Kinna v. State, 5536
| Decision Date | 13 November 1968 |
| Docket Number | No. 5536,5536 |
| Citation | 84 Nev. 642,447 P.2d 32 |
| Parties | Mike KINNA aka Mike Keyena, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
James D. Santini, Public Defender, Robert N. Peccole, Asst. Public Defender, Las Vegas, for appellant.
Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., James L. Buchanan, II., Deputy Dist. Atty., Las Vegas, for respondent.
A jury in Clark County found Mike Kinna guilty of unlawful possession of narcotics. His appeal is predicated upon two specifications of error: (1) The narcotic (marijuana) seized at the time of his arrest was unlawfully received in evidence; (2) the conduct of the trial judge deprived him of a fair and impartial trial.
In March 1967, William C. Kirstein, who resided near the abandoned Fifth Street Grammar School in Las Vegas, observed a car parked near the school. On one occasion he saw appellant working on the car. Later he noticed appellant entering the school grounds through a hole in the school fence. Appellant entered in the morning and left in the evening. After observing appellant's conduct for several weeks, Mr. Kirstein reported appellant's activities to the Las Vegas police. The police, upon investigation, found appellant asleep in one of the rooms of the school, which he had been using for several weeks as his sleeping quarters. He was arrested for vagrancy. When he was arrested, the officers observed a black pouch among appellant's belongings and upon examination suspected it contained marijuana. A chemist's analysis confirmed their suspicions. Appellant was charged, tried, and convicted of unlawful possession of marijuana.
We have two issues presented for our consideration: (1) Was the marijuana found in the school the result of an illegal search and seizure? (2) Were appellant's constitutional rights to a fair and impartial trial denied by judicial misconduct?
1. Former NRS 171.235, 1 provides that a peace officer may make an arrest in obedience to a warrant delivered to him, or may without a warrant arrest a person for a public offense committed or attempted in his presence. When a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person arrested. The question presented for our consideration is whether Kinna's arrest was lawful. If so, the search was permissible and the marijuana properly received in evidence. If not, the search was constitutionally impermissible, the marijuana was improperly received, and the conviction must be reversed.
Kinna was arrested for vagrancy. Paragraph F of Las Vegas City Ordinance 6-1-39 defines a vagrant as 'Every person who lodges in any barn, shed, shops, outhouse, or place other than that kept for lodging purposes, without the permission of the owner or persons entitled to the possession thereof.' (Emphasis added.)
Appellant urges that the record is void of any evidence tending to show that the arresting officer at the time of Kinna's arrest knew or determined that Kinna was lodging in the Fifth Street Grammar School without permission of the owner or those entitled to possession of the school, namely, the Clark County Board of School Trustees, and therefore his arrest was invalid and the resulting search and sezure of the marijuana in derogation of Kinna's constitutional rights. We do not agree.
Kinna had been observed entering the school premises each morning through a hole in the fence and leaving by the same means in the evening. He had set up temporary, makeshift sleeping quarters in a public school building. These facts are sufficient, in our opinion, to show that he was there absent the permission of the Clark County Board of School Trustees. Circumstantial evidence has long been held sufficient to establish the necessary elements of a public offense, if proved beyond a reasonable doubt. The rule was well stated by this court in State v. Snyder, 41 Nev. 453, 461, 172 P. 364, 366 (1918):
If the circumstances, all taken together, exclude to a moral certainty every hypothesis but the single one of guilt, and establish that one beyond a reasonable doubt, they are sufficient.' State v. Mandich, 24 Nev. 336, 54 P. 516.'
See State v. Grenz, 26 Wash.2d 764, 175 P.2d 663 (1946), where the charge was vagrancy, and State v. Slaughter, 70 Wash.2d 935, 425 P.2d 876 (1967).
Admittedly, it would have been preferable if the officer had made an appropriate inquiry regarding permission for Kinna to be in the school, but to reverse his conviction under the state of the record would exalt form over matter and technicality over truth. 2
2. We turn to appellant's second contention--that he was denied a fair and impartial trial due to judicial misconduct. The acts complained of vary from mild admonishment to strong reprimands. They center for the most part on colloquies between the trial judge and the Deputy Public Defender regarding counsel's attempt to cross-examine and to impeach the state's witnesses.
Presumably, those persons ascending the trial bench will not allow their personal temperament to interfere adversely with the ascertainment and declaration of the truth, for that is the object and goal of every judicial proceeding.
While we are not unmindful of the heavy court calendars of our district courts and the sincere desire of our trial judges to expedite the disposition of cases pending before them, the trial judge's conduct in this case--his display of impatience and active participation during the trial as an advocate--constituted a disregard for the effect such conduct might have upon the jury, who look to the judge as their guide and guardian.
Firmly embedded in our tradition of even-handed justice--and indeed its very cornerstone--is the concept that the trial judge must, at all times, be and remain impartial. So deeply ingrained is this tradition that it is now well settled that the trial judge must not only be totally indifferent as between the parties, but he must also give the appearance of being so.
Harassment of counsel, prejudicial to his client--and this can take many forms--may require a new trial. The court may not hamper or embarrass counsel in the conduct of the case by remarks or rulings which prevent counsel from presenting his case effectively or from obtaining full and fair consideration from the jury.
Canon 16 of the Canons of Judicial Ethics adopted by this court in 1962 for all the courts of justice in the State of Nevada provides in part:
'A judge may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience or participation in the examination of witnesses, * * * may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.
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