Bishop v. State

• Decision Date: 31 August 1976
• Docket Number: No. 7587,7587
• Citation: 554 P.2d 266,92 Nev. 510
• Parties: Barnell BISHOP, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 266

554 P.2d 266

92 Nev. 510

Barnell BISHOP, Appellant, v. The STATE of Nevada, Respondent.

No. 7587.

Supreme Court of Nevada.

Aug. 31, 1976.

Morgan D. Harris, Public Defender, and A. Bill Maupin, Deputy Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., and Dan M. Staton and H. Leon Simon, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

BATJER, Justice:

Early on the morning of April 23, 1971, the burned bodies of Alfred, Ida, and John Lizzio were discovered on the floor of a fire-damage building used by Cantrell Cleaners in Las Vegas, Nevada. The other victim, Jake Wright, with his clothing afire, managed to escape the burning building at 12:01 a.m. on April 23, 1971, and to run across Charleston Boulevard seeking help. Wright lived for 31 days after the fire and was able to describe to investigating officers and others the events of the crime as he remembered them. At trial several witnesses were permitted to relate the information Wright had given to them.

Before his death he told investigators that a black man came into the cleaning establishment, wielded a chrome pistol and said 'this is a stickup,' forced him, as well as Alfred Lizzio and John Lizzio, prone on the floor, went through their pockets and took the keys to the safe. During this episode Ida Lizzio came into the building. After a scuffle with the assailant she was forced to the floor. All were bound, clothing was thrown on them and cleaning solvent splashed on the clothing which was set afire. Pathologists testified that all deaths were caused by third degree burns.

On the evening of April 23, 1971, at the Southern Nevada Memorial Hospital, Wright, viewing a 1971 photograph, identified appellant as the assailant. A chrome pistol was discovered by the police on the work bench near the victims. Bishop had redeemed that same gun from a pawn shop in Phoenix, Arizona, on April 20, 1971. One witness testified that he had seen him in a nearby 7--11 Store late on the evening of April 22, 1971.

The operator of a casino in Lovelock, Nevada, testified that Bishop had lost a considerable amount of money there between April 27 and May 1, 1971. Part of that money was silver certificates. Other testimony indicated that the victim, Alfred Lizzio, had collected silver certificates and kept them in a safe place at the cleaning establishment.

Bishop had registered at the Four Queens Hotel in Las Vagas, Nevada, on the evening of April 21, 1971, and he checked out at 6:34 a.m. on April 23, 1971. He was arrested in Reno, Nevada, on May 1, 1971. Several months after the murders a bank bag similar to one found at the cleaning establishment was inadvertently found in the room occupied by him at the Four Queens Hotel. Laundry tags in the bank bag matched tags used at Cantrell's Cleaners. The bank bag was introduced as evidence at the trial.

Bishop's traveling companion corroborated his redemption of the gun in Phoenix, Arizona. She also testified that he left the hotel room during the evening of April 22, 1971, and that she did not see him again until the morning of April 23, 1971, and on that morning she saw a bank bag in the hotel room for the first time.

Sylvester Scott testified that Bishop admitted the commission of the crime to him. Raymond Berkley testified that he heard him say: 'I'm not going to fry; they can't prove anything, even though I did do it.' Both were his fellow inmates in the Clark County Jail. A police officer testified that in referring to one of the jail guards, he said: 'I'm going to make him number five.'

Bishop took the witness stand where he admitted being at the Four Queens Hotel, claimed he sold his pistol to two black men, admitted he traveled to Reno and Lovelock, Nevada, denied any connection with the murders and denied that he had made any admission to fellow inmates or police officers. In rebuttal the state called William Rehn who testified that he saw Bishop riding in an automobile that sped through the intersection of Charleston and Maryland Parkway near Cantrell's Cleaners shortly before midnight on April 22, 1971.

The jury found Bishop guilty of four counts of murder in the first degree, robbery and second degree arson. He was sentenced to consecutive terms of life in prison without the possibility of parole on each of the murder counts, a consecutive term of fifteen years for robbery and a consecutive term of ten years for second degree arson.

