Falcon v. State

Decision Date19 May 1994
Docket NumberNo. 24732,24732
Citation874 P.2d 772,110 Nev. 530
PartiesJulian Richard FALCON, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court
OPINION

PER CURIAM:

This is an appeal from a judgment of conviction, pursuant to a jury verdict of numerous criminal counts. For reasons stated below, we affirm the decision of the district court.

FACTS

On October 21, 1992, at 9:30 p.m., appellant Julian Richard Falcon ("Falcon") burst into the apartment of Chris Nepper. Falcon was carrying a large axe. In the apartment at the time were Nepper, his girlfriend, his three-year-old daughter and his girlfriend's three-year-old daughter. Thus began Falcon's nearly six-hour reign of terror.

Falcon threatened to kill all four individuals if they refused to cooperate. He forced Nepper and the children to one room. He then proceeded, with axe or knife in hand, to force Nepper's girlfriend to inhale cocaine, smoke marijuana, perform numerous acts of oral sex on him and engage in sexual intercourse. He also handed her a knife and told her to kill Nepper. At some point, he forced Nepper to smoke marijuana and locked him in a closet. Falcon finally left sometime after 3 a.m., at which time Nepper called the police.

After leaving the apartment, Falcon went down an alley to his mother's house, leaving footprints in the wet sand. He put the axe in a shed, smoked and ingested more of his drugs, and then went into the house.

The police arrived at the home of Falcon's mother at approximately 7:30 a.m. Falcon's mother informed the officers that Falcon was not there, but permitted them to enter his bedroom. There, the officers found Falcon hiding in a closet. Falcon was arrested and taken to the Mineral County Jail.

At the jail, Falcon's booking officer filled out an arrest and property form. She also filled out a visual observation opinion form in which she stated that she observed that Falcon showed no signs of abnormal behavior or of being under the influence of controlled substances or alcohol.

Later that afternoon, at approximately 2 p.m., Captain Edward Smith read Miranda warnings to Falcon. Captain Smith observed that Falcon appeared normal and sober except that his eyes were somewhat glassy. Captain Smith asked Falcon to spell his name which he did with no incoherence or difficulty. In addition, Captain Smith asked Falcon several other questions and was satisfied that Falcon was able to understand his rights enough to make an intelligent waiver. Falcon testified that he knew he did not have to speak to Captain Smith without his attorney, but that he wanted to, so he signed a card waiving his rights.

Falcon was later bound over and a jury trial was held. Two hours after the jury had retired to deliberate, it was discovered that the alternate juror had entered the jury room with the jury. The alternate juror was removed and the jury continued its deliberations which lasted for approximately nineteen hours before a verdict was reached.

The jury found Falcon guilty of seventeen counts of sexual assault with the use of a deadly weapon, one count of first degree kidnapping with the use of a deadly weapon one count of second degree kidnapping with the use of a deadly weapon, one count of burglary, two counts of dissuading a witness from reporting the crimes, one count of supplying a controlled substance, two counts of use of a controlled substance to aid in the commission of a crime, one count of possession of a controlled substance, and two counts of being under the influence of a controlled substance (methamphetamine and marijuana).

Following the verdicts, Falcon's counsel moved for a mistrial due to the presence of the alternate juror in the jury room for the first two hours of deliberations. Each juror, including the alternate, was then called in by the judge to testify as to the alternate's actions and impact on the final verdict. The alternate testified that he merely sat by a window and did not participate in any deliberations. All the jurors testified that the alternate did not participate in any way and had no impact on their verdict. Following this testimony, the district court denied Falcon's motion for a mistrial, finding that no actual prejudice had resulted from the presence of the alternate during the first two hours of deliberations.

Falcon now appeals, asserting two errors below: 1) the presence of the alternate juror deprived him of his constitutional right to trial by jury; and 2) the waiver of his right to remain silent after receiving Miranda warnings was not voluntary and intelligent because he was under the influence of drugs and alcohol, and therefore any information gained from him during that time was inadmissible.

DISCUSSION

We first address Falcon's claim that the presence of the alternate juror in the jury room during the first two hours of deliberations denied him his right to trial by jury. Though we have not dealt with this precise issue previously, we enunciated a presumption of prejudice standard for juror misconduct in Isbell v. State, 97 Nev. 222, 626 P.2d 1274 (1981). There, we held that any non-juror having private communication with a juror in a criminal case on any subject connected with the trial is presumptively prejudicial. Id. at 226, 626 P.2d at 1276. A hearing before the trial court is the appropriate method for determining whether prejudice existed. Id., 626 P.2d at 1277. The burden is on the respondent to show that the communication was not prejudicial. Id....

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18 cases
  • Harte v. State
    • United States
    • Nevada Supreme Court
    • December 4, 2000
    ...that the defendant knowingly and intelligently waived his Fifth Amendment rights after receiving Miranda warnings. Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994). The validity of the waiver must be determined in each case based on the particular facts and circumstances present......
  • Kaczmarek v. State
    • United States
    • Nevada Supreme Court
    • June 7, 2004
    ...States v. Jardina, 747 F.2d 945, 949 (5th Cir.1984). 35. Davis, 512 U.S. at 459, 461-62, 114 S.Ct. 2350. 36. Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994) (setting forth standard for determining valid waiver of Miranda 37. Cf. Green, 119 Nev. at ___, 80 P.3d at 95. 38. See Ha......
  • Gonzales v. State
    • United States
    • Nevada Court of Appeals
    • July 2, 2015
    ...show that the defendant's incriminatory statements were voluntary under the totality of the circumstances. See Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994). “ ‘A confession is admissible as evidence only if it is made freely, voluntarily, and without compulsion or inducement......
  • Kaczmarek v. State, 120 Nev. Adv. Op. No. 37 (NV 6/7/2004)
    • United States
    • Nevada Supreme Court
    • June 7, 2004
    ...at 595. 34. United States v. Jardina, 747 F.2d 945, 949 (5th Cir. 1984). 35. Davis, 512 U.S. at 459, 461-62. 36. Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994) (setting forth standard for determining valid waiver of Miranda 37. Cf. Green, 119 Nev. at __, 80 P.3d at 95. 38. See......
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