660 P.2d 109 (Nev. 1983), 12695, Melchor-Gloria v. State

Docket Nº:12695.
Citation:660 P.2d 109, 99 Nev. 174
Party Name:Fernando MELCHOR-GLORIA, Appellant, v. The STATE of Nevada, Respondent.
Case Date:March 10, 1983
Court:Supreme Court of Nevada

Page 109

660 P.2d 109 (Nev. 1983)

99 Nev. 174

Fernando MELCHOR-GLORIA, Appellant,


The STATE of Nevada, Respondent.

No. 12695.

Supreme Court of Nevada.

March 10, 1983.

Page 110

[99 Nev. 175] William N. Dunseath, Public Defender, and Dennis E. Widdis, Deputy Public Defender, Reno, for appellant.

Brian McKay, Atty. Gen., Carson City, Mills B. Lane, Dist. Atty., and Edward B. Horn, Deputy Dist. Atty., Reno, for respondent.

[99 Nev. 176] OPINION


The instant appeal arises out of appellant Fernando Melchor-Gloria's conviction of second-degree murder. The issues presented on appeal concern procedural aspects of appellant's trial; accordingly, the factual setting of the crime underlying this appeal is set forth in brief detail. The victim's body was discovered in appellant's hotel room in Reno, Nevada, on the morning of July 27, 1979. The cause of death was a stab wound in the neck. Shortly thereafter, appellant was arrested at the apartment of a friend. At the time of arrest police recovered a knife which had been in appellant's possession; tests revealed the knife had human blood under the hilt. Sharpening marks on the knife indicated it could have been sharpened with a file found in appellant's apartment, and various blood traces were found on clothing appellant had brought to the apartment. In addition, the victim's paycheck stub was found in appellant's pocket.

At trial, appellant did not deny he stabbed the victim, but attempted to establish

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that the killing was in self-defense. The prosecution, however, established several inconsistencies which cast doubt on appellant's story. The jury apparently disbelieved appellant's version of events, and found him guilty of second-degree murder. This appeal followed.

Double Jeopardy

The first issue presented by appellant arises out of a mistrial which was declared shortly after the commencement of appellant's first trial. After his arrest, appellant made certain [99 Nev. 177] incriminating statements while being interrogated by police investigators. Appellant, a native of Mexico, could not speak English fluently, and a police officer translated questions from English to Spanish and appellant's responses from Spanish to English. This interrogation was taped, and the initial transcripts made from the police officer's translations indicated appellant had been properly admonished concerning his Miranda rights.

Before trial, the tape recording of the interrogation was given to a college Spanish instructor, who made a Spanish-to-English translation of the entire interview. The translation prepared by the instructor revealed that appellant had not been given complete Miranda warnings prior to his interrogation by police. 1 The prosecutor received this taped translation on Saturday, December 8, 1979, and received a corrected transcript of this second translation by 9:30 a.m. Monday, December 10, 1979. Although the prosecutor read the transcripts while preparing his opening statement, he did not review the portion of the transcript which contained the Miranda warnings.

Defense counsel was aware of the deficiencies in the Miranda warnings, and met in chambers with the prosecutor and judge prior to opening statements on Tuesday, December 11, 1979. At that time the issue of the admissibility of appellant's statements was discussed; defense counsel came away from that meeting with the understanding an agreement had been reached to the effect that the issue of the admissibility of appellant's statements would be dealt with in an appropriate hearing.

After the meeting in chambers, however, the prosecutor commenced his opening statement and began referring to appellant's potentially inadmissible statements. Defense counsel objected, and in the ensuing bench conference the prosecutor successfully argued against being limited in opening statement. The prosecutor later admitted that he made his argument despite the fact that he had not read the relevant portion of the college instructor's transcript, and in the face of defense counsel's representations appellant's statements were inadmissible. In addition, the prosecutor acknowledged that should he be mistaken on the issue of admissibility, a mistrial would have to be declared.

The prosecutor emphasized both the existence and content of appellant's incriminating statements during the remainder of his opening statement. After opening statements were completed and the first witness dismissed, a recess was called. The [99 Nev. 178] prosecutor then interviewed one of the interrogating officers and reviewed the transcript with him. In the course of this interview, the prosecutor came to the conclusion that the Miranda warnings given appellant were defective. Appellant's statements subsequently were suppressed, and on defense motion, a mistrial without prejudice to the prosecution was declared.

The issue this court must address on appeal is whether, under the particular facts of this case, the Double Jeopardy Clause of the United States or Nevada Constitutions bars appellant's retrial.

As a general rule, a defendant's motion for, or consent to, a mistrial removes any double jeopardy bar to reprosecution. Oregon v. Kennedy, --- U.S. ----, ----, 102 S.Ct. 2083, 2093, 72 L.Ed.2d 416 (1982) (Stevens, J., concurring); United

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States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971). There is an exception to this general rule which applies in those cases in which the prosecutor intended to provoke a mistrial or otherwise engaged in "overreaching" or "harassment." Oregon v. Kennedy, 102 S.Ct. at 2093; United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). Further,...

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