Austin v. State

• Decision Date: 07 December 1971
• Docket Number: No. 6300,6300
• Parties: Curtis AUSTIN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 724

491 P.2d 724

87 Nev. 578

Curtis AUSTIN, Appellant, v. The STATE of Nevada, Respondent.

No. 6300.

Supreme Court of Nevada.

Dec. 7, 1971.

Rehearing Denied Jan. 10, 1972.

Harry E. Claiborne and Annette R. Quintanna, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, William P. Beko, Nye County Dist. Atty., Tonopah, for respondent.

OPINION

GUNDERSON, Justice:

Convicted of possessing heroin in violation of NRS 453.030, appellant Curtis Austin contends that because the State adduced no evidence to corroborate its principal witness, Jesse Martin, and because Martin's testimony unequivocally established Martin was himself an active, corrupt participant in the criminal endeavor he ascribed to appellant Austin, the evidence against appellant was therefore insufficient to sustain his conviction in view of our legislature's pronouncement that '(a) conviction shall not be had on the testimony of an accomplice unless he is corroborated.' NRS 175.291(1). We are constrained to agree.

As counsel for appellant contends, the trial transcript contains nothing inculpatory of Austin except the testimony of Jesse Martin, a heroin dealer with a lengthy and varied criminal history who, when apprehended with 'a whole bunch of narcotics' several months before the incident concerned herein, had undertaken to incriminate others in exchange for cash and to avoid prosecution for his own criminal activities. Without Martin's testimony the record shows only that on October 3, 1969, Austin drove from Las Vegas to Beatty Nevada. There, at the Exchange Club, a casino-restaurant serving also as a bus station, Austin met Tanya Edwards, who had arrived by bus from Portland, Oregon, some eight hours earlier. Austin bought a glass of milk. Then, both left the casino and entered Austin's car; Miss Edwards placed her luggage on the rear seat; police officers appeared, showed a search warrant, and found heroin concealed in a slipper in Edwards' luggage. ¹

Austin thus stands convicted of possessing narcotics which arrived in Nevada with Edwards, which never thereafter came into Austin's actual possession, and over which he exercised no dominion whatever on the date of the alleged offense. Therefore, it is vital to appreciate that the conviction must be justified, if at all, on the theory that, through Martin, the State proved Austin, as owner of the narcotics, constructively possessed them through Edwards, and before her through Martin himself. ² It is vital, we say, because without recognition of this, Martin's status as an accomplice to the crime charged cannot properly be evaluated. The rationale that one participant in a criminal scheme is culpable for the others' acts is a sword that cuts both ways. And from Martin's testimony a chronology of events emerged, principally on cross-examination, that would constitute him an active criminal participant with Austin in possession of the heroin concerned.

According to Martin, about September 23, Austin proposed that Martin leave Las Vegas 'to sell narcotics for him'; Martin agreed, without learning how, where or when he was supposed to go. On September 26, Martin testified, he asked Austin about the trip; then he learned Austin wanted him to leave Las Vegas to market heroin in Portland, Oregon, a city with which Martin had no familiarity. Pursuant to instructions from Austin, he 'checked the bus station and got the amount of the fares from Las Vegas to Portland and the time that the bus would leave.' At 6:00 p.m. that evening, Martin met Austin and Edwards; 'she said yes she was ready to go'; 'then Austin told me to be ready at 9 o'clock.' At this point, according to Martin, he 'went home and called the police department.' However, what he told the police at this juncture is not clear.

As Martin's story proceeded, Austin and Edwards picked him up in Austin's car; Austin stopped, went into the desert, came back and gave Martin ten balloons containing 20 heroin capsules each, a total of 200 'caps,' retail value $5 each, a total of $1,000. Then Austin drove them to Beatty, where Martin last saw him 'approximately 11 o'clock that night on the 26th' when Austin gave Edwards money to purchase their tickets to Portland. Upon arrival there about 10:00 p.m. September 27, they rode around in a taxi an hour or so, then took separate motel rooms. Thereupon, Martin went out to find where the 'fast action' was. (As Martin said Edwards did nothing after their arrival, except to hold some of the heroin Martin transported there, Martin's story does not account for why Austin sent her along, as supposedly he did.)

