Crew v. State, 14130

• Decision Date: 25 January 1984
• Docket Number: No. 14130,14130
• Citation: 100 Nev. 38,675 P.2d 986
• Parties: Norman John CREW, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 986

675 P.2d 986

100 Nev. 38

Norman John CREW, Appellant, v. The STATE of Nevada, Respondent.

No. 14130.

Supreme Court of Nevada.

Jan. 25, 1984.

Meshbesher, Singer & Spence, and Ronald I. Meshbesher, Minneapolis, Minn., Goodman, Stein, Terry & Quintana, Las Vegas, for appellant.

D. Brian McKay, Atty. Gen., Carson City, Robert Miller, Dist. Atty. and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

A jury convicted Norman John Crew of first-degree murder in the deaths of Theodore Zappa and Michael Nasse. The jury having recommended a term of life with the possibility of parole on each count, the trial court enhanced each sentence under NRS 193.165(1) ¹ and sentenced appellant to four consecutive life terms with the possibility of parole. We affirm appellant's conviction and sentence.

The record reflects the following facts. On the night of the murders, appellant and his brother, Russell Crew, met with the victims at Zappa's house to discuss a marijuana purchase. The Crew brothers were acting as middlemen to purchase marijuana from Nasse. Later that night, the four men drove to a deserted area near Lake Mead to consummate the transaction. The brothers shot the victims and cut their throats; they then transported the bodies to an area some twenty miles from the scene of the crime and buried them. After the disappearance of the victims was linked with the discovery of the crime scene, appellant gave two statements to the police and disclosed the location of the burial site. The second statement was suppressed because of a Miranda ² violation.

Appellant contends that he was denied a fair trial because the trial court refused to sequester the jury despite widespread public sentiment against appellant and extensive media coverage of his trial.

Under NRS 175.391 it lies within the trial court's discretion to sequester the jurors or to permit them to separate. The trial court's decision will be overturned only if appellant demonstrates that either the nature of the publicity or the jury's actual exposure to it created a probability of prejudice. See State v. Wixon, 30 Wash.App. 63, 631 P.2d 1033 (1981). In Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957), we reversed a murder conviction when the trial court failed to sequester the jury despite a daily barrage of inflammatory headlines in the Las Vegas newspapers. In Sollars prejudice could be clearly inferred from the nature of the publicity; we do not consider that the coverage of appellant's trial gives rise to the same inference. We note in passing that the most objectionable publicity--that dealing with the contents of appellant's suppressed statement--occurred before the jury was selected and the harm caused would not have been cured by subsequent sequestration. When the publicity is not of such a sensational nature that the mere risk of exposure creates a probability of prejudice, the danger can be cured by scrupulous admonishment and voir dire of the jury. See Pacheco v. State, 82 Nev. 172, 414 P.2d 100 (1966). The record shows that the jurors were examined on voir dire regarding their exposure to news accounts of the crime. The trial court admonished the jurors before each separation and collectively polled them regarding their compliance with the admonishments before giving them their final jury instructions. The publicity surrounding the trial did not create any prejudice that could not be dispelled by adherence to these procedures.

The trial court permitted Detective Maddock to testify that appellant had accompanied the police on their trip to locate the burial site. Appellant points out that the trip occurred immediately after he accompanied Detective Maddock to the police station and gave his second statement, which was later suppressed on account of a Miranda violation, and contends that the testimony should have been ruled inadmissible as a fruit of the violation of his constitutional rights. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Appellant argues that his trip to the police station with Detective Maddock and his subsequent interrogation constituted an illegal arrest in violation of the fourth amendment, and that any evidence derived from the arrest is inadmissible. See Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982). We do not agree with appellant's characterization of the events. After a hearing, the trial court found that appellant had voluntarily accompanied Detective Maddock to the police station and that he was not detained there. See Krueger v. State, 92 Nev. 749, 557 P.2d 717 (1976). We conclude that no arrest occurred at this time and that appellant's fourth amendment rights were not violated.

Neither can the testimony be excluded as a fruit of the suppressed statement. Absent a direct infringement on fifth amendment rights, a violation of the rules of Miranda will not support the exclusion of evidence derived from the statement. Rhodes v. State, 91 Nev. 17, 22, 530 P.2d 1199, 1202 (1975); Michigan v. Tucker, 417 U.S. 433, 445-446, 94 S.Ct. 2357, 2364-65, 41 L.Ed.2d 182 (1974). If appellant's statement had been induced by police threats or promises of leniency, the statement would be involuntary and evidence derived from it inadmissible. See Commonwealth v. Meehan, 377 Mass. 552, 387 N.E.2d 527 (1979). However, the trial court determined, after a hearing, that the statement was voluntary, and we will not disturb the court's finding. Sparks v. State, 96 Nev. 26, 604 P.2d 802 (1980). Since the testimony cannot be traced back to either a fourth amendment or a fifth amendment violation, we hold that its admission was proper.

The prosecution's case rested largely on the testimony of Donald Dowell, who shared a cell with the Crew brothers while they were awaiting trial. Dowell was a former police informant who was in jail on charges of homicide. While a cellmate of the Crews, he was approached by Detective Maddock and asked to give a statement about anything he might have learned from conversations with the Crews. Dowell's attorney worked out a plea bargain and Dowell gave a statement. A week before his testimony Dowell pleaded guilty to voluntary manslaughter and was sentenced to three years probation conditioned upon serving one year in the county jail.

On cross-examination of Dowell, defense counsel read from the statement, pointing out discrepancies between it and Dowell's testimony. At the conclusion of Dowell's testimony, defense counsel put Dowell's attorney on the stand to testify regarding Dowell's arrangement with the prosecution. At that time, the trial court granted the prosecution's motion to admit the statement into evidence "for the purpose of there being any inconsistencies that might have been alluded to by counsel." Appellant maintains that the statement constitutes inadmissible hearsay.

To be admissible under NRS 51.035(2)(b), ³ prior consistent statements must have been made at a time when the declarant had no motive to fabricate. Daly v. State, 99 Nev. 564, 665 P.2d 798 (1983); Gibbons v. State, 97 Nev. 299, 629 P.2d 1196 (1981). Since at the time Dowell made his statement his arrangement with the police had yet to be consummated, he clearly had a motive to fabricate. We hold, however, that the statement was properly admitted to rehabilitate Dowell's testimony. Since defense counsel read from the statement to attack Dowell's testimony, the prosecution was entitled to introduce the statement into evidence to clarify the inconsistencies pointed out by counsel. See United States v. Baron, 602 F.2d 1248 (7th Cir.1979); NRS 47.120. ⁴ As in Baron, most of Dowell's testimony was consistent with the statement; the inconsistencies went only to details. Appellant cannot be permitted to use parts of a prior statement to impeach the declarant's testimony and then to withhold that same statement from the jury on grounds of unreliability.

Appellant presents other challenges to the admissibility of Dowell's statement and testimony. He maintains that Dowell was a police informant at the time of his conversations with the Crews and that he had made a secret deal with the prosecution which was not disclosed at trial and which resulted in his early release from jail two weeks after his testimony. See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Franklin v. State, 94 Nev. 220, 577 P.2d 860 (1978). After two hearings to determine Dowell's status, the trial court found that Dowell was not an informant at the time of his conversations with the Crews. An examination of the record supports the trial court's finding. Similarly, we will not disturb the trial court's finding that the complete plea bargain was executed before Dowell testified and that it was fully disclosed at trial.

Appellant also contends that his sixth amendment right of confrontation was infringed when the trial court refused to permit him to inquire into Dowell's arrest history.

A defendant must be able to expose facts from which the jury can draw inferences regarding the reliability of a witness. Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). While the trial court has discretion to limit the scope of cross-examination, that discretion only comes into play if as a matter of right sufficient cross-examination has been permitted to satisfy the sixth amendment. United States v. Lindstrom, 698 F.2d 1154 (11th Cir.1983). The scope of the court's discretion varies according to whether the cross-examination is directed at attacking credibility or exposing bias. A trial court has broad discretion to restrict cross-examination attacking the witness's credibility and may properly restrict inquiry into a witness's prior felony convictions as opposed to mere arrests. The court's discretion is more limited, however, when the purpose...