Geary v. State

• Decision Date: 19 December 1975
• Docket Number: No. 7775,7775
• Citation: 91 Nev. 784,544 P.2d 417
• Parties: Melvin Joseph GEARY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 417

544 P.2d 417

91 Nev. 784

Melvin Joseph GEARY, Appellant, v. The STATE of Nevada, Respondent.

No. 7775.

Supreme Court of Nevada.

Dec. 19, 1975.

Morgan D. Harris, Public Defender, and Michael A. Cherry, Deputy Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., and Dan M. Seaton and Frank Cremen, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

BATJER, Justice:

A jury found the appellant guilty of murder in the first degree and fixed his penalty at life in prison without the possibility of parole. In this appeal he contends that the trial court erred by (1) admitting evidence of another offense then refusing to grant a mistrial; (2) failing to suppress evidence obtained in the course of an unlawful search and seizure; (3) admitting his involuntary confession; (4) failing to properly instruct the jury on his state of mind; and (5) admitting into evidence a vial of the victim's blood when the chain of evidence was defective.

Midafternoon, February 27, 1973, law enforcement officers in Las Vegas, Nevada, received information appellant had been involved in a robbery and shooting and began searching for him. Their search ended several hours later when they found his name on an apartment mailbox and knocked on the apartment door which he answered.

Upon ascertaining his identity, police officers Emmett Davis and Dale Davis stepped into the apartment, made a pat down search of appellant, and then pushed him outside into the custody of a fellow officer. At that moment the officers, from their position at the door of appellant's apartment, observed an overturned lamp and large reddish-brown spot appearing to be blood on the carpet and which was partly covered by a throw rug. Upon this observation the officers went through the apartment where they found more blood, bloody clothing and bedding. Shortly thereafter they called for assistance from skilled investigators who made a more thorough search of the premises and gathered articles of evidence including a knife from the kitchen counter.

Later that day appellant was given the 'Miranda' ¹ warnings by two detectives, and he signed a 'rights of persons arrested card' before they questioned him about the large amount of blood found in his apartment. During the interrogation appellant told the two detectives he had at one time been hit by a truck and had blackouts and needed help. They suggested that he would be entitled to have an attorney appointed to represent him and that an application could be made for assistance for mental problems. On February 28, 1973, appellant, after again being advised of his constitutional rights, waiving those rights orally, and signing another 'rights of persons arrested card,' confessed to the killing of Annette Morris, whose body containing multiple throat and chest wounds had been discovered February 26, 1973, Beneath a pile of trash and rubbish in the desert. The confession was videotaped and later played for the jury during the trial.

1. At the trial, officer Dale Davis testified that on February 27, 1973, at about 7:45 p.m., he arrested appellant on 'another incident.' Appellant's counsel immediately interrupted the testimony and moved for a mistrial. After a hearing outside the presence of the jury, appellant's motion was denied. The trial judge later offered to admonish the jury and give a limiting instruction, and respondent requested an admonishment, but counsel for appellant indicated that he felt an admonishment would be more prejudicial to his client than the officer's remark and opposed the request. In light of the record we reject appellant's contention on appeal that the trial judge was required to sua sponte give the admonishment.

Appellant's claim that evidence of criminal activity unrelated to the offense charged was erroneously admitted is answered in Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971). Founts was indicted for a robbery committed in September of 1969. The victim testified before the grand jury that Founts had also robbed him in April of 1969. At trial, the prosecuting attorney referred to the April meeting between Founts and the victim as an 'unfortunate confrontation' and characterized the circumstances as 'highly unusual.' No reference was made to the details of the meeting. On appeal Founts contended that the trial court erred in allowing into evidence the testimony regarding the April offense. In affirming the conviction, we said: 'Though the prosecution repeatedly referred to the 'unusual' or 'unfortunate' nature of the April meeting, nowhere in the course of the examination of Mr. Keough (victim) did it elicit a description of the offense which occurred. Therefore, no damaging previous-offense testimony was introduced and the rule proscribing the introduction of such testimony was not violated.' 87 Nev. at 168, 483 P.2d at 656. All the cases relied upon by appellant are distinguishable on their facts. Here, as in Founts, 'no damaging previous-offense testimony was introduced,' and the rule proscribing proof of a distinct independent offense at the trial of a person accused of a crime was not violated. Cf. Martin v. State, 80 Nev. 307, 393 P.2d 141 (1964).

2. The trial court did not commit error in refusing to suppress the physical evidence discovered during the warrantless search of appellant's apartment and his confession given during a police inquiry.

The Fourth Amendment to the United States Constitution guarantees the individual's 'privacy against arbitrary intrusion by the police.' Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949); see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Subject to a few specifically established and well-delineated exceptions warrantless police invasions of personal privacy 'are per se unreasonable under the Fourth Amendment.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One of the recognized exceptions to the search warrant requirement of the Fourth Amendment is the 'emergency doctrine.' State v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974).

Here the police officers making a valid arrest in connection with an unrelated matter and being lawfully on the premises observed in 'plain view' ² what they