Farmer v. State

• Decision Date: 12 December 1979
• Docket Number: No. 10607,10607
• Citation: 603 P.2d 700,95 Nev. 849
• Parties: Billy Bob FARMER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 700

603 P.2d 700

95 Nev. 849

Billy Bob FARMER, Appellant, v. The STATE of Nevada, Respondent.

No. 10607.

Supreme Court of Nevada.

Dec. 12, 1979.

Goodman, Oshins, Brown & Singer, Chtd., Las Vegas, for appellant.

Richard Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty. of Clark County, and Melvyn T. Harmon, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

MANOUKIAN, Justice:

Billy Bob Farmer appeals from a conviction by jury for first degree murder, NRS 200.010 and 200.030, which resulted in the imposition of a sentence of life without the possibility of parole, contending that: (1) the jury verdict was coerced; (2) he was deprived of a fair trial by the use of a prosecution witness granted immunity; and (3) the prosecutor's remarks during closing argument constituted prejudicial error. Finding no reversible error, we affirm.

1. The Facts.

There was substantial evidence adduced at trial which showed that one Phillip Wroughton arranged to have appellant murder Ronald Craig Davis, apparently because Wroughton and appellant were suspicious that Davis had been informing the police about Wroughton's and appellant's criminal activities and because Davis was indebted to Wroughton. The state's evidence was presented through a series of witnesses who were either participants or precipitants in a variety of serious criminal offenses including drug trafficking, prostitution, receiving stolen property and, in at least one instance, possibly murder.

Wroughton owned a home in Las Vegas where Farmer and a number of prosecution witnesses lived prior to the instant homicide. Phillip Wroughton was murdered sometime subsequent to Davis' death, and appellant was also charged with that crime.

The record demonstrates that on October 20, 1976, Farmer and a James Logan went to Davis' home purportedly to discuss a cocaine transaction. Farmer and Davis were acquaintances. There was no sign of forcible entry which is an indication that Davis knew his assailants. Appellant was armed with a sawed-off shotgun wrapped in a towel. Earlier that day, a coat which belonged to Farmer was seen in Farmer's residence and a similar jacket was discovered at the murder scene. The next day a state's witness who resided at the Wroughton residence observed Farmer cleaning a shotgun and at trial a police detective testified that he discerned an odor of gun cleaning fluid emanating from the seized gun. A firearms expert testified that the two shotgun blasts that killed Davis probably came from appellant's shotgun. The record is uncontradicted relative to threats made by Wroughton against Davis and admissions by Wroughton that appellant had committed the murder. Several of these threats and admissions make mention of appellant's complicity in the homicide and were made in his presence.

Farmer himself made extra-judicial admissions that he had murdered Davis. Pamela Cathey, a resident in Wroughton's home testified that Farmer had admitted shooting Davis. Phillip Carra also testified that appellant admitted in detail having killed Davis. Carra was a prospective co-defendant with Farmer, incidental to the Wroughton homicide, but was given immunity in exchange for his cooperation in that case.

After approximately five days of trial, the jury received its charge from District Judge Paul Goldman and commenced its deliberations at 11:45 a. m. on Friday, August 26, 1977. The jury continued to deliberate until 11:30 p. m. that evening, immediately after which it was sequestered. Deliberations resumed the following day at 8:15 a. m. Judge Goldman intended to leave Las Vegas on vacation on August 27 and had arranged for District Judge James Brennan to receive the verdict or to take whatever action was dictated by the circumstances.

Due to Judge Goldman's vacation plans, he was not available at the courthouse on Saturday, August 27. He had telephoned the courthouse on two occasions during the morning to inquire as to the jury's progress, and on the second occasion the bailiff asked Judge Goldman what action he should take should the jury indicate that they were not making progress. Judge Goldman instructed the bailiff simply to let the jury continue their deliberations. The bailiff was also instructed by Judge Goldman to contact Judge Brennan should any problem arise.

At approximately 12:00 noon, Judge Goldman called regarding the jury's progress and as a result of the bailiff's inquiry to the jury, it was determined that they were making progress. Then at approximately 1:00 p. m. on Saturday, August 27, the bailiff received a communication from the jury that stated: "Judge Goldman: We the jury feel we are no longer making progress in our deliberations. David A. Osbourne, jury foreman." Several minutes elapsed after which the bailiff opened the door to the jury room and advised them, "The Judge said to continue deliberating." Judge Brennan was immediately notified of this action. There were no other communications with the jury until they returned their verdict at about 5:00 p. m. Saturday.

