Barren v. State
| Citation | 99 Nev. 661,669 P.2d 725 |
| Decision Date | 27 September 1983 |
| Docket Number | No. 13222,13222 |
| Parties | Anthony BARREN, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Frank J. Cremen and James O. Porter, Las Vegas, for appellant.
D. Brian McKay, Atty. Gen., Carson City, Robert Miller, Dist. Atty. and James Tufteland and Randall Weed, Deputy Dist. Attys., Las Vegas, for respondent.
On the morning of June 18, 1979, Rose Licker Shapiro was found unconscious in On July 20, 1979, appellant Barren was in the North Las Vegas Jail on unrelated burglary charges which the investigating officer decided did not warrant prosecution. Following Barren's release from custody, the officer took him into the detective bureau to discuss the possibility of appellant joining the military. As they conversed, appellant suddenly volunteered that the officer was the "only cop that had treated him nice," and, evidently motivated by regard for the officer, appellant then offered to reveal who had murdered "an old lady in a house trailer" in North Las Vegas.
her North Las Vegas house trailer, severely beaten about the face and head. Some ten days later, she died in the hospital from her injuries. Police initially made little headway in the investigation of the Shapiro homicide; their identification of the killer came as a result of information supplied by appellant Anthony Barren.
The first officer immediately contacted Officer King, the detective assigned to the Shapiro case. King took appellant to an interview room and read him his Miranda rights. After talking with appellant to determine whether his information was worth pursuing, King decided to record the interview. When recording equipment was secured, King again advised appellant of his Miranda rights, and the interview proceeded.
In his recorded statement, appellant recounted in considerable detail events surrounding the Shapiro beating. Appellant told King that on the evening of June 17, he and a Peter Dyer had left their boxing class and gone to the Shapiro trailer with the intention of burgling that residence. Appellant remained in the screened porch area, while Dyer broke into the trailer where it seems he unexpectedly found Shapiro at home. Although appellant had not entered the trailer's interior, he looked through a window and was surprised to see Dyer pummeling Shapiro. At this point, he became frightened and knocked on the window, yelling to Dyer to stop. Appellant then ran from the scene and only later met Dyer at his home. Thus, it would seem from appellant's story that he had never agreed Shapiro should be physically abused in any way, and that he arguably had withdrawn from the burglary scheme before Dyer administered the fatal blows.
Following the interview with King, appellant agreed to assist police by wearing an electronic eavesdropping device and initiating a conversation with Dyer. The contents of this conversation substantiated the story appellant had told to Officer King. In addition, appellant took a polygraph examination, which corroborated his story.
Although appellant clearly had been involved in a burglary, he was not arrested after his interview with King. Instead, appellant was released and driven home by King in accordance with an earlier offer by the detective. He subsequently cooperated with the police in every possible way. Although King sought prosecution of Dyer for the Shapiro murder on July 23, 1979, 1 it was not until some three weeks later, on August 15, 1979, that King submitted a request for the prosecution of appellant.
Appellant ultimately was charged with murder, robbery and burglary, and, at trial, his recorded statements were admitted over timely objection. He was convicted on all three counts and this appeal followed.
On appeal, appellant renews objections made during trial that his statements to Officer King were involuntary and inadmissible. He contends they were impermissibly induced by a promise of leniency or by the expectation that he was being interviewed solely as a witness. In response, the State argues that appellant was not in custody at the time he made the statements to King, and that consequently the protections afforded by Miranda and its progeny do not When the State seeks to introduce a statement obtained from a defendant by the police, the State must demonstrate, by a preponderance of the evidence, that the defendant's alleged waiver of his fifth and sixth amendment rights was knowing and voluntary. Laursen v. State, 97 Nev. 568, 634 P.2d 1230 (1981); Scott v. State, 92 Nev. 552, 554 P.2d 735 (1976). However, where the trial court's determination that a defendant was not improperly induced to make the statement is supported by substantial evidence, as it seems to be here, such a finding will not be disturbed on appeal. Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977).
apply. We need not address the State's argument because, assuming arguendo that appellant was actually in custody when he made statements to King, the trial court found the statements were not induced either by a promise of leniency or by appellant's expectation that he was being interviewed solely as a witness. We decline to disturb that ruling.
