Gardner v. State

• Decision Date: 10 July 1975
• Docket Number: No. 7634,7634
• Citation: 91 Nev. 443,537 P.2d 469
• Parties: Gary D. GARDNER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 469

537 P.2d 469

91 Nev. 443

Gary D. GARDNER, Appellant, v. The STATE of Nevada, Respondent.

No. 7634.

Supreme Court of Nevada.

July 10, 1975.

Robert N. Peccole, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, George Holt, Dist. Atty., and Dan M. Seaton, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

MOWBRAY, Justice:

Gary D. Gardner pled guilty to the crime of second-degree murder and received a sentence of 99 years in the Nevada State Prison. The district court denied his post-conviction petition to set aside the guilty plea as involuntary. We affirm.

1. Gardner was arrested on October 9, 1967, for the fatal shooting of Paul DeWeert. He was taken to the North Las Vegas Jail and held there for 5 or 6 days before being transferred to the Clark County Jail.

Gardner's nephews, ages 12 and 13, were also taken into custody by North Las Vegas police on October 9, 1967. The nephews were released on October 11, but later they were again taken into custody and held 3 days before being released on a writ of habeas corpus. Gardner was aware of the police action taken toward his nephews.

An indictment was returned on October 19, 1967, charging Gardner with open murder.

In late October, Gardner agreed, with the approval of his attorney, to take a polygraph examination regarding his involvement in the DeWeert homicide. Arrangements were made by counsel to have Mr. Leonard H. Harrelson, a well known examiner from Illinois, administer the test. Harrelson came to Las Vegas on November 4, 1967, and was prepared to administer the test to Gardner in a local hotel room. Gardner, however, then changed his mind, and he was transported back to the jail. Later in the day, after being visited by his wife and his attorney, Gardner agreed to take the test upon certain conditions. He was then returned to the hotel room. Before Harrelson started the examination, Gardner confessed to the shooting, claiming it was spontaneous and not premeditated. Harrelson did not recite the Miranda warnings prior to interrogation, and Gardner's counsel was not present when he confessed. The room where the examination was to be conducted, however, had been placed under electronic surveillance by the district attorney's office, and the phone was tapped. As a result of Gardner's confession, he agreed to plead guilty to second-degree murder.

Pursuant to negotiations, Gardner was to enter his plea on Monday, November 6, 1967. On Sunday, November 5, Gardner's sister, Luana Jepson, had a chance meeting at a local bar with the deputy district attorney managing the case. The deputy threatened Gardner's sister by saying, 'Well, I will tell you, the son-of-a-bitch better plead guilty tomorrow or I will see him get the death penalty and you and the rest of your family will be prosecuted.' The following day, the day the plea was scheduled, Mrs. Jepson told Gardner of the deputy's statement. At court, Gardner refused to enter a guilty plea and was placed in the holding cell near the courtroom. According to Gardner, the same deputy district attorney then met with Gardner and, though apologizing for his conduct toward his sister, said, 'But if you don't plead guilty, I will guarantee you get gassed and your people, your family, Luana and her kids, will be charged and prosecuted for this crime.' ¹

On November 7, 1967, Gardner entered a plea of guilty to the crime of second-degree murder. At the time the plea was entered, Judge Mendoza questioned Gardner thoroughly and repeatedly before he accepted the plea, and Gardner affirmatively represented to the court that no threats or promises were made and that his plea of guilty was free and voluntary and not the result of any threats or promises made to him or anyone else.

2. Gardner predicates his claim that his plea of guilty to second-degree murder was not voluntary on four different grounds.

He first argues that his plea was coerced because of threats to prosecute his sister and nephews unless he pled guilty. If such threats were in fact made, it does not necessarily follow that the guilty plea was coerced. To be entitled to relief, Gardner must show (1) that the threats were made, (2) that such threats did in fact influence him, and (3) that the influence was such that it amounted to coercion.

In determining whether or not Gardner was in fact coerced, the court may consider all the evidence, including the record taken at the time the defendant entered his plea of guilty.

In State v. Hansen, 79 N.M. 203, 441 P.2d 500, 503 (1968), the defendant claimed that he ". . . was threatened with charges being filed against his wife, if he did not plead guilty to the subject charge (armed robbery), . . ." The Supreme Court of New Mexico held that this did not amount to coercion. The court said (441 P.2d at 503--504):

'The allegations fail, except by suggestion, to assert that the claimed threat influenced his plea. Allegations or statements in a motion merely suggestive of the possibility that a plea of guilty was not voluntarily and knowingly made are not sufficient as a basis for a hearing. Nor are vague or conclusional charges sufficient. Williams v. United States, 367 F.2d 143 (5th Cir. 1966); State v. Lobb, 78 N.M. 735, 437 P.2d 1004 (1968); State v. Williams, 78 N.M. 431, 432 P.2d 396 (1967); State v. Crouch, 77 N.M. 657, 427 P.2d 19 (1967); State v. Guy, 79 N.M. 128, 440 P.2d 803 (Ct.App.1968); State v. Sexton, supra (78 N.M. 694, 437 P.2d 155 (1968)).

'. . . Even if we were to construe defendant's allegations as constituting a threat by someone in authority that charges would be filed against his wife, unless he pleaded guilty, and that he was thereby induced or influenced to so plead, still he would be entitled to no relief.

'Unless he knew his wife had committed some criminal offense, or at least he had substantial reason to believe she might be convicted of such an offense if so charged, he cannot be heard to say he was coerced into pleading guilty for fear she might be charged. If he knew she was guilty of some criminal offense, or had reason to believe she would be convicted of the offense if charged, and, to save her from being charged, he elected to plead guilty, and thus relieve the State of its burden to prove his guilt, he cannot now claim any right to a reversal of his conviction and sentence after having made this choice and after having become unhappy over his sentence or other subsequent developments.'

A threat to prosecute a member of a defendant's family does not constitute coercion per se. The defendant must prove that the threat in fact coerced him into making the plea of guilty. The New Mexico court then said (441 P.2d at 505):

'As stated by the Supreme Court of New Mexico is State v. Daniels, 78 N.M. 768, 438 P.2d 512 (,514) (1968):

"We know of no better way to ascertain if a plea of guilty is voluntary and is understood by a defendant than for the judge to make inquiry of the pleader before accepting the plea. See Cranford v. Rodriguez, 373 F.2d 22 (10th Cir. 1967).' (Emphasis added.)

In the case of State v. Baumgardner, 79 N.M. 341, 443 P.2d 511 (1968), the defendant contended that his plea of guilty was coerced because the prosecution threatened to file charges against the 17-year-old wife of his codefendant. In doing so, the court relied upon the record made at the time the defendant entered his plea and the fact that he was represented by an attorney. The court said (443 P.2d at 512):

'It appears from the record that defendant himself informed the court that he wished to plead guilty to the charge. Before accepting the plea the court inquired of de...