Shuman v. State

• Decision Date: 17 May 1978
• Docket Number: No. 8341,8341
• Citation: 578 P.2d 1183,94 Nev. 265
• Parties: Raymond Wallace SHUMAN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1183

578 P.2d 1183

94 Nev. 265

Raymond Wallace SHUMAN, Appellant, v. The STATE of Nevada, Respondent.

No. 8341.

Supreme Court of Nevada.

May 17, 1978.

Rehearing Denied June 19, 1978.

Rodlin Goff, State Public Defender, and Michael R. Griffin and J. Thomas Susich, Deputy Public Defenders, Carson City, and Raymond Wallace Shuman, in pro per., for appellant.

Robert List, Atty. Gen., D. G. Menchetti, Deputy Atty. Gen., Carson City, and Michael E. Fondi, Dist. Atty., Carson City, for respondent.

OPINION

MOWBRAY, Justice:

A jury found appellant, Raymond Wallace Shuman, guilty of capital murder. Shuman, who was serving a life sentence without possibility of parole, was charged with the fatal killing of a fellow prisoner. Under the provisions of a mandatory death sentence then in effect, Shuman was sentenced to death. NRS 200.030 (1973) (amended 1975, 1977). ¹ He has appealed, asserting numerous assignments of error, which we reject as meritless; therefore, we affirm.

I. THE FACTS

On August 27, 1973, Ruben Bejarno, an inmate at the Nevada State Prison, was set afire and burned with a flammable fluid. He was given emergency treatment at Carson-Tahoe Hospital in Carson City and transferred to Valley Medical Center in Santa Clara, California. He died three days later.

When he was transferred from the prison to the hospital, he said several times in the presence of an officer, "(a)ll over a window." Bejarno stated at the hospital that it was Shuman who had set him afire. He reiterated this statement, upon questioning, at the medical center.

Shuman and Bejarno occupied adjoining cells. Two cans containing flammable fluid, both with Shuman's fingerprints, were found in Bejarno's cell. When Bejarno ran from his cell in flames, Shuman was seen near Bejarno's cell making throwing motions. The State's contention was that Shuman threw the empty cans into Bejarno's cell after he had set him afire. Shuman's hair was singed; he suffered a severe burn on his left hand. It was also learned that the two had been fighting, just prior to the incident, over opening a window located near their cells.

II. ISSUES RAISED BY COUNSEL

Shuman, through his counsel, urges reversal on the grounds (1) that the trial court erred in admitting the dying declarations of the deceased and (2) that imposition of the death penalty constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments to the United States Constitution and article 1, section 6, of the Nevada Constitution.

A. The Dying Declarations.

1. Bejarno suffered third-degree burns over ninety percent of his body, second-degree burns over nine percent of his body, and first-degree burns over one percent of his body. The record establishes that a person sustaining burns of this magnitude has no chance of survival.

A correctional officer at the prison who accompanied Bejarno to the hospital emergency room testified that Bejarno was In State v. Teeter, 65 Nev. 584, 200 P.2d 657 (1948), this court ruled that a lay person is competent to testify when an injured person is conscious of impending death, providing the witness observed the injured person, his symptoms and expressions, and the declarant's general physical condition. Teeter supports the trial court's ruling in admitting Bejarno's statement, "(a)ll over a window," made repeatedly while en route to the hospital emergency room.

burned very badly, was charred in many places, had blood oozing from his legs and ankles, and had great difficulty in breathing. Predicated on these observations, the trial court permitted, over objection, the officer to testify that Bejarno stated repeatedly, "(a)ll over a window."

Shuman suggests, however, that, even so, the statements should not have been received, because they did not include any relevant facts surrounding the actual burning; that they were only the opinion of the declarant relating to the reason for the assault. Prior to the adoption of NRS 51.335 ² in 1971, Nevada did not admit as dying declarations, expressions of opinion. The authorities were split regarding what amounted to a statement of fact relating to an injurious act and what was only an opinion. Wigmore, however, had long noted that the fact/opinion distinction was unsound and should be abolished. See cases collected at 5 J. Wigmore, Evidence § 1434, at 282-83 (1974). The federal rule does away with this distinction and permits dying declarations to include both the cause and the circumstances surrounding the declarant's death. See 11 Moore's Federal Practice § 804.01(11), at VIII-228 to -229 (1976). NRS 51.335, taken from example 3 of proposed federal rule 804, is broader than the rule as finally enacted by Congress. We therefore conclude that our statute, NRS 51.335, dispenses with the fact/opinion distinction and that the decedent's statements were properly received.

