Shults v. State

• Decision Date: 05 September 1980
• Docket Number: No. 10848,10848
• Citation: 616 P.2d 388,96 Nev. 742
• Parties: Lawrence Lee SHULTS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 388

616 P.2d 388

96 Nev. 742

Lawrence Lee SHULTS, Appellant, v. The STATE of Nevada, Respondent.

No. 10848.

Supreme Court of Nevada.

Sept. 5, 1980.

Morgan D. Harris, Clark County Public Defender, and Terrence M. Jackson, Deputy Public Defender, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, and Robert J. Miller, Dist. Atty. of Clark County, and James N. Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

MANOUKIAN, Justice:

On January 3, 1978, a jury found appellant guilty of murder in the first degree. Thereafter, the trial judge sentenced him to life without the possibility of parole. The evidence is not challenged as insufficient. In this appeal, appellant contends that the trial court erred: (1) by allowing admission of testimony of a peace officer as to conversations with appellant's wife; (2) by admitting evidence of details of a robbery by appellant; (3) by admitting evidence of escapes by appellant; and (4) by admitting hearsay statements of the victim. We affirm.

On October 21, 1975, the decomposed body of a white male adult was discovered in a shallow rock-covered grave off of state highway 52 near Las Vegas. Appellant was indicted by a grand jury for the murder of William Harvey Singley and, in October of 1976, was extradited from Colorado where he was serving a twenty-year sentence for armed robbery.

At trial, a Detective Aldrich of Colorado Springs testified that, in May of 1975, appellant Shults and his wife, Norma, had been arrested along with Singley and a George Janicek for the robbery of a Montgomery Ward store in Colorado. During appellant's preliminary hearing in Colorado, appellant learned that the victim in this case, William Singley, was the source of information regarding particular details about the robbery. Approximately one month later, on July 17, 1975, Singley agreed to testify at appellant's trial on the robbery charge in exchange for a reduced charge to which he pled guilty. ¹ Detective Aldrich then testified that on October 20, 1975, he met with his division chief and with Norma Shults in Colorado. After this meeting, Aldrich placed a telephone call to the Las Vegas Metropolitan Police Department at which time he informed Lieutenant Avants that he had information that there was a homicide victim located in the desert near Mt. Charleston.

Colorado Springs Detective Andrew Smit testified as to his May 17, 1975 interview with Singley. Detective Smit was told by Singley that he was afraid that appellant would kill him if Singley provided information in connection with appellant's involvement in the Montgomery Ward robbery. Another witness, Robert Howard, testified that in late July of 1975 the victim, William Singley, acted worried about something. The witness stated that Singley was afraid that someone was going to "waste" him although he did not say who. The witness then stated that he had loaned his 1974 blue Pinto to the victim. The vehicle was not returned and the witness never saw Singley again. In the latter part of August, Howard received information that his car was in Las Vegas. Over the labor day weekend, Howard retrieved his automobile and discovered that a blanket was missing, as well as the blue carpet which had covered the spare tire compartment. Shotgun shells were found in the back of the car. Howard then identified the blanket which had been found around the victim as the one missing from his car.

Several witnesses testified that appellant had admitted killing Singley. One witness, Edmund Friedrich, testified that he had been told by appellant that appellant had shot the victim twice and then buried him in a rock grave. Appellant stated that he had returned to the grave shortly thereafter to make sure that the body was buried. Vickie Ritter testified that appellant had told her that he had killed Singley and that Janicek was next. Mary Kay Fuller testified that she had talked to appellant just after the fourth of July in 1975. At the time, appellant stated that he was mad at Singley and Janicek because they were going to testify against appellant as to the robbery. In late July, Ms. Fuller saw appellant and the victim together. On this occasion, Ms. Fuller loaned her pickup to the two men in exchange for a blue Pinto the two men had been driving. The pickup contained a .12 gauge shotgun belonging to Ms. Fuller's husband. The next day, on July 29, Ms. Fuller had reacquired possession of her pickup and noticed that the shotgun was missing. Ms. Fuller asked appellant where the shotgun was and appellant said, "Don't worry about it, it's out in Nevada." Appellant said it was "too hot" to bring back at that time. When Ms. Fuller asked about the victim, appellant said, "Don't worry about it, you'll never see him again."