2. The Verdict's Validity.

Appellant, equating the bailiff's comment to the jury with an Allen charge, contends that in this context, such comment constituted coercion and thus invalidated the guilty verdict. He also alleges that, due to the bailiff's failure to comply with statutes which relate to jury deliberations, we must reverse. We do not agree.

An Allen or "dynamite" charge is an instruction to a deadlocked jury which contains an admonition that the case must at some time be decided or that minority jurors should reconsider their positions in light of the majority view. Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896); Redeford v. State, 93 Nev. 649, 652 n.3, 572 P.2d 219, 220 n.3 (1977). ¹ We have held, in reluctantly approving the Allen charge, that in order for such an instruction to be valid, it must clearly inform the jurors that each member has a duty to adhere to his own honest opinion and the charge must avoid "creating the impression that there is anything improper, questionable or contrary to good conscience for a juror to create a mistrial." Ransey v. State, 95 Nev. 364, ---, 594 P.2d 1157, 1158 (1979); See also Redeford v. State, 93 Nev. 649, 572 P.2d 219 (1977).

A simple request, as here, that the jury continue its deliberations is not inappropriate or coercive and does not amount to a "dynamite" charge. The instruction to the jury here did not suggest explicitly or implicitly that the jury was compelled to reach a verdict and did not render the verdict invalid. State v. Claridy, 29 Or.App. 435, 563 P.2d 1239, 1241 (1977).

Not every communication elsewhere than in open court between jurors and court officials or attendants, after the case has been submitted to the jury for deliberation, is error. An inquiry of the jury by a custodian as to jury progress in reaching a verdict, without more, has generally been considered non-prejudicial. State v. Poffenbarger, 247 Iowa 552, 74 N.W.2d 585, 587 (1956); State v. Franklin, 242 Iowa 726, 46 N.W.2d 710, 716 (1951). We are in agreement with this authority.

Appellant further argues that the bailiff's judicially authorized conduct constituted a Per se violation of NRS 175.451, and was, A fortiori, reversible error. NRS 175.451 provides:

After the jury have retired for deliberation, If there is any disagreement between them as to any part of the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required shall be given in the presence of, or after notice to, the district attorney and the defendant or his counsel.

(Emphasis added.) Here, however, the jurors were not requesting information regarding testimony or any point of law, and the statute relating to communications between the court and the jury has no application.

Appellant next asserts that the trial court did not comply with NRS 175.461. This statute provides that a jury shall not be discharged until they have arrived at a verdict unless "at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." NRS 175.461. Specifically, appellant contends that due to the judge's absence he was unable to determine that the jury could not agree. The evidence is to the contrary.

At the mistrial hearing, the bailiff testified that he conversed with Judge Goldman on the phone approximately one hour before the note was received from the jury. At that time, approximately 12 noon on Saturday, Judge Goldman told the bailiff to ask the jury if they were making progress. The foreman said that they were and Judge Goldman was so informed. The note stated the jury felt it was no longer making progress in its deliberations. The bailiff read the note, left, and after pausing for several minutes, told the jury, "The Judge said to continue deliberating." The jury returned its verdict at 5:00 p. m., with Judge Brennan presiding.

Although Judge Goldman had instructed the bailiff to tell the jury to continue deliberations, the trial judge was not uninformed of the progress of the jury. The bailiff, at the time of his second conversation with Judge Goldman, believed there would be no mistrial declared until at least 5:00 p. m. Judge Brennan, who was then supervising the proceedings, was aware of Judge Goldman's preferences but was left with the discretion to act consistent with or irrespective of them.

The length of time a jury should deliberate is within the sound discretion of the trial court. State v. Addington, 205 Kan. 640, 472 P.2d 225, 235 (1970); NRS 175.461. The time should be determined by the facts and circumstances of the particular case and the reasonable probability that the jury can agree. State v. Crowley, 220 Kan. 532, 552 P.2d 971, 975 (1976); NRS 175.461. See...