.T. Norton at ftnorton@nevadaappeal.com or 881-1213.