Photo by Bill HusaGayle Farley sobs quietly at her home in Carson City while going through family photos of her daughter Kellie Parry who was killed October 1999.
A Reno man convicted last year of murdering the daughter of Carson City realtor Gayle Farley will get a new trial, the Nevada Supreme Court ordered Tuesday.
On a 4-3 vote, the court overturned the murder conviction of Brandon Douglas Allan, saying he was unlawfully restricted in the testimony he could give during his trial.
Since the murder of her daughter, 23-year-old Kellie Parry, in October 1999, Farley has pushed prosecutors not to accept a second-degree murder conviction, and pursued legislative changes to prevent similar incidents.
Upon hearing the news Tuesday evening, a heartbroken Farley vowed to continue her pursuit.
"I will fight this until he dies," she said. "I knew they all appealed to the Supreme Court, but I couldn't imagine he would be successful."
Parry, who once dated Allan, was found dead in Allan's Sun Valley home from an apparent .50-caliber gunshot wound to the back. Allan, who has claimed the shooting was an accident, was convicted of first-degree murder in Washoe County District Court and ordered to serve a minimum of 40 years in prison on two life sentences.
In its opinion, the court majority agreed Allan was effectively denied his right to testify and give his side of what happened because District Judge Jim Hardesty ruled the prosecutor could then present Allan's own incriminating statements.
The opinion says the incriminating statements were made during an interrogation by Detective Larry Canfield which lasted more than five hours, despite the fact Allan asked for a lawyer at the start of the session and tried six times to invoke his right to remain silent.
The opinion points out that during the interview, a lawyer appeared at the detention center to represent Allan but was not allowed to see him. It says Allan's mental condition and ability to resist the questioning was reduced by the fact he was under the influence of methamphetamine at the time and hadn't slept for three days.
The court disagreed with Hardesty's original ruling that the incriminating statements Allan made during the long interrogation were voluntary. The opinion argues Canfield "engaged in psychological pressure as he insisted that Allan talk about what had happened."
"It is uncontested that Detective Canfield violated Allan's Miranda rights by continuing with his interrogation after Allan unequivocally requested an attorney and made six invocations of his right to remain silent," the opinion states. "Despite this, the district court found, and the state continues to argue, that Allan's statements were voluntary and therefore admissible for impeachment purposes."
While Allan awaited trial on the murder charge, Farley pursued his criminal background, finding a history filled with violence and gun play.
At age 17, he was committed for mental health treatment as "suicidal" when officials believe he pointed an automatic pistol at his father and threatened to commit suicide.
In 1993, Allan was found to be in possession of two stolen guns. He pleaded guilty to petty larceny and served four hours.
In 1994, Allan pointed a handgun at two teenage girls during a road-rage incident. He later pleaded guilty to misdemeanor charges and served 6 months suspended, with 100 hours of community service.
In 1997, he once again served six months suspended after admitting to pointing a gun at his estranged wife and then discharging it into the ground.
After the conviction, with the help of Assemblywoman Bonnie Parnell, D-Carson City, and supported by state Sen. Mark Amodei, R-Carson City, Farley helped pass AB 344, giving prosecutors the ability to charge aggressors who threaten violence -- without actually going through with it -- as felons.
Previously, an overt act of violence, such as threatening someone with a gun or knife, was not specifically addressed in Nevada statutes.
"He's gotten away with so much in the past, he's no getting away with this," she said Tuesday.
Justices Bob Rose, Cliff Young, Miriam Shearing and Nancy Becker agreed that Allan's confession was not freely and voluntarily given and that the error was not harmless because the threat all those statements would be presented to the jury effectively prevented him from testifying.
"Had Allan testified, the outcome of the trial might have been different," the opinion concludes.
But Chief Justice Bill Maupin and Justices Deborah Agosti and Myron Leavitt disagreed, saying they would uphold the legality of the confession.
"The fact that Allan had gone without sleep for a considerable period of time due to his ingestion of methamphetamine is not of itself fatal to the district court's conclusion that the statements, although taken in violation of Miranda, were voluntary," Maupin argued in their dissenting opinion.
They disagreed the verdict should be overturned on those grounds.