Cavanaugh v. State, 16357
| Decision Date | 04 December 1986 |
| Docket Number | No. 16357,16357 |
| Citation | 102 Nev. 478,729 P.2d 481 |
| Parties | Patrick James CAVANAUGH, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Lovell, Bilbray, Potter & Gewerter, Las Vegas, for appellant.
Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty. and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.
Appellant Patrick Cavanaugh was the mastermind of a fraudulent scheme to purchase furniture with stolen, forged checks. A "secret witness" article in a Las Vegas newspaper pictured Cavanaugh's putative wife, Diana, as a suspect in the scheme and offered a reward for information concerning the woman and her participation in the fraud. The State's theory, presented through testimony at trial, was that Cavanaugh believed that an acquaintance, Nathaniel "Buster" Wilson, had seen the article displaying the photograph of Diana and intended to inform the police. In order to prevent Wilson from contacting law enforcement authorities, Cavanaugh brutally murdered him. Cavanaugh first shot Wilson in the face, then, after discovering the victim was still alive several hours later, cut out his vocal cords and shot him two more times in the head. Cavanaugh then cut off the victim's hands and feet with an electric saw, and attempted to cut off his head. He used acid in an attempt to remove the prints from the victim's fingers, then disposed of the remains in several locations. Cavanaugh was convicted of first-degree murder with use of a deadly weapon and sentenced to death. His appeal raises numerous issues, but none merits reversal. The conviction and sentence are, therefore, affirmed.
Cavanaugh argues that the trial court lacked jurisdiction because the sole evidence that the crime occurred in Nevada was the testimony of an accomplice, Diana Cavanaugh. However, Nevada law requires only that accomplice testimony be corroborated by other evidence linking the accused to the crime. NRS 175.291. There is no additional requirement of corroborative evidence linking the crime to the state. Pamela Cavanaugh, one of appellant's former putative spouses, testified that appellant showed her the victim's severed hand and told her he had cut out the victim's vocal cords before killing him. That satisfies the statute. 1
Cavanaugh contends that the trial court erred in allowing Diana Cavanaugh, his putative wife, to testify. We disagree. Although Nevada allows both a privilege as to confidential marital communications and an immunity from adverse spousal testimony, NRS 49.295, it appears that neither protection is available on the facts of this case.
Diana Cavanaugh participated in a marriage ceremony with appellant on November 26, 1979. At that time, Cavanaugh was married to one Toni Cavanaugh. Toni, however, obtained an annulment in New Jersey on June 13, 1980. The annulment declared their union void from its inception, but expressly was based solely on the assertion that, when Cavanaugh married Toni, he was lawfully married to Pamela Cavanaugh. Such was not the case; the marriage to Pamela was ineffective because Pamela was, at the time of her marriage to Cavanaugh, married to one Lorenzo Preciado. Since the New Jersey court apparently had jurisdiction to render its decree of annulment, we are bound to give that decree the effect it would have in New Jersey. See 28 U.S.C. § 1738 (1982). However, New Jersey has not indicated whether, on facts such as those of this case, its annulment would serve to entitle a subsequent putative spouse to the protection of immunity, in a criminal trial, from the testimony of a party to the allegedly annulled union. 2
Ordinarily, one determines the availability of a spousal privilege by ruling on the validity of the marriage. An obviously void marriage creates no legal relationship to be protected, and a demonstrably valid marriage could hardly fall without the protection of the statute. However, while this approach normally affords certainty, it may also generate needless repercussions. Where, as here, we could resolve the question of validity only by speculation, we prefer not to disturb a host of implicated interests on the basis of such tenuity. We prefer, instead, to employ an approach more finely tuned to the one issue at hand: whether the Legislature intended the privilege to be applicable on the facts of this case.