A resident police officer of the Mt. Charleston area near Las Vegas testified that, in October of 1975, he had spoken with Mrs. Shults who was in Colorado Springs. Without testifying as to what Mrs. Shults had told him, Officer Woodworth stated that he subsequently went to a desert area and discovered the victim's grave.

The Clark County Coroner testified that he had concluded from an examination of the remains that death had resulted from a shotgun wound to the head of the victim and that there had also been a wound in the left shoulder. A Colorado dentist had testified that he had extracted a tooth from the victim in April of 1975. Subsequent medical testimony matched the dental cavity of the body discovered in the desert with that of Singley.

1. The Marital Privilege and Hearsay Claims.

Colorado Springs Detective Aldrich testified that he talked with Norma Shults. He then called Las Vegas police informing them that he had information regarding a homicide victim and directed Las Vegas police to a location he had been given. Officer Woodworth testified that he talked with Norma Shults by telephone and consequently directed the search for the body to a different area. Alrich stated that he listened to Norma Shults as she talked to Officer Woodworth. At trial neither officer testified as to the content of Mrs. Shults' statement.

In Nevada, a wife "cannot be examined as a witness for or against" her husband without the consent of the husband nor can a wife be examined without the consent of the husband "as to any communication made by one to the other during marriage." NRS 49.295(1). Appellant contends that the testimony by the officers violated the marital privilege statute. We first note that appellant's wife was not a witness at trial. Thus, she was not actually "examined" as contemplated by the statute. See Metz v. State, 9 Md.App. 15, 262 A.2d 331, 333-34 (Md.App.1970). Moreover, we cannot say that the testimony by the officers revealed any privileged communication between appellant and his wife. On this record, it is impossible to determine whether Mrs. Shults made a statement as to the body's location, whether she was present during the burial, whether others in addition to appellant were present at the scene, or whether, in fact, confidentiality was contemplated. It would be mere speculation to say that she acquired what knowledge she had from a communication with appellant. We do not find a violation of the marital privilege statutes. ² Compare Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979) (testimony by officer as to comments by appellant's wife did not violate privilege) and Grundstrom v. State, 456 S.W.2d 92 (Tex.Crim.App.1970) (wife did not testify as to a communication by giving physical evidence to police in response to question by officer) with State v. Suits, 296 N.C. 533, 251 S.E.2d 607 (1979) (officer could not testify as to wife's conduct in response to questions asked of her).

Appellant next contends that the testimony by the officers improperly circumvented the hearsay rule. Of course, out of court statements by appellant's wife would be inadmissible hearsay if offered for the truth of the matter asserted. Deutscher v. State, 95 Nev. at 683-84, 601 P.2d at 417. Although the officers revealed no statements made by Mrs. Shults, appellant argues that the inference was that she told the officers that she knew where the body was and that appellant placed it there or had some connection with it. The state asserts that the results of the conversation with Mrs. Shults were not offered to prove the truth of any matter but only to explain the conduct of the searchers.

Here, the officers did not reveal any particular statements made by Mrs. Shults. The results of the conversation with appellant's wife were offered only to explain the resulting conduct of the police. After testifying that a conversation took place, the witnesses simply testified as to what occurred thereafter, not to out of court statements of another. The witnesses were subject to cross-examination as to the existence of these facts. Such is not violative of the hearsay rule. Enlow v. United States, 239 F.2d 887, 890 (10th Cir. 1957).

2. The Details of the Robbery.

The general rule with regard to character evidence is that evidence of other crimes or bad acts is inadmissible to prove the character of a person in order to show he acted in conformity with such character. NRS 48.045(2). But such evidence is admissible if relevant for some purpose other than to show an accused's criminal character and the probability that he committed the crime. McMichael v. State, 94 Nev. 184, 188, 577 P.2d 398, 400 (1978). Motive, intent, plan, and identity are some of the objectives for which such evidence may be admitted. NRS 48.045(2). This evidence must nevertheless be limited according to prejudicial effect. NRS 48.035.

Detective Aldrich testified that the victim had cooperated and implicated himself and appellant in the Colorado robbery. This was used to establish appellant's motive for the subsequent killing. Aldrich was then allowed to testify as to the details of the robbery. The state was permitted to show that ...