Martin first said he had no money when they arrived, then said he had less than $30; he stayed eight days; still, he claimed he sold no narcotics. Instead, he said, he proceeded to search out addicts and give the narcotics away, leaving with Edwards all that he did not take with him 'down on the street.' (Considering expenses necessarily inherent in the venture, it is hard to see how Austin could profit from it, even had Martin sold everything supposedly entrusted to him.)

Martin explained he gave away the narcotics because Austin told him to generate business by distributing samples. He kept giving them away, he said, because no 'contact' appeared to show him the ropes, as Austin supposedly had promised. Yet it was apparent Martin needed no one to show him the ropes; he is justifiably proud of his own expertise in the narcotics trade. ³ Probably because he could not explain his survival in any other way, he admitted that he accepted meals and favors from addicts he 'raised,' but denied accepting money. He was communicating with the Las Vegas police, he claimed, but did not tell them of his own criminal activities because he 'figured it was none of their concern.' His own activities, he said, were not a crime if he 'didn't get caught.' (Inasmuch as Martin did not tell the police what he was actually doing in Portland, and Edwards concededly did not actively participate in Martin's criminal pursuits, what truthful information he could have reported to the police is something of a mystery.) ⁴

According to Martin, only four days after Edwards and Martin arrived in Portland, Austin became disgruntled because Martin was not making any money there, and directed that Edwards should return with such narcotics as were undistributed. (Martin testified that the night before Edwards left--which would have been October 1, as she had to leave Portland October 2, to arrive in Beatty October 3--he was with her when she called Austin. This testimony was at odds with that given at the preliminary hearing, when Martin testified he was present only at the time Edwards called Austin from the bus depot on arrival.) When Austin asked that Edwards return, Martin allowed her to leave with seven balloons of heroin (140 'caps'). Of the balance that he retained, he says he supplied one balloon (20 'caps') to the police; he 'gave away' the contends of the other balloons (40 'caps') over the course of his stay. Martin testified he was in Edwards' motel room on October 2 as she finished packing, and saw her pack the balance of the narcotics that Martin had given her. When she departed, he called the bus station, ascertained when her bus would depart Portland and arrive in Beatty, and called the police in Las Vegas to tell them where Edwards had packed the narcotics he had given her, and where to be to arrest her and Austin. ⁵

The police apparently did not know that, in fact, Martin had been purveying heroin in Portland; for they obtained a search warrant upon an affidavit that assumed Martin was merely there keeping Miss Edwards and the narcotics and surveillance. Martin's testimony does establish, nowever, that he was a heroin dealer, and had been well over a year before his alleged transaction with Austin. Some three months before events involved in Austin's conviction, Martin admitted, he was apprehended with 56 'caps' of heroin; then, to avoid prosecution, he undertook to incriminate others, and supplied or fabricated evidence on at least one other associate besides Austin and Edwards. From testimony of police officers as well as Martin it is clear that in exchange for Martin's co-operation and testimony, the police gave Martin money when he requested it and refrained from prosecuting him. ⁶ The courts have long recognized not only that the uncorroborated testimony of an accomplice has doubtful worth, but that his incrimination of another is not corroborated simply because he accurately describes the crime or the circumstances thereof. ⁷ Our legislature, as legislatures in a multitude of other states, has codified this historic view. NRS 175.291 provides:

'1. A conviction shall not be had on the testimony of an accomplice unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.

'2. An accomplice is hereby defined as one who is liable to prosecution, for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.'

It is therefore apparent: first NRS 175.291(1) requires us to consider whether Martin has been adequately corroborated, assuming he is an 'accomplice'; and, second, if no 'corroboration' is found, NRS 175.291(2) requires us to decide whether Martin's participation in the criminal endeavor he attributed to Austin constituted Martin an 'accomplice.' We will consider these issues in the order stated.

1. Could Austin's proximity to Edwards constitute 'corroboration' of testimony by Martin showing that Austin knew she possessed narcotics, that Austin owned the narcotics, and that Austin therefore constructively possessed them through Edwards?

Under statutes such as NRS...