He now contends that the trial court erred in denying his pretrial motions for a change of venue and to quash the Clark County master jury panel, erred during the course of his trial when it admitted into evidence the long undiscovered bank bag and the hearsay statements and photographic identification of appellant by Jake Wright, and that it further erred when it denied his motion to dismiss the second amended information and allowed the state to present part if its case in chief on rebuttal.

We find all of appellant's assignments of error to be without merit and therefore affirm the judgment of the district court.

1. Prior to jury selection, Bishop moved to change the venue of the trial pursuant to NRS 174.455(2); ¹ the court denied this motion. See Hanley v. State, 80 Nev. 248, 391 P.2d 865 (1964). He concedes that NRS 174.455 is a codification of our case law but contends that his right to due process is infringed and prejudice must be presumed by the requirement that voir dire examination must first be conducted and that it must become apparent to the trial court that a fair and impartial jury cannot be selected before a change of venue can be granted in a criminal action.

The newspaper article 'Voice from the Graves', about which the appellant has registered his chief complaint, was not inflammatory but factual in its context. It was published on May 23, 1971. Appellant's trial did not commence until August 20, 1973.

The constitutional standard of fairness requires that a defendant have 'a panel of impartial, 'indifferent' jurors.' Irvin v. Dowd, 366 U.S. at 722, 81 S.Ct. at 1642. 'Qualified jurors need not, however, be totally ignorant of the facts and issues involved.' Murphy v. Florida, 421 U.S. at 799--800, 95 S.Ct. at 2036.

The appellant has failed to show that the posture or setting of his trial was inherently prejudicial or that the process of selecting the jury allows any inference of actual prejudice.

2. We turn now to consider appellant's contention that there had been discrimination in the jury selection and that the trial court erred in refusing to quash the master jury panel. A state is obligated to a defendant to impanel an impartial jury. ² A jury selection violates the Sixth Amendment or the due process and equal protection clauses of the Fourteenth Amendment only if it can be shown that members of the appellant's race were excluded systematically from jury duty. '(P)urposeful discrimination may not be assumed or merely asserted.' Swain v. Alabama, 380 U.S. 202, 205, 85 S.Ct. 824, 827, 13 L.Ed.2d 759 (1965). Such discrimination must be proved. Tarrance v. Florida, 188 U.S. 519, 23 S.Ct. 402, 47 L.Ed. 572 (1903).

In Ristaino v. Ross, 424 U.S. 589, 596, 96 S.Ct. 1017, 1021 n. 8, 47 L.Ed.2d 258 (1976), it was noted by the High Court: 'In our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption--as a per se rule--that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, or the choice of religion. See Connors v. United States, 158 U.S. 408, 415, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895).'

In authority relied upon by appellant it was held that systematic exclusion or underrepresentation of Negroes summoned for jury duty does not comply with the equal protection clause of the Fourteenth Amendment. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). Here the trial court, after a long and extensive hearing, found as a matter of fact a 'possibility of de minimis underrepresentation of persons of the Negro race,' but no showing of intentional or purposeful exclusion. Therefore, the requirement of significant exclusion or underrepresentation was not met. Brown v. Allen, supra.

We are not confronted with a fact pattern such as found in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), where there was proof that Negroes constituted a substantial segment of the population of the jurisidiction, that some Negroes were qualified to serve as jurors and that none had been called for jury service over an extended period of time; or as in the case of Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184 (1947), where no Negro had served on the criminal court grand or petit jury for a period of thirty years; or even the facts found in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), cited and relied upon by both appellant and respondent, where Negroes constituted 26% of the population of Talladega County, Alabama, yet from 1953 to 1965 jury panels averaged 10% to 15% Negroes, and from 1950 to 1965 no Negro had served on a petit jury. There the High Court affirmed the Alabama Supreme Court which had in turn affirmed the Alabama trial court's denial of Swain's motion (1) to quash the indictment, (2) to strike the trial jury venire and (3) to void the trial jury; all based on discrimination in the selection of jurors.

'Fairness in (jury) selection has never been held to require proportional representation of races upon a jury.' Akins v. Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945).

'. . . Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race.

'. . . (T)he Constitution requires only a fair jury selected without regard to race. . . . An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor...