Bean v. State

Decision Date03 February 1970
Docket NumberNo. 5788,5788
Citation465 P.2d 133,86 Nev. 80
PartiesThomas Lee BEAN, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Richard O. Kwapil, Jr., Jerry Carr Whitehead, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., C. Frederick Pinkerton, Deputy Dist. Atty., Washoe County, Reno, for respondent.

OPINION

ZENOFF, Justice.

Thomas Bean, age 18, was convicted of the murder of Sonja McCaskie and sentenced to death. He had not known the victim. During a customarily sleepless night he was prowling a neighborhood looking for women's clothing on clothes lines which was his characteristic for sexual gratification. He had rape in mind if the opportunity presented itself. Finding a door to Sonja's apartment unlocked he removed his shoes, entered, took several precautions against detection and did several other things preparatory to committing the act of rape upon Sonja whom he observed sleeping alone in her bedroom. Using a garrote which he had brought with him he twisted it around her neck and increased the pressure when she awakened and pleaded for her life. It is not clear whether she was still alive when he stabbed her several times with his knife and committed the act of rape, but he completed the act of rape and murder.

Thereafter, he dragged her body out of the bedroom, cut her heart out and threw it one the floor, cut off her head, tried to skin her like a carcass in a slaughter house, slit her from the crotch to her neck and then stuffed the body in a hope chest. Before that he had tossed the head into the chest 'like a basketball.' A foot was hanging out of the chest so he cut that off and left it lying on the floor. During all of this he had stabbed her many times with his knife and with knives taken from Sonja's kitchen. Bean then lolled around listening to her musical records and tiring of that took her sports car for a joy ride, returned, and left. A statement of facts is found in Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), when this court affirmed his conviction. Bean now asserts through our post-conviction statute, NRS 177.375, constitutional rights that had not been otherwise reviewed.

Decisions of the U.S. Supreme Court rendered after the appeal directly relate to several of the asserted issues now before this court. Those issues are (1) that members of the jury venire were improperly excused (2) the publicity surrounding the trial was of such nature a fair trial was denied him, and (3) that he had been denied effective assistance of counsel. This court referred the petition to the district court for an evidentiary hearing.

To the contentions that (a) the jury was not representative of the ocmmunity where the trial was held (b) that pretrial publicity precluded a fair trial, and (c) that Bean was denied effective assistance of counsel the trial court ruled for the state on the last two, but did not rule at all on the first but referred that question to this court because we had not asked the trial court to go into the subject in the order of reference.

A. THAT THE JURY SELECTION VIOLATES THE STANDARDS ESTABLISHED IN WITHERSPOON V. ILLINOIS, 391 U.S. 510, 88 S.CT. 1770, 20 L.ED.2D 776 (1968), DECIDED BY THE U.S. SUPREME COURT THREE YEARS AFTER WE REVIEWED BEAN'S TRIAL IN BEAN V. STATE, SUPRA.

At Bean's trial a panel of 80 prospective jurors was drawn. Thirteen of that number were excused by the court after the typical following exchange in the voir dire examination:

DEFENSE COUNSEL: 'Do you have a conscientious qualm against the death penalty?'

JUROR: 'Yes, I do.'

QUESTION: 'Do you feel that you could not render a decision for the death penalty?'

ANSWER: 'I am afraid not.'

DEFENSE COUNSEL: 'I will anticipate the state's challenge and will stipulate, you honor.'

PROSECUTOR: 'We will stipulate, your honor.'

THE COURT: 'Based upon the stipulation, I am going to excuse you from serving and thank you very much for coming.'

1. The U.S. Supreme Court in Witherspoon declared that a jury which excludes all those persons with some bias against the death penalty cannot perform the task of determination of penalty demanded of it, and that a death penalty imposed by such a death-oriented jury cannot stand. A man who opposes the death penalty no less than one who favors it can make a discretionary judgment entrusted by the state and can thus obey the oath he takes as a juror. p. 519, 88 S.Ct. 1770. Before he can be excluded a juror must make 'unmistakably clear' (1) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (2) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt. pp. 522--523, footnote 21, 88 S.Ct. 1770.

The standard or test pronounced and mandated by that decision is directed at the questioning of jurors who are summoned to serve in a capital case. If they simply state that they are against capital punishment and are thereby excused, reversible error is committed. Whatever penalty has been imposed by a jury in that case cannot stand.

At the time of Bean's trial on June 24, 1963 our statute specifying grounds for challenge of jurors for cause NRS 175.105(9) provided: 'If the offense charged is punishable with death (a ground for challenge is), the entertaining of such conscientious opinions as would preclude his (the juror) finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.' 1

The U.S. Supreme Court directs that in order for a challenge to be properly asserted under that statute there must be a thorough examination of each juror who asserts a bias for or against the death penalty to determine whether or not his bias can be set aside and whether the juror could nevertheless determine the issue of innocence or guilt and penalty upon the evidence presented before him. If he can then he is a qualified juror and must be allowed to sit unless excused by peremptory challenge. The fact of his bias alone is not ground for discharge from the jury. The extent of Witherspoon does not destory the trial, only the penalty, but its ruling is retroactive. 2

In the case of In Re Anderson, 69 Cal.2d 613, 73 Cal.Rptr. 21, 447 P.2d 117 (1968), the California court ruled that where one or more of the prospective jurors were excused on the ground that it was not unmistakably clear that he would automatically vote against the imposition of capital punishment without regard to any evidence, or that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's guilt, error was committed. Statements such as: 'I am opposed to the death penalty,' 'I don't believe in capital punishment,' are insufficient to disqualify such a juror because it is not clear that he or they could not set aside those conscientious convictions and determine the case from the evidence. See also, In Re Eli, 77 Cal.Rptr. 665, 454 P.2d 337 (Cal.1969); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Ruth, 170 S.E.2d 897 (N.C.1969).