2. Bejarno, at Carson-Tahoe Hospital, identified Shuman as his assailant. Shuman claims the testimony of the identification was inadmissible because Bejarno was not told at that time that his injuries were fatal. One of the attending physicians did, however, testify that he advised Bejarno that he had small chance of survival.

Bejarno's other dying declaration was made at Valley Medical Center two days prior to his death. Bejarno's voice was inaudible. He responded to questions, however, by nodding his head either affirmatively or negatively. The questioning, by a county investigator, shows that Bejarno was in full possession of his mental faculties. He identified Shuman as his assailant. The extremity of Bejarno's situation was obvious. He was wrapped in gauze from head to foot, immobilized in a special bed, and could not control his shaking.

In Teeter, this court said:

(I)t is not necessary for the declarant to state to anyone, expressly, that he knows or believes he is going to die, or that death is certain or near, or to indulge in any like expression; nor is it deemed essential that his physician, or anyone else, state to the injured person that he will probably die as a result of his wounds, or that they employ any similar expression. It is sufficient if the wounds are of such a nature that the usual or probable effect upon the average person so injured would be mortal; and that such probable mortal effect is not hidden, but, from experience in like cases, it may be reasonably concluded that such probable effect has revealed itself upon the human consciousness of the wounded person . . . .

Id., 65 Nev. at 628, 200 P.2d at 679 (emphasis added).

We believe that the probable effect of Bejarno's burns was sufficiently revealed to him and that he knew or strongly believed that his death was imminent. As Professor Wigmore observed: "The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances." 5 J.

Wigmore, Evidence § 1442 at 298-301 (1974). Therefore, we conclude that the dying declarations were properly received.

B. The Mandatory Death Sentence.

It is clear that the imposition of the death penalty does not, in itself, violate the eighth amendment ban on cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Nor does it violate the similar provision of the Nevada Constitution. Hinrichs v. First Judicial Dist. Court, 71 Nev. 168, 283 P.2d 614 (1955). The question presented by this case is whether such a sentence may constitutionally be imposed upon one already serving a life sentence without possibility of parole, upon his conviction of the murder of his fellow inmate, under a statute which made the imposition of the death penalty mandatory under such circumstances.

In 1976 the United States Supreme Court, in Gregg v. Georgia, supra, and companion Florida and Texas cases, ³ determined that the Georgia, Florida, and Texas death penalties were not in violation of the eighth amendment ban on cruel and unusual punishment, and were not arbitrary and capricious, where the statutes made provision for a bifurcated hearing, first as to guilt and then as to punishment, and where the tribunals, either judge or jury, were required to consider both aggravating and mitigating circumstances. The Court also determined, however, that mandatory death penalty provisions of the statutes of North Carolina and Louisiana were invalid, because the jury had no opportunity to consider the circumstances of the crimes or the background of the accused. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); S. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). In Woodson, Justices Stewart, Powell, and Stevens observed that, although individual sentencing determinations generally reflected simply enlightened policy, rather than a constitutional imperative, in capital cases the fundamental respect for humanity underlying the eighth amendment required consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. 428 U.S. at 304, 96 S.Ct. 2978. Woodson v. North Carolina and S. Roberts v. Louisiana were both cited by the Court one year later, as the Court ruled unconstitutional the mandatory imposition of the death sentence under a statute requiring the death penalty for the killing of a police officer engaged in the performance of his duties, without consideration of the character or background of the accused. H. Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 582 (1977).

In each of the cases in which it has ruled the mandatory imposition of the death penalty unconstitutional, however, the Court has specifically excepted from its prohibition the circumstances presented by the case at hand. Woodson v. North Carolina, 428 U.S. at 287, n. 7, 96 S.Ct. 2978; S....