779 P.2d 934 (Nev. 1989), 19294, Rowbottom v. State

Docket Nº:19294.
Citation:779 P.2d 934, 105 Nev. 472
Party Name:Matthew Frank ROWBOTTOM, Appellant, v. The STATE of Nevada, Respondent.
Case Date:August 23, 1989
Court:Supreme Court of Nevada
 
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Page 934

779 P.2d 934 (Nev. 1989)

105 Nev. 472

Matthew Frank ROWBOTTOM, Appellant,

v.

The STATE of Nevada, Respondent.

No. 19294.

Supreme Court of Nevada.

August 23, 1989.

Page 935

        [105 Nev. 473] David G. Parraguirre, Public Defender and Karen Grifall, Deputy, Reno, for appellant.

        Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty. and Larry Sage, Deputy, Reno, for respondent.

Page 936

[105 Nev. 475] OPINION

        PER CURIAM:

        A jury convicted appellant Matthew Frank Rowbottom (Rowbottom) of first degree murder with use of a deadly weapon. He now appeals from the district court's judgment of conviction and contends: (1) that the district court erred in denying his motions to suppress evidence; (2) that the district court erred in admitting evidence of his prior misconduct; and (3) that the district court erred in denying his motion for a new trial based on juror misconduct. For the reasons set forth below, we reverse and remand for a new trial.

        THE FACTS

        In the early afternoon of August 26, 1987, a Reno Disposal Company driver discovered Ivy Pregozen's (Ivy) body on East Commercial Row in Reno. An autopsy revealed that Ivy died from multiple stab wounds. She had been stabbed five times in the chest and abdomen, four times in the back, and her neck had been slashed twice. In addition, Ivy suffered abrasions and bruising about her head and face, she had been sexually assaulted, and a plastic bindle tie ligature had been applied to her wrists. With the exception of two wounds to the back, all of Ivy's wounds and injuries, as well as the placement of the ligature, occurred prior to her death.

        As part of their investigation of the murder, Reno Police Detectives contacted and interviewed those persons who last saw Ivy alive on the evening of August 25th. Ultimately, on August 27th, Detective Michael Neville contacted Rowbottom. Rowbottom agreed to be interviewed and voluntarily accompanied Detective Neville to the police station. Shortly after the interview commenced, detectives asked if Rowbottom would consent to a search of his residence and vehicle. Rowbottom refused to grant permission for a search of his apartment explaining, without being asked, that he had illegal pyrotechnics there that he had taken from his Nevada National Guard unit. He voluntarily consented to a search of his vehicle, however.

        When the detectives read the vehicle search consent form to Rowbottom, he apparently manifested some confusion. The [105 Nev. 476] detectives therefore explained the form fully and advised Rowbottom of his Miranda rights as well. Afterwards, Rowbottom verbally indicated that he understood his rights and signed the consent to search form.

        The interview terminated when Rowbottom and Detective Neville went to the Sands Regent Hotel and Casino where Rowbottom worked and his vehicle was parked. Detective Neville later testified that he and Rowbottom were alone and that Rowbottom was neither in custody nor in handcuffs. A search of Rowbottom's vehicle revealed two small clumps of reddish colored sand similar to that present in the area in which Ivy's body had been discovered. When police found the sand, Rowbottom stated, without being asked, that it had been there since he purchased the vehicle. Police tested the sand and determined it to be presumptively positive for the presence of human blood. When asked, Rowbottom denied that Ivy had ever been in his vehicle; however, police removed a latent finger print from the right corner of the vehicle's inside rear view mirror that matched that of Ivy's right middle finger. Police also observed that the tread on the vehicle's tires was similar to that found in tire impressions left at the murder scene. Following the vehicle search, Rowbottom again voluntarily accompanied Detective Neville to the police station where, at approximately 5:30 p.m., the interview resumed.

        While other detectives interviewed Rowbottom, Detective Neville with the aid of a deputy district attorney requested a warrant to search for the illegal pyrotechnics believed to be in Rowbottom's apartment. When the magistrate from whom the police requested the warrant inquired if the police also wished to search for evidence linking Rowbottom to Ivy's murder, the deputy district attorney indicated that he believed that sufficient probable cause to request such a warrant was lacking. The deputy district attorney informed the magistrate

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that if, while searching for the pyrotechnics, the police discovered evidence linking Rowbottom to the murder they would discontinue the search and request another warrant for that evidence. Thereafter, the magistrate issued a warrant for the requested search.

        Soon after entering Rowbottom's apartment, police observed in plain view evidence which they believed would connect Rowbottom to Ivy's murder. The police halted their search, secured the residence, and requested and obtained a second search warrant. Among the items discovered and seized during execution of the second warrant were Ivy's purse, a fixed blade hunting knife and sheath with what appeared to be blood stains on the sheath, a pair of Rowbottom's trousers with what appeared to be blood stains on [105 Nev. 477] one of the knees, and a plastic bindle tie similar to that used to bind Ivy's wrists. 1 The police also discovered and seized various Nevada National Guard pyrotechnics, including star cluster flares, parachute flares, and grenade simulators.

        In time, detectives informed Rowbottom of their discoveries, and, at approximately 1:00 a.m. on August 28th, Rowbottom confessed to killing Ivy. According to Rowbottom's confession, he, Ivy, and some other employees of the Sands Regent met at a bar there on the evening of August 25th and later had dinner and more drinks at a nearby pizza parlor. Prior to leaving the pizza parlor, he and Ivy agreed to meet again at the Sands Regent after Ivy returned from driving her friends to the friends' home in Sparks. Rowbottom told the police that he arrived at the Sands Regent first and when Ivy arrived she joined him in his vehicle. Together they left, purchased beer at a convenience store, and drove to a secluded location where they drank the beer and began petting. Subsequently, according to Rowbottom, Ivy became upset, terminated the activity, and exited the vehicle. Rowbottom followed taking with him a knife he kept in the vehicle. He threatened Ivy with the knife, they struggled and fell to the ground, and the knife accidentally entered her back. Rowbottom indicated that he then "went crazy" and stabbed Ivy repeatedly in the chest and back. When asked, Rowbottom told the police that after he killed Ivy he took a plastic bindle tie from his car and placed the ligature on Ivy's wrists. Rowbottom vigorously denied having sexually assaulted Ivy, however.

        Rowbottom's initial statement to police regarding his possession of illegal pyrotechnics, as well as the evidence found at his apartment and his ultimate confession to the murder, were the subject of various motions in limine to suppress. The district court denied each of the motions.

        At trial, counsel stipulated to the admission of an exhibit that depicted various locations visited by those present on the evening of August 25th. The exhibit also depicted the location of Rowbottom's apartment. The prosecution used the exhibit to advance its theory of premeditation, i.e., that Rowbottom, intending to kill Ivy, returned to his apartment where he obtained the plastic [105 Nev. 478] bindle tie and the murder weapon, prior to meeting Ivy back at the Sands Regent.

        Rowbottom testified in his own defense. Rowbottom did not deny that it was he who sexually assaulted and killed Ivy; he admitted that the events must have happened. He claimed, however, that he did not remember committing the crimes. Rowbottom's defense was that he did not commit the crimes with premeditation, but rather, they happened while he was experiencing a "dissociative state." In attempting to establish the reasons for his experiencing dissociative states, Rowbottom testified about his traumatic and unhappy childhood,

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including his being taken on occasions from his family and being placed in foster homes.

        Regarding the night in question, Rowbottom testified that the plastic bindle tie used to bind Ivy's wrists was already in his vehicle. Rowbottom testified further that he bound Ivy's wrists while both he and Ivy were in his vehicle after she commented, following an unsuccessful attempt at sexual intercourse, that he was "a nonsatisfying person." According to Rowbottom, when Ivy complained that the tie was too tight, he exited his vehicle taking with him a knife he kept there and went to the vehicle's passenger side to remove the ligature. By the time he reached the vehicle's passenger side, Ivy, whose hands were bound, had exited. Rowbottom continued stating that both he and Ivy fell, he hit his head on the ground, and the last thing he remembered was attempting to cut the ligature from Ivy's wrists.

        Among the witnesses called by the defense was Rowbottom's mother, a felon convicted of child abuse, who reluctantly testified that as a child Rowbottom suffered physical abuse from herself, his stepparent, and foster parents. Following a hearing outside the presence of the jury and over the defense's objections, the district court gave a limiting instruction to the jury and permitted Rowbottom's mother to testify on cross-examination that as an adolescent...

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