2. Defense counsel's failure to object to the exclusion of the prospective jurors does not bar him from now claiming error. There is a duty upon the court to make it clear to the prospective juror that opposition to the death penalty or conscientious scruples against that penalty would be insufficient to disqualify him from service. Failure to do so is understandable since the trial was long before the U.S. Supreme Court rendered its decision in Witherspoon which sets forth new rules that the states are required to follow and to apply retroactively. In Re Arguello, 76 Cal.Rptr. 633, 452 P.2d 921, 922 (Cal.1969). Thus, there is no merit to the defendant's failure to object in the trial court to the exclusion fo the member as a bar to the present claim of error. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); People v. Risenhoover, 73 Cal.Rptr. 533, 447 P.2d 925, 936 (Cal.1968); In Re Anderson, supra; People v. Sears, 74 Cal.Rptr. 872, 450 P.2d 248 (Cal.1969). A stipulation that a prospective juror may be excused for cause, made upon the erroneous assumption that the juror is disqualified, must be similarly treated.

3. Bean had three peremptory challenges, unused, the state one, but even though peremptory challenges still remained the court of California holds that to be of no effect. People v. Sears, supra, 450 P.2d at 257; People v. Beivelman, 73 Cal.Rptr. 521, 447 P.2d 913 (Cal.1968). Although Bean had three unexercised peremptory challenges and one remained for the state, the factor of unused peremptories could not overcome the total number of jurors who were invalidly excused even were we permitted to accept the leftover peremptories argument. People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208, 227 (1968). The record here shows a systematic exclusion of jurors who were not examined sufficiently once they answered regarding their feelings about the death penalty.

4. The question by the court, 'Is it your frame of mind that you could not and you would not, under any circumstances, regardless of what the evidence might be, return a verdict carrying with it the death return a verdict carrying with it the death penalty?' was satisfactory in People v. Nye, 78 Cal.Rptr. 467, 455 P.2d 395, 399 (Cal.1969). But the words 'in a proper case' ordinarily lacking in precise unmistakable clearness may be acceptable if in the general interrogation by the court it is previously made clear that what constitutes a proper case for the death penalty was for the determination of the individual jurors. See also People v. Mabry, 78 Cal.Rptr. 655, 455 P.2d 759 (Cal.1969); People v. Williams, 79 Cal.Rptr. 65, 456 P.2d 633 (Cal.1969); People v. Vaughn, 78 Cal.Rptr. 186, 455 P.2d 122 (Cal.19...

To continue reading

Request your trial
31 cases
  • Duffy v. State, 86-21
    • United States
    • United States State Supreme Court of Wyoming
    • 5 Diciembre 1986
    ...to life, the full statutory range. Spillers v. State, 84 Nev. 23, 436 P.2d 18, 22-23 (1968), overruled on other grounds, Bean v. State, 86 Nev. 80, 465 P.2d 133 (1970). There was no discussion concerning a minimum spread that would allow for the possibility of In Ard v. State ex rel. Superi......
  • Harris v. State, 42896
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 23 Septiembre 1970
    ...... State v. Laskey, 21 Ohio St.2d 187, 257 N.E.2d 65. Cf., however, Bean v. State, 465 P.2d 133. (Nev.) .         In Pittman v. State, supra, in discussing the state practice prior to Witherspoon, this Court ......
  • Hynes v. Tomei
    • United States
    • New York Court of Appeals
    • 22 Diciembre 1998
    ......and . Dennis C. Vacco, Attorney-General of the State of New York, . Intervenor-Respondent. . Court of Appeals of New York. . Dec. 22, 1998. . Page ...State, 84 Nev. 23, 436 P.2d 18, overruled on other grounds Bean v. State, 86 Nev. 80, 465 P.2d 133). . 5 While the Supreme Court has never overruled Jackson, it ......
  • Texas v. Mead
    • United States
    • United States Supreme Court
    • 21 Febrero 1984
    ......1015, 78 L.Ed.2d ---- (1984).1 That question is not, however, presented by the State of Texas in its certiorari petition in this case.2 . Page 1042 . Since the question Justice ...100, 325 N.E.2d 186, 190 (1975); Peterson v. State, 242 So.2d 420, 426 (1970); Bean v. State, 86 Nev. 80, 465 P.2d 133, 138 (1970); Jones v. State, 555 P.2d 1061, 1066 (Okl.Cr.1976); ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT