Beasley v. State

• Decision Date: 18 August 1965
• Docket Number: No. 4816,4816
• Citation: 81 Nev. 431,404 P.2d 911
• Parties: Milton Norris BEASLEY, Appellant, v. STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 911

404 P.2d 911

81 Nev. 431

Milton Norris BEASLEY, Appellant, v. STATE of Nevada, Respondent.

No. 4816.

Supreme Court of Nevada.

Aug. 18, 1965.

Robert Santa Cruz, Singleton & DeLanoy and Rex A. Jemison, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Edward G. Marshall, Clark County Dist. Atty., Las Vegas, for respondent.

COLLINS, District Judge.

This is an appeal from a conviction of first degree murder, for which appellant was sentenced to life imprisonment without possibility of parole.

WILLIAM T. GREEN, the victim, was an informer for the Narcotics Division, United States Treasury Department. He was shot and killed at approximately 9:30 P.M., August 11, 1961, in his automobile parked in the 1500 block of North C Street, Las Vegas, Nevada. Green, as an informer, had purchased narcotics from persons known as Harris, Patterson, and Valrie, and except for his death, would have been a witness against them in a pending trial.

By information, appellant Beasley, one Black, Harris, Patterson, and Valrie were charged with the murder of Green and for conspiracy to commit the murder. Black was dismissed as a defendant. Patterson pleaded guilty to second degree murder leaving appellant, Harris and Valrie to be tried. Appellant Beasley's motion for a separate trial was granted. Harris and Valrie proceeded to trial which resulted in a 'hung jury'. They were retried and acquitted.

Appellant cites eleven prejudicial errors occurring during the trial and asks either a new trial or a reversal of the conviction and discharge of the defendant.

The errors alleged are:

1. Judge Mowbray erred in overruling the order of Judge Sexton which ordered that a copy of the transcript of prior proceedings be prepared at county expense for the defendant prior to the start of trial.

2. The Court erred in permitting Ron E. Davis to express an opinion as to the time the defendant's fingerprints were placed upon the victim's automobile.

3. The Court erred in permitting Lt. Handlon to testify as to oral admissions of the defendant while the defendant was illegally detained and deprived of the right of counsel.

4. The Court erred in permitting Ruby Talley to testify as to hearsay statements of Vase Valrie.

5. The Court erred in not permitting defense counsel to inquire as to how long certain prosecution witnesses had been addicted to heroin.

6. The Court erred in permitting De Wayne Wolfer to testify at great length as to the kind of .25 caliber pistol which was used in the crime.

7. The Court erred in permitting Leonard Eagle to testify as to a purchase 0f an automobile by the defendant after the commission of the crime.

8. The Court erred in withdrawing Instruction No. 27 after argument to the jury and giving in its place an instruction which failed to admonish the jury that no inference of guilt be drawn from the silence of the defendant.

9. The defendant was deprived of due process by reason of the failure of the Court to speedily appoint an attorney following arrest.

10. The defendant suffered an unconstitutional infringment upon his right to remain silent.

11. There was insufficient legally admissible evidence to support a conviction.

Certain of these errors are prejudicial requiring a reversal and retrial. They will be discussed in the order appearing above.

1. At the commencement of the trial on February 3, 1964, Judge Mowbray denied appellant's motion for continuance. The motion was based on failure to comply with an order of Judge Sexton, entered December 13, 1963, that appellant be supplied with a copy of the transcript of the trial of Harris and Valrie. Appellant has previously been determined indigent. He was originally to have been tried jointly with Harris and Valrie but had secured a severance order that he be tried separately. The issues and witnesses in the two trials were substantially the same.

Judge Sexton had jurisdiction to enter his order. Failure to supply the transcript or continue the trial until it was furnished is prejudicial error. This Court has previously passed upon the point. State ex rel. Marshall v. Eighth Judicial District Court, (1964) 80 Nev. 478, 396 P.2d 680. This result is compelled by the principle announced in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

2. Ron E. Davis, a witness for the State, was permitted to express an opinion to the jury that he found several finger prints and one palm print of appellant Beasley on the victim's automobile. He was also allowed, over objection, to express an opinion as to the time these prints were placed there. The latter ruling is claimed to be prejudicial error.

