Las Vegas Sun

March 28, 2024

Retarded suspect won’t face death penalty

The Las Vegas man charged with killing a prostitute and running over a state trooper during a high-speed chase won't face the death penalty after a District Court judge declared him mentally retarded.

In court documents obtained by the Sun, District Judge Lee Gates ruled that Vornelius Phillips "has significant limitations in adaptive functioning in at least two of the delineated skill areas."

In the July 2 ruling, which was made outside of court, Gates added that "the onset of the defendant's condition occurred prior to the age of 18."

The finding allows Phillips, 27, to avoid a possible death sentence, following a U.S. Supreme Court ruling last year and a state law passed this year preventing the mentally retarded from being put to death.

Phillips now faces a maximum sentence of life without the possibility of parole in the death of 40-year-old Ivy Shunstrom, a chase with police that followed and the eventual crash into Nevada Highway Patrol Trooper Robert "Bobby" Kintzel.

District Attorney David Roger saw the case as part of a larger trend in which defendants are using the court ruling and new law to challenge the death penalty.

It began with Thomas Nevius, 46, who was sentenced to death in a 1980 robbery and murder, one of the first defendants in Nevada to ask for clemency by claiming mental retardation, he said.

The state Board of Pardons commuted Nevius' death sentence in November 2002. The commutation was the first under the Supreme Court's ruling.

"Ever since (that case), we've seen several more defendants make similar claims to the court," Roger said. "I expect that this issue will surface much more frequently in future."

In addition to Phillips, Luis Barroso, 24, has made the claim of mental retardation after prosecutors said they were going to seek the death penalty. Barroro and Obed Marroquin are charged in the 2001 death of Tzatzi Sanchez, who was found strangled in her home.

Roger said he planned to meet today with Chief Deputy District Attorneys David Schwartz and Robert Daskas to discuss the state's next step in the Phillips case.

"We plan to sit down and review court transcripts to determine if an appeal is appropriate," he said.

Deputy Special Public Defender Alzora Jackson said jurors could return with an even lighter sentence for Phillips, who was charged with multiple felony counts, including murder with a deadly weapon, robbery and several kidnapping charges.

"Because he was also on drugs at the time, the jury may find something less than first degree," she said. "At this point he has nothing to lose."

Jackson added she was ecstatic about the ruling.

"When the state is so determined to execute a person regardless of their substandard mental functioning, it's a sad commentary on a civilized society," she said. Jackson said she does not believe that anyone should be subjected to the death penalty, particularly the mentally retarded.

Assembly Bill 15, which passed during the legislative session that ended June 1, defines the mentally retarded as people with "significant sub- average general intellectual functioning" that show up in their youth. Other state statutes cite an IQ level of 70 or lower as evidence of mental retardation.

Ron Cornell, founder of Families of Murder Victims, said proof beyond psychological tests should be required when determining whether or not a person is mentally retarded. Defense attorneys should be forced to provide years of school and work records, he said.

"I don't have a problem with not putting a mentally retarded person to death, but there has to be a history," said Cornell, who testified before the Legislature on the Assembly bill. "You don't just become mentally retarded overnight."

Jackson said it took doctors months to diagnose Phillips' mental state because they had to regulate his medication so that he could take a battery of psychological tests.

"He wasn't able to cooperate before," she said.

After Shunstrom's slaying, authorities allege Phillips hijacked a cab, then a sport utility vehicle to escape police. In the high-speed chase that followed, Kintzel was struck and critically injured while he was setting up metal road spikes to stop Phillips.

Kintzel, who is still recovering from several brain surgeries, could not be reached for comment. Jackson said she believes the severity of Kintzel's injuries were the driving force behind the state's decision to seek the death penalty.

"I personally believe that was their motivating factor," she said. "We're very sorry for him, but we think that's wrong. He is alive."

Nevada Highway Patrol spokeswoman Angie Wolff said the department was disappointed with the ruling, but hopes Phillips will spend the rest of his life in prison.

"We know that the district attorney's office still has a right to go for life in prison without parole, and we hope they will exercise that right," she said.

Gates' decision came after a contentious competency hearing in April in which defense and state witnesses gave dueling viewpoints on Phillips' mental state.

The new law states that in order to be declared mentally retarded, the defendant's intellectual functioning must "exist concurrently with deficits in adaptive behavior and be manifested during the developmental period," according to the bill.

In his ruling, Gates noted that "the defendant's IQ, as tested by the majority of the examining physicians, fell within the range delineated by the Supreme Court for mental retardation."

A person with an IQ of 70 or below is usually considered retarded. Phillips' IQ ranged from 66 to 75 on various tests, doctors testified.

The ruling also stated that "the only expert to find the defendant not retarded still determined that he had significant limitations in adaptive functioning."

Gates said he came to the decision after examining Phillips' medical records and listening to the testimony of doctors who testified for the state and the defense during the competency hearing.

Defense witness Dr. Thomas Kinsora, a clinical psychologist, testified that a battery of psychological tests he administered show Phillips is mentally retarded.

Phillips scored 66 on an overall IQ test, he said.

But Dr. Martha Bernal Mahaffey, a clinical psychologist who also evaluated Phillips, said he scored a cumulative IQ score of about 75 on her tests.

Besides Phillips' IQ, Mahaffey said, several other things show Phillips is not mentally retarded, including his ability to care for himself, communicate and work.

Phillips will appear before Gates on June 25. A trial date has not been set.

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