Anderson v. State, 6042

• Citation: 86 Nev. 829,477 P.2d 595
• Decision Date: 10 December 1970
• Docket Number: No. 6042,6042
• Parties: Leon Harley ANDERSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 595

477 P.2d 595

86 Nev. 829

Leon Harley ANDERSON, Appellant, v. The STATE of Nevada, Respondent.

No. 6042.

Supreme Court of Nevada.

Dec. 10, 1970.

Rehearing Denied Feb. 9, 1971.

Harry A. Busscher, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Mark C. Scott, Jr., Dist. Atty. and Stewart R. Wilson, Deputy Dist. Atty., Elko County, Elko, for respondent.

OPINION

COLLINS, Chief Justice.

This is an appeal from a jury conviction of murder in the first degree in which death was fixed as the penalty, and from an order denying a new trial. We affirm the conviction, the sentence, and the order.

In late October, 1968, Joan Ingram was traveling U.S. 93 south of Wells, Nevada, when her car broke down. On October 27, her partially clothed body was found five miles south of Wells and about 100 feet off that highway with multiple stab wounds in the back and deep lacerations across her neck. A Japanese bayonet with a 13-inch blade was found near the body. It was established to be the murder weapon. The Elko County authorities did not know the killer and were unable to make any immediate arrest.

About January 6, 1969, Sgt. Spencer of the Red Bluff, California, Police Department, investigated a complaint by a woman named Pat Keyser that a person by the name of 'Andy Anderson' had threatened her with a gun when she refused to accompany him to a motel. The police were unable to locate 'Andy Anderson.'

On January 21, 1969, a Mr. Poppelton of Red Bluff went to the police station and told them that the man who had threatened Pat Keyser was sitting in her car at the hospital. When the police arrived at her car, no one could be found. As the officers were returning to the police station to get additional information, they saw appellant by the bus station about one block from the parking lot. He matched the description of 'Andy Anderson.' He was stopped by the officers, and when asked his name the suspect answered, 'Anderson, Andy Anderson.' When asked if he had a gun, Anderson replied that he did but it was not a real gun. The gun proved to be a starter's pistol. It was taken from Anderson's possession. Further search of Anderson produced a knife with an 8-inch blade; it was also taken from him. He was then arrested for carrying a concealed weapon.

At the police station, after having been given a Miranda-type warning, during an interrogation about the concealed weapon offense Anderson volunteered information that he had recently killed a woman near Elko, Nevada. The officers verified that such a killing had in fact taken place and proceeded to take a statement from Anderson concerning it.

During this interrogation, Anderson asked the officers to retrieve for him a canvas bag containing personal possessions which he had left in an open field near Red Bluff. After three trips and additional instructions from Anderson as to its location, the bag was found and returned to the police station. Anderson asked the officer to get some cigarettes out of the bag for him, and in the process the officers discovered a Japanese bayonet which Anderson told them was identical to the one which he used to kill Joan Ingram.

While still at the Red Bluff jail, Anderson, after further Miranda-type warnings, gave additional statements to Lt. Moller and later to District Attorney Scott and Sheriff Harris of Elko County, Nevada, concerning the murder of Joan Ingram.

Anderson was formally charged with the murder of Joan Ingram on January 27, 1969. Preliminary hearing was held and he was bound over for trial. An Information was filed March 28, 1969, he was arraigned April 2, and trial was set to commence May 15.

On April 28, 1969, Anderson's court-appointed counsel, Michael Marfisi, sought by motion to be allowed to withdraw as trial counsel because of enactment by the legislature of Ch. 251, Stats. of Nevada 1969, prohibiting a deputy city attorney from defending an indigent person charged with a criminal violation. That motion was denied, but upon application to this court an alternative writ of prohibition was issued on May 5 and made permanent on July 11, 1969, precluding Marfisi's representation of appellant. See Marfisi v. Fourth Judicial District Court, 85 Nev. 445, 456 P.2d 443 (1969).

On May 4, 1969, Anderson escaped from the Elko County Jail. He was recaptured and returned to jail on June 12.

On July 14, 1969, Ross Eardley was appointed counsel for Anderson, and trial was set for September 8. At the trial setting, Eardley said he would not consent nor stipulate to the new trial date. He did not, however, object to it.

