Gallego v. State
| Decision Date | 20 December 1985 |
| Docket Number | No. 15932,15932 |
| Citation | 101 Nev. 782,711 P.2d 856 |
| Parties | Gerald Armond GALLEGO, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Robert Bork, State Public Defender, FitzSimmons, Lambrose & Perkins, Carson City, for appellant.
Brian McKay, Atty. Gen., Carson City, and Richard A. Wagner, Dist. Atty., Lovelock, for respondent.
Two young women, Stacey Redican and Karen Twiggs, disappeared from a shopping mall in Sacramento, California, on April 24, 1980. Their brutalized bodies were discovered on July 27, 1980 in shallow graves in remote Limerick Canyon, Nevada. The hands of both girls were trussed with an uncommon variety of macrame rope. An autopsy revealed that both victims suffered violent deaths caused by multiple blows to the head with a hammer or hammer-like object.
According to the State's primary witness, Charlene Williams (aka Charlene Gallego), defendant had her entice the two victims into a van where they were forcibly confined, sexually molested by Gallego and ultimately transported to the place of their destruction. The gravamen of Charlene's testimony was that Gallego again transmogrified his "sex slave" fantasy into an intense, morbid reality. During the course of trial, evidence was adduced concerning similar conduct by Gallego in the earlier killing of two young women kidnapped from another shopping mall in the Sacramento area. The latter victims were felled by a number of bullets to the head, whereas Stacey and Karen had been viciously bludgeoned to death by a hammer that Gallego had purchased enroute to the fatal destination in Limerick Canyon.
The jury found Gallego guilty of two counts of murder in the first degree and two counts of kidnapping in the first degree with substantial bodily harm. Gallego was sentenced to death for Stacey and Karen's murder and received two consecutive sentences of life without the possibility of parole for the kidnapping counts. Having determined that no prejudicial error occurred in Gallego's trial, we affirm the convictions and sentences without exception.
Gallego raises twenty-one issues on appeal, a number of which we need not consider. Suffice it to say that the trial as a whole produced fairness to the defendant both in the guilt and penalty phases.
An accused is entitled to be fairly tried based upon evidence adduced at trial, and that right remains inviolate in the face of apparent guilt, the most heinous criminal charges and a less than inspiring station in life. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Gallego contends that his due process right to fundamental fairness was emasculated beyond redemption by the inflammatory nature of the pretrial news coverage and the rural setting of the trial in Pershing County. Unquestionably, the combination of inflammatory pretrial publicity and a sparse population could produce an ambiance so fraught with prejudice that a fair trial would be unattainable. However, viewed within the context of the instant case, we have concluded that the confluence of the aforementioned concerns did not deprive Gallego of a fair trial.
It is true, as appellant emphasizes, that the local weekly newspaper of general circulation, the Lovelock Review-Miner, published a number of derisive articles about Gallego. 1 The Nevada news media throughout the State provided extensive pre-trial coverage of the Gallego prosecution, including its sensational aspects. It may thus be fairly assumed that no geographical area within the State of Nevada having facilities available to accommodate defendant's trial would have been insulated from pre-trial publicity. It is equally clear that a change of venue would have intensified the media coverage accessible to residents of the area of the new trial site. Of paramount concern, then, is whether, in spite of the coverage, Gallego was accorded his constitutional right to a fair trial by a panel of qualified, impartial jurors.
Given the realities of our age, it is unlikely that a high-profile criminal defendant will be presented with a venire of uninformed individuals from which to select a jury. Indeed, it is conceded by many jurists that such a panel would least likely provide the considered, enlightened judgment that can best serve the demands of trial. As a result, courts abide by the following standards:
To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), quoting Irvin v. Dowd, supra, 366 U.S. at 723, 81 S.Ct. at 1642. See also Kaplan v. State, 96 Nev. 798, 618 P.2d 354 (1980). In analyzing the constitutional adequacy of Gallego's jury, it should be noted that not all of the circumstances contributing to the pre-trial atmosphere were adverse to Gallego. Importantly, the victims were not local girls. Moreover, it was evident that many residents of Pershing County were opposed to the trial situs because of the expense to the County. Finally, there were no publications of admissions or confessions attributable to Gallego.