The rationale for spousal privilege or immunity is that the relationship between the accused and the prospective witness so merits protection that society is willing to preserve its sanctity even at the expense of ascertaining truth. The relationship here at issue does not merit such protection; it is a clear example of casual indifference to the law. Evidence revealed that appellant and Diana Cavanaugh both believed, when they married, that the marriage to Pamela Cavanaugh might still be valid. They therefore used fictitious names to avoid the possibility that the marriage to Pamela would be noticed. Further, at that time Cavanaugh was still married to Toni, for the mistaken annulment (which, in turn, may have been obtained through deception) had not yet occurred. Cavanaugh apparently was also married to one Tommi Cavanaugh while married to one or more of the other women. Worse yet, Diana testified that she did not care; it was of no consequence to her whether, at the time she married Cavanaugh, he had terminated his other marriages. A relationship so fraught with deception and disregard for our marital laws is not entitled to the protection of our evidentiary privilege or immunity, where the validity of the marriage is gravely in doubt and may not be determined with certainty under existing law. 3 Admission of Diana Cavanaugh's testimony was not erroneous.
Cavanaugh unsuccessfully moved for declaration of a mistrial on four occasions. We conclude that the trial court did not err in denying those motions.
The first motion was based on law enforcement officers' having informed a prospective defense witness that if he lied under oath, he could be punished for perjury. A mere warning of this nature does not infringe a criminal defendant's rights even if, as a result, his prospective witness declines to testify. See United States v. Harlin, 539 F.2d 679 (9th Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 362, 50 L.Ed.2d 313 (1976); cf. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).
Another motion involved an unauthorized communication between the trial court and the jury. The jurors, during their penalty deliberations, asked the court whether one sentenced to life imprisonment without the possibility of parole might somehow be paroled. The trial court, without contacting counsel, instructed the jury to refer to an instruction on executive clemency. While the court erred in answering without notice to counsel, NRS 175.451; Varner v. State, 97 Nev. 486, 634 P.2d 1205 (1981), the error was harmless, for the instruction was correct. 4 See id.
Questions from the bench prompted still another mistrial motion. While Cavanaugh was on the stand, the court asked whether he had any doubt that the decomposed body found in California was that of Buster Wilson. The sole issue is whether, after Cavanaugh answered that he had no doubt the body was Wilson's, the trial court abused its discretion in allowing the trial to go forward. See Reese v. State, 95 Nev. 419, 596 P.2d 212 (1979). We hold that it did not, for three reasons: there was strong evidence of identification; Cavanaugh's defense strategy had not included affirmative denial that the body was that of Mr. Wilson; and Cavanaugh raised no specific contemporaneous objection to the question.
Finally, the trial court did not err in refusing to declare a mistrial after the prosecutor elicited testimony that a Mr. Cioffe, Diana Cavanaugh's brother, was dead. Cavanaugh argues that the prosecutor wished to induce a belief that he had killed Cioffe. However, the trial court directed full disclosure that Mr. Cioffe died in an unrelated traffic accident. There was no prejudice; the court did not abuse its discretion in allowing the trial to continue.
Cavanaugh challenges several of the trial court's rulings on admissibility of evidence. However, there was no reversible error.
First, the trial court did not err in admitting evidence of Cavanaugh's conviction on more than thirty counts of fraud. The convictions were for participation in the fraudulent scheme known to Mr. Wilson, for which knowledge he was permanently silenced. Evidence of other instances of conduct is admissible to prove the motive for a crime. NRS 48.045(2). Thus, there was no error. 5
Second, assuming arguendo that the trial court may have erred in excluding as irrelevant a transcript of testimony of an unavailable witness, no prejudice resulted. Cavanaugh wished to introduce the testimony of an Officer Holcomb to show that Cavanaugh cooperated with the police when questioned about the fraudulent scheme discussed above. However, a Detective Allen testified extensively as to Cavanaugh's cooperativeness at the time of his arrest. 6 Further, Officer Holcomb's testimony was to the effect that Cavanaugh's excessive cooperation aroused suspicion. Detective Allen's testimony was more favorable to Cavanaugh. Thus, reversal is unnecessary. NRS 47.040(1); 178.598.
Third, the trial court did not err in admitting into evidence a box of bullets allegedly unlawfully seized during a search in the course of an investigation of Cavanaugh's participation in the fraud. 7 The exclusionary rule exists to deter misconduct; we have already held that where (1) the allegedly improper search involved a completely different crime, (2) the officers involved had no idea that the knowledge they gained would become useful in the prosecution of another offense, and (3) the violation of rights was unintentional, there is...
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