Criswell v. State, 5415

Citation443 P.2d 552,84 Nev. 459
Decision Date15 July 1968
Docket NumberNo. 5415,5415
PartiesElmer Finch CRISWELL, Appellant, v. The STATE of Nevada, Respondent.
CourtSupreme Court of Nevada

Orville R. Wilson, Elko, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Mark C. Scott, Jr., Dist. Atty., Elko, for respondent.



The appellant, Elmer Finch Criswell, was charged with murder, and after a trial the jury found the appellant guilty of second degree murder. The trial court entered its judgment accordingly.

In Elko, Nevada, on July 9, 1966, David Olin Gillaland and George William Comrie were murdered. On July 10, 1966, at 7:15 a.m., the appellant was arrested and booked at the Elko County jail as a material witness in connection with the death of Gillaland and Comrie. Shortly thereafter, appellant spoke to police chief Francis D. Taelour, who accompanied him to the scene of the crime. At approximately 9:00 a.m., his clothes were removed by a police officer and held for examination. At approximately 9:25 a.m., of the same day, the appellant, in the office of the district attorney, was advised of his constitutional right to remain silent, that anything that he might say could be used against him in court, that he had the right to counsel, and if he was indigent and could not afford counsel that the counsel would be provided. Immediately thereafter the appellant made an exculpatory statement blaming his companion, Leonard Logan, for killing both men.

On July 15, 1966, the appellant was present at a preliminary hearing in Elko Township Justice Court and testified at length as a witness in the case of State of Nevada vs. Leonard Logan. Thereafter, Logan was bound over to district court and subsequently pled guilty to the second degree murder of Gillaland.

On July 28, 1966, the appellant consented to go to Reno to take a polygraph test. He was accompanied by Hubert Borjas, the undersheriff of Elko County, and was introduced to William Broadhead, an officer of the Reno Police Department, who advised the appellant that he was entitled to have an attorney present, that he didn't have to talk, but anything he might say could be used against him in court, and if he couldn't afford an attorney one would be appointed for him. At that time the appellant stated that he understood his rights and that he had been advised of them before.

In his conversation with William Broadhead, the appellant confessed that he murdered Comrie by striking him about the head and upper torso with a blunt instrument.

On July 29, 1966, the appellant, as an indigent, executed a verified petition requesting the appointment of an attorney to aid in his defense, and on that same day the district court appointed counsel.

The appellant was sent to the Nevada State Hospital at Sparks, Nevada on October 26, 1966, and on February 22, 1967, he was returned to Elko County where he was arraigned on the charge of murder, to which he pled 'not guilty.'

After a trial, the jury, on April 1, 1967, returned a verdict of guilty of second degree murder, and on May 1, 1967, after a motion for a new trial was denied, the trial court entered a judgment sentencing the appellant to the Nevada State Prison for a term of not less than ten years and up to and including life. This appeal is taken from that judgment.

As his assignments of error, the appellant contends:

(1) That the trial court violated the appellant's constitutional rights by admitting into evidence the appellant's confession of July 28, 1966, because the warnings required in the case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.ct. 1602, 16 L.Ed.2d (1966) were not timely and adequately given.

(2) That substantial evidence indicated the appellant to be insane, and the trial court erred in accepting a jury verdict finding the appellant guilty of second degree murder.

(3) That the trial court failed to rule on the appellant's capacity to waive his constitutional rights.

(4) That the trial court failed to rule on the voluntariness and competence of the appellant's confession given July 28, 1966.

One of the appellant's attacks, upon the validity of his confession of July 28, 1966, is that the Miranda warnings were not timely and properly given to him on July 10, 1966. We do not agree with this contention.

While the record is silent as to whether or not the appellant was given the Miranda warnings prior to 9:25 a.m., July 10, 1966, it does, however, indicate that there was no meaningful interrogation directed towards the appellant before that time, and although some questions may have been asked of the appellant at the scene of the crime, he was then being detained only as a material witness. On July 10, 1966, the appellant was not in the accusatory spotlight and the record is silent as to what the appellant said, if anything, from the moment of his apprehension until 9:25 a.m., July 10, 1966. Nothing said or done by the appellant prior to the time he received the Miranda warnings was used at the trial, nor is it alleged to have lead to the discovery of any other evidence. If the Miranda warnings were not given to the appellant before 9:25 a.m., July 10, 1966, any resulting error was harmless even under the rigid standards of harmless error as enunciated in Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), and as clarified in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Guyette v. State, 84 Nev. ---, 438 P.2d 244 (1968).