Seven of the jurors were passed for cause by defendant. None of the jurors were shown to have formed the opinion that Gallego was guilty of the crimes with which he had been charged. All of the jurors selected indicated they could follow the law, and, if appropriate, return a sentence other than death if they found Gallego guilty. Gallego nevertheless contends that expressions of impartiality and commitment to decide the guilt or innocence of the defendant solely on the trial evidence were the conditioned responses to the admonitions of the trial judge. We do not agree. Although it is impossible to divine the true mind-set of any prospective juror, we are convinced from the record that the process of jury selection in the instant case yielded a jury panel committed to constitutional behavior. 2 The trial court did not err in rejecting Gallego's motion for a change of venue.
In reviewing the record, we are likewise convinced that defendant's subsidiary contentions concerning the trial court's rulings in: (1) defendant's challenges for cause; (2) refusing to grant defendant peremptory challenges in excess of the number provided by statute; (3) refusing to exclude the press and public from the voir dire of the venire; and (4) denying defendant's motion to sequester the jury during trial are all without merit. We likewise conclude that the trial judge did not commit error in addressing the venire concerning the duties of a juror.
Gallego contends that the lower court erred in permitting Charlene Williams, aka Charlene Gallego, to testify as an accomplice to Gallego's crimes. Prior to Gallego's trial, Charlene had entered a guilty plea to two counts of second degree murder in the deaths of Karen and Stacey and had been sentenced in connection therewith. Charlene testified at trial that she had directly participated in the kidnapping and asportation of the two victims, knowing they would be killed. Under Nevada law, NRS 175.291, 3 the evidence against Gallego must be analyzed independent of Charlene's testimony in order to ascertain whether sufficient evidence otherwise exists tending to connect Gallego to the commission of the crimes. Defendant argues that no evidence independent of the accomplice testimony exists to link him to the two offenses charged. We disagree.
During the course of the trial, the State produced corroborative evidence that, in cumulative effect, sufficiently connected Gallego to the two murders. An uncommon variety of macrame rope was found in the trunk of Gallego's Triumph 1500 automobile that matched in all respects the rope that bound the two victims. The State also introduced a photograph taken of Gallego and certain friends several years before the killings at the identical site where the victims were found. The burial place for the two young women was a remote site in a vast desert area, a spot shown to be familiar to Gallego. Additionally, the State proved that the defendant was in Nevada at Lake Tahoe one day following the disappearance of the victims. Finally, evidence of the murders of Kippie Vaught and Rhonda Scheffler showed a common scheme or plan consistent with the kidnappings, sexual molestation and eventual killings in the instant case. The cumulative impact of the aforementioned corroborative evidence was sufficient to tie Gallego to the commission of the homicides without resort to Charlene's testimony. Accordingly, the trial court did not err in its ruling on this issue.
Gallego nevertheless contends that Charlene should not have been allowed to testify in any event because of the spousal privilege. This issue is also without merit. Unlike California, where the spousal privilege belongs to and may be waived by the witness, People v. Lankford, 55 Cal.App.3d 203, 127 Cal.Rptr. 408 (1976), the Nevada evidence code precludes a wife from testifying for or against her husband without his consent. NRS 49.295(1)(a). Therefore, if Charlene and Gallego were lawfully married, her testimony against Gallego would have violated the spousal privilege.
The validity of the marriage Gallego seeks to invoke depends upon the effect of a California nunc pro tunc order entered approximately eighteen years after a 1964 Nevada marriage that was void ab initio under the laws of this State. Gallego contends that the aforesaid order reinstates a 1966 marriage which was otherwise void under Nevada law because the "marriage" was performed in Nevada at a time when only an interlocutory...
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