Powell v. State

• Decision Date: 03 September 1992
• Docket Number: No. 22348,22348
• Citation: 108 Nev. 700,838 P.2d 921
• Parties: Kitrich POWELL, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 921

838 P.2d 921

108 Nev. 700

Kitrich POWELL, Appellant, v. The STATE of Nevada, Respondent.

No. 22348.

Supreme Court of Nevada.

Sept. 3, 1992.

Lee Elizabeth McMahon, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty., and Daniel M. Seaton, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

OPINION

PER CURIAM:

A jury convicted appellant Kitrich Powell (Powell) of first degree murder in the death of four-year-old Melea Allen (Melea). Powell had subjected the child to repeated beatings which resulted in a variety of injuries, one of which caused her death. Powell was sentenced to death following a penalty hearing. For the following reasons, we affirm both the conviction and the sentence.

Facts

Powell met Sharon Allen and her three children in September 1989 at a Salvation Army shelter in Las Vegas, Nevada. The Allens and Powell then moved in and out of several apartments and motels for the next two months. During this period, Mrs. Allen worked at Deseret Industries from 8:30 a.m. until 5:00 p.m. Powell stayed home and took care of Melea while the older children were at school and Mrs. Allen was at work.

Neighbors noticed that Melea had bruises on her face and legs, a cut chin and that one of her eyes was quite red. On one occasion, a neighbor heard Melea screaming and crying. When he saw Melea approximately one and one-half hours later, he noticed new bruises on her face and legs which had not been there the night before. In the neighbor's presence, Powell asked Melea how she had gotten hurt, and she answered: "Daddy, you did it." Powell then said, "No, baby, remember you fell in the tub, remember?" Powell and Melea repeated this conversation a couple of times.

The testimony at trial indicated that Powell cruelly teased Melea and mistreated her physically in the presence of others. On the evening of November 2, 1989, Melea was quiet and inactive. She could not move her head and was complaining of head and neck pain. The left side of her head was soft and spongy, and she had a new bruise on her forehead. She told her mother and siblings that "Daddy" (Powell) had dropped her on her head when he was lifting her over his shoulder. Melea was not taken to a hospital by either Powell or Mrs. Allen on the day these new injuries occurred.

The next morning, November 3, 1989, Melea could not hold up her head and could not walk without assistance. Mrs. Allen went to work as usual, and Powell delayed seeking medical treatment for Melea until late that morning. By the time Melea was admitted to the emergency room of the hospital, she was unconscious and in critical condition. An examination of the comatose child revealed a deep laceration on her chin, which was in the process of healing, and a number of bruises which were in different stages of healing. Melea's buttocks showed a pattern of several injuries on top of one another. She had extensive bruising all over her body and her spine was fractured. Melea's head showed evidence of several injuries. The most recent and severe injury had caused her brain to swell and was the cause of the coma. Melea's head injury was most likely caused by a blunt trauma which carried considerable force. The State's expert witness, Dr. Richard Krugman, testified that in the last three years he had seen only one head injury which was similar to Melea's. That injury resulted from an adolescent being propelled off the top of a pickup truck at forty-five miles per hour onto a concrete surface. Melea's injuries suggested a repetitive pattern of daily injury. All three physicians who testified agreed that Melea's injuries were not the result of accidents and that Melea had been subjected to severe abuse for some time. Without regaining consciousness, Melea died from the head injury on November 8, 1989.

Originally, Powell was arrested and charged with child abuse with substantial bodily harm (NRS 200.508). Shortly after Melea's death, Powell was additionally charged with murder (NRS 200.010; NRS 200.030). Following a jury trial, Powell was found guilty of murder in the first degree. Following a penalty hearing, the jury imposed a sentence of death. This appeal followed. On appeal, Powell asserts several assignments of error, which we now address.

Delay in Appearing Before a Magistrate

Powell argues that he was not brought before a magistrate within seventy-two hours as required by NRS 171.178(3). NRS 171.178(3) provides:

3. If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate:

(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and

(b) May release the arrested person if he determines that the person was not brought before a magistrate without unnecessary delay.