If appellant's statements had been induced by a promise of leniency, they arguably would have been inadmissible. See Franklin v. State, 96 Nev. 417, 421, 610 P.2d 732 (1980). It appears, though, that the alleged promise of leniency to which appellant draws attention can be viewed as no more than an innocuous and ambiguous comment by Officer King that appellant would be "going home." King made this statement in the context of an offer to drive appellant home, which he subsequently honored. From independent review of the record, we are satisfied the district court's determination that Officer King's statements were not an offer of leniency is supported by substantial evidence. Although another judge might have viewed the evidence differently, we will not disturb this finding on appeal.
Appellant's alternative argument--i.e., that his statements are inadmissible because they were induced by an expectation he was being interviewed solely as a witness--is also without merit. Officer King testified that, before taking appellant's statement, he expressly told appellant the crimes involved were felonies, and that anyone involved could be tried as a principal. King also testified he informed appellant that he was a suspect. This evidence, which the district court was entitled to credit, contradicts appellant's contention that he was induced to believe he was being interviewed solely as a witness.
Appellant was charged by grand jury indictment. He now challenges the indictment's sufficiency, arguing it failed to provide adequate notice of the offenses charged so as to enable him to prepare an adequate defense. The indictment was worded, in pertinent part:
COUNT I--Murder
[Appellant] did then and there, without authority of law and with malice aforethought, wilfully and feloniously kill ROSE LICKER SHAPIRO, a human being, by striking the said ROSE LICKER SHAPIRO repeatedly about the head with an unknown object.
[Appellant] did then and there wilfully, unlawfully and feloniously take personal property belonging to ROSE LICKER SHAPIRO, to-wit: lawful money of the United States, from the person of ROSE LICKER SHAPIRO, or in her presence, by means of force or violence or fear of injury to, and without the consent and against the will of the said ROSE LICKER SHAPIRO. 2
On its face, the indictment thus alleges that appellant was responsible for the victim's death because he personally struck her, and committed robbery by personally taking Shapiro's property from her person or presence by force or fear. Nothing in the indictment indicates either that a third party, Dyer, inflicted the beating which resulted in Shapiro's death, or that Dyer took Despite the wording of the indictment, at trial the State presented little or no evidence that appellant struck the victim or took property from her presence by force or fear. Instead, the State appears to have proceeded primarily on a theory of vicarious liability, arguing that appellant was guilty of murder and robbery on the basis of acts committed by Dyer to further a mutual plan to burgle Shapiro's residence. Thus, appellant maintains there is a fatal variance between the evidence presented at trial and the indictment, without adequate evidence being adduced to show that appellant personally committed the acts charged.
Shapiro's property from her person or presence by force or fear. As a result, the language of the indictment gives no indication that the State was proceeding on any other theory than that of appellant's direct, personal commission of the criminal acts alleged.
In regard to this contention, we must note initially that this court has previously upheld a quite similar indictment against a challenge like that now advanced by appellant. In McWilliams v. State, 87 Nev. 302, 486 P.2d 481 (1971), by brief per curiam opinion, we found an indictment charging robbery sufficient where the evidence at trial established only that the defendant had aided and abetted another in the commission of the crime. We noted:
One who aids or abets another in the commission of a felony "shall be proceeded against and punished" as a principal.... Accordingly, the charge was permissible and, since the proof established that the accused was concerned in the acts charged as an offense, the verdict may stand....
Under McWilliams, then, the defendant who aids and abets another in the commission of an offense may be charged as a principal, and an indictment charging the defendant personally committed the acts constituting the charged offense is sufficient--even though the evidence adduced at trial establishes only that the defendant aided...
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