The evidence clearly established witness to be an expert in lifting, identifying and comparing finger prints. The trial court was entitled to allow him to express an opinion as to the finger and palm prints of appellant found on the automobile. He should not, however, have been allowed to express his opinion as to the time they were placed there.

In order for an expert finger print witness to express an opinion as to when finger prints were placed on a given object, a 'control test' must first be conducted. In a 'control test' a series of latent finger prints are placed on a surface and controls are humidity, dust, and heat in order to determine hu midity, dust, and heat in order to determine how long the prints would remain on a given surface and could be dusted out. Similarly, other factors such as the oiliness of the skin of the fingers and palms, physical condition of the skin of the person making the impression, surface of the object touched, heat and other obsuring factors have an effect on the time they were placed there. The witness admitted on voir dire examination he had not conducted a control test and in order to state 'positively' as to the time a print was placed on a given object he would have to conduct it.

There are limits to opinions an expert may be allowed to testify. Section 780, 20 Am.Jur., Evidence, at Page 651, states these limits:

'* * * Furthermore, the facts on which an expert opinion is based must permit of reasonably certain deductions as distinguished from mere conjectures. Notwithstanding a tendency toward the extension of the field of admissibility of expert testimony which is based upon established or generally recognized scientific principles or discoveries, it is essential that the principle or discovery from which a deduction is to be made shall have been sufficiently established to have gained general acceptance in its particular field of science.'

This Court ruled in Levine v. Remolif, (1964) 80 Nev. 168, 390 P.2d 718, 720, that an expert witness may not give an opinion if '* * * his conclusions to a substantial degree were a result of guesswork.' The identical circumstance is present here when Ron E. Davis was allowed to express an opinion as to the time appellant's finger and palm prints were placed on Green's automobile. To allow him to so testify was prejudicial error.

3. Appellant urges that error was committed when Lt. Handlon, a state's witness, was permitted to testify as to oral admissions made by appellant while in police custody in Los Angeles. On the record before us, we do not consider these circumstances to be error.

William Green, the victim, was murdered in Las Vegas the evening of August 11, 1961. Appellant Beasley was taken into custody in the early morning hours of August 15 in Los Angeles. He was held at the Los Angeles Police Station until the late evening of August 17 when he was released. While thus detained he was interrogated by Lt. Handlon of the Las Vegas Police Department and other officers, state and federal. Lt. Handlon was permitted to testify to his conversation with appellant over objection of his counsel.

The statements consisted substantially of the following:

He had checked into the Carver House alone and had used the name of Joe Brown; he had stayed at the Melody Motel in Los Angeles. He refused to tell Lt. Handlon where he left his automobile. He stated he drove his Chrysler to Las Vegas, stayed at the Carver House, signing the name of Joe Brown, and several men and girls had visited him. He denied knowing the hotel clerk, Bates, and denied that he asked Bates where to find Green. He later admitted that he knew Green, but had had no contact with him in Las Vegas and had just said hello to him. He stated he had seen Green once at a gambling house, but there had been no contact; he did not know what kind of car Green drove. He stated he left Las Vegas about 7:00 o'clock, arriving in Los Angeles at 11:00 o'clock and went to the Red Hut on Washington Street.

A hearing was held outside the presence of the jury at which time appellant Beasley testified he had requested the right to call attorney Barnes at the time of his booking, but was not permitted to do so. He also testified he was given no food for three days except for one meal. The trial judge specifically found against him on these statements and such finding should be accepted here.

Lt. Handlon testified he advised appellant of his constitutional rights on each of three occasions he talked with him while in custody. The only record of the first two conversations is the recollection of Lt. Handlon and appellant. The third conversation was recorded on magnetic tape and was received in evidence. At the time of the third conversation, appellant Beasley had conferred with a lawyer and refused to answer any questions except to say, 'talk to my attorney'.

Appellant urges strongly the statements or admissions should not have been received in evidence under the doctrine of Escobedo v. State of Illinois, (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. The Escobedo case has been construed by this Court, Morford v. State, (1964) 80 Nev. 438, 395 P.2d 861; Bean v. State, 81 Nev. ----, 398 P.2d 251, and has its limits. One of those limits is stated by the Supreme Court of...