The purpose of NRS 171.178 is to prevent the police from resorting to secret interrogations and coercive tactics. Huebner v. State, 103 Nev. 29, 32, 731 P.2d 1330, 1333 (1987). This court has repeatedly held that the defendant must show prejudice which resulted from the delay. See e.g., Id. at 32, 731 P.2d at 1333; Morgan v. Sheriff, 92 Nev. 544, 546, 554 P.2d 733, 734 (1976).

Powell was arrested on Friday, November 3, 1989. A magistrate found probable cause to hold Powell for a preliminary hearing on Tuesday, November 7, 1989. It is unclear from the record whether Powell was present before the magistrate on this day. Powell contends that he was not brought before a magistrate until November 13, 1989. On November 3, 1989, and November 7, 1989, prior to his initial appearance, Powell made statements to the police. He admitted to spanking Melea for wetting her pants and slapping her on other occasions. Powell told officials that he never intended to hurt "the baby." These statements, which were presented to the jury, were clearly prejudicial to Powell.

We initially note that the United States Supreme Court has provided additional guidance on the issue of what constitutes a timely initial appearance. See County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). In McLaughlin, the Court stated that the Fourth Amendment allows for a reasonable delay of a probable cause determination while authorities are processing suspects through the criminal justice system. Id. 500 U.S. at ----, 111 S.Ct. at 1669. The Court then went on to state that a judicial determination of probable cause within forty-eight hours of arrest comports with the promptness requirement set forth in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). McLaughlin, 500 U.S. at ----, 111 S.Ct. at 1670. Intervening weekends (and implicitly, holidays or other non-judicial days) are included in the calculation of forty-eight hours. Id. If the suspect does not receive a probable cause determination within forty-eight hours, the State must prove that the delay was due to a bona fide emergency or other extraordinary circumstance. Id.

The McLaughlin case renders NRS 171.178(3) unconstitutional insofar that it permits an initial appearance up to seventy-two hours after arrest and instructs that non-judicial days be excluded from the calculation of those hours. Based on McLaughlin, we hold that a suspect must come before a magistrate within forty-eight hours, including non-judicial days, for a probable cause determination. ¹

However, the analysis of whether or not Powell's rights were violated does not end with the mere facts of a delay and incriminating statements. We have previously held that an accused waives his right to a seasonal arraignment when he voluntarily waives his right to remain silent. Deutscher v. State, 95 Nev. 669, 601 P.2d 407 (1979), vacated on other grounds, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991). There, we stated:

We subscribe to the rule of law which provides that when an accused voluntarily waives his right to silence and his right to counsel, he concurrently waives his right to be seasonably arraigned. The reason for this rule is that the primary purpose of an arraignment is to inform the defendant of his rights. But a delay in arraignment is not prejudicial when a defendant has already been advised of his rights, was promptly so advised, and voluntarily waived his rights. This is particularly so when the delay is not flagrant and the record is silent relative to any other irregularities which go to the issue of voluntariness.

Id. at 680, 601 P.2d at 414 (citations omitted).

Powell does not challenge the voluntariness of his statements, nor is there any indication in the record that the statements were involuntary. During the first interview on November 3, 1989, prior to being formally arrested, Powell left the interview twice in order to smoke a cigarette. Powell's conduct indicates that he felt free to leave the interview at any time and that he was not coerced or involuntarily detained in any way. On November 7, 1989, Powell was read his Miranda rights prior to the interview, and he waived those rights. There is no indication that the waiver was involuntary.

Irrespective of when Powell was brought before a magistrate, he waived his right to remain silent and his right to counsel. By waiving those rights, he thereby waived his right to a timely arraignment. Deutscher, 95 Nev. at 680, 601 P.2d at 414. The same reasoning this court employed in Deutscher applies to the requirement of an initial appearance before a magistrate within the prescribed time limit. At the initial appearance, Powell would have been advised, inter alia, of the right to counsel and the right to remain silent. NRS 171.186. ² One of the purposes of a speedy arraignment is to ensure that the suspect is informed of his Fifth Amendment right against self-incrimination. Huebner v. State, 103 Nev. 29, 32, 731 P.2d 1330, 1333 (1987). The same is true of a timely first appearance....