We find that the warnings given the appellant at 9:25 a.m., July 10, 1966, in the office of the district attorney, and also the warnings given the appellant on July 28, 1966, by William Broadhead, met the requirements of Miranda v. State of Arizona, supra. While the warnings given in the district attorney's office did not specifically advise the appellant that he was entitled to have an attorney present at that moment and during all stages of interrogation, no other reasonable inference could be drawn from the warnings as given.

In Tucker v. United States, 375 F.2d 363 (8 Cir. 1967), it is said: '* * * the Supreme Court did not prescribe an exact format or postulate the precise language that must be used in advising a suspect of his constitutional right to remain silent. * * * In resolving the question in light of the Miranda standards, the substance and not the form of the warnings should be of primary importance.'

This court on many occasions in the past has applied the McNaghten test of insanity and we again subscribe to the doctrine orginally announced in State v. Lewis, 20 Nev. 333, 22 P. 241 (1889), when the court said: (1) 'The accused is presumed to be sane until the contrary is shown.' (2) 'Insanity is an affirmative proposition, and the burden of proving it is upon the defense.' (3) 'Insanity, as a defense to crime, must be established by a preponderance of the evidence.' (4) 'If the defendant have capacity and reason sufficient to enable him to distinguish right from wrong as to the particular act in question, and has knowledge and consciousness that the act he is doing is wrong and will deserve punishment, he is, in the eye of the law, of sound mind and memory, and should be held responsible for his acts.' This standard has been followed in State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L.R.A. 33 (1895); Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957); Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964), and Bean v. State, 81 Nev. 25, 398 P.2d 25s (1965).

In the case of State v. Hartley, supra, this court said: 'It is not sufficient that insanity may exist in the realm of imagination. The rules governing in cases where the defense of insanity is interposed are well established * * * It requires pertinent, competent, and satisfactory evidence to establish insanity as in any other alleged fact in the case.'

The appellant's father, Mack Criswell, who was called as a witness on the question of the appellant's sanity, was allowed considerable latitude in his testimony about the conduct of the appellant. He told a number of rambling stories of the peculiar behavior of his son, including one story of rather recent vintage, when the appellant, who was then employed as a bus driver, left his passenger filled bus in the middle of the road, in a remote area, with advice to the passengers that they could do what they pleased about getting to their destination. The elder Criswell emphatically stated that he believed his son was insane at the time he killed Comrie, as well as before and since that unfortunate event.

To rebut the allegation of insanity and the appellant's contention that he did not know right from wrong on July 9, 1966, the state called Edward F. Lunford, Justice of the Peace of Elko Township, and recalled William Broadhead and Hubert Borjas. All three related their factual observations of the appellant and testified that he appeared to be sane.

During the trial, a clinical psychologist and two psychiatrists testified that they had examined the appellant after October 26, 1966, and before the trial, and found him to be a paranoid schizophrenic, of considerable duration, or as otherwise stated, suffering from schizophrenic reaction, paranoid type of long standing, but the two psychiatrists admitted that they could not say with any absolute degree of certainty whether or not the appellant knew right from wrong on July 9, 1966, when the murders were committed, nor did they catagorically state that the appellant was unable to knowingly and intelligently waive his right to counsel, and his right to remain silent on July 28, 1966, when he made his confession to William Broadhead.

The clinical psychologist stated that in his opinion the appellant did not know right from wrong at the time Comrie was murdered, but on cross examination when asked by the district attorney, 'Are there also times then, Doctor, that he would be able to distinguish...

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    ...instruction that if the suspect desired an attorney the interrogation would cease until an attorney was present"); Criswell v. State, 84 Nev. 459, 443 P.2d 552, 554 (1968) ("While the [advice that the defendant had a right to counsel] did not specifically advise the [defendant] that he was ......
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