On August 7, 1969, Anderson's new counsel moved to dismiss the action because it had not been brought to trial within 60 days after filing of the information pursuant to NRS 178.556. He also contended his constitutional right to a speedy trial had been violated, sought a change of venue, and moved to suppress certain evidence. These motions were all denied, and the matter proceeded to trial before a jury.

During the jury selection, the trial judge excused a prospective juror when she said she could not consider imposing capital punishment but would not let that affect her determination of appellant's guilt or innocence.

During the trial, the judge gave Instruction No. 29 which appellant contends constitutes a special instruction relating exclusively to his testimony and is error per se under NRS 175.171 and Graves v. State, 82 Nev. 137, 413 P.2d 503 (1966).

The trial judge also gave Instruction No. 8 which attempted to distinguish between circumstantial and direct evidence. Appellant contends that because there was evidence admitted consistent with innocence but inconsistent with guilt, the jury could only have rendered a verdict of guilt by ignoring the instruction or the evidence or both.

Thus, the issues before us for decision in this appeal are these:

I. Whether appellant was denied a speedy trial.

II. Whether the lower court erred in denying the motion to suppress evidence.

III. Whether the trial judge excused a prospective juror in violation of Witherspoon and Bean when she said she could not consider imposing capital punishment but would not let that affect her determination of guilt or innocence.

IV. Whether the lower court erred in giving an instruction that prior inconsistent statements of the accused could also be used as evidence of guilt.

V. Whether the jury ignored the instructions and the evidence in returning a verdict of guilty.

1. Appellant contends he was denied a speedy trial in violation of his Sixth and Fourteenth Amendment rights under the U.S. Constitution as delineated by Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) and NRS 178.556.

To constitute a federal constitutional deprivation of rights, failure to accord a speedy trial must be shown to have resulted in prejudice attributable to the delay. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (May 25, 1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); United States ex rel. Solomon v. Mancusi,412 F.2d 88 (2d Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236 (1969); Mull v. United States, 402 F.2d 571 (9th Cir. 1968), cert. denied, 393 U.S. 1107, 89 S.Ct. 917, 21 L.Ed.2d 804 (1969). The short delay here, caused as it was by appellant's escape and his counsel's application for a writ of prohibition to this court, without a clear showing of prejudice (and there was none here), does not amount to a federal constitutional violation.

NRS 178.556 states that the court 'may' dismiss the information or indictment if the defendant is not brought to trial within 60 days. This rule is only mandatory ¹ if there is not good cause shown for the delay. Ex parte Hansen, 79 Nev. 492, 387 P.2d 659 (1963); Ex parte Morris, 78 Nev. 123, 369 P.2d 456 (1962); Oberle v. Fogliana, 82 Nev. 428, 420 P.2d 251 (1966). The State, which had the burden of showing good cause for the delay, Ex parte Morris, supra, did so in this case. The statutory timetable for conduct of criminal proceedings is a guide to the speedy trial issue, but does not define the constitutional right. Stabile v. Justice's Court, 83 Nev. 393, 432 P.2d 670 (1967). Furthermore, before error for failure to accord a speedy trial can be raised on appeal, objection to the trial date set must have been made in the trial court. Harris v. State, 86 Nev. 197, 466 P.2d 850 (1970). No such objection was made here.

2. Appellant complains that his federal constitutional rights were violated by the manner of his arrest and the search of his person in Red Bluff, California.

By reason of the background information, complaint and description the police had about 'Andy Anderson,' they had legal cause and reason to stop him, ask his name and if he had a gun. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); McGuire v. State, 86 Nev. 262, 468 P.2d 12 (1970); Barnes v. State, 85 Nev. 69, 450 P.2d 150 (1969); Robertson v. State, 84 Nev. 559, 445 P.2d 352 (1968); Harper v. State, 84 Nev. 233, 440 P.2d 893 (1968). Upon his admission that he had a gun, and its production, even though it was later proved to be incapable of firing a loaded shell, and the subsequent search which produced the knife, the police had probable cause to arrest.

3. The canvas bag which was tracked down and found by the officers at the request of appellant was not the product or result of a search. When the police opened it at his request to get some cigarettes, they were entitled to seize any evidentiary items exposed to their view. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); McGuire v. State, supra. The record also shows the police had appellant's consent to look in the bag. McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970). Appellant maintained no expectation of privacy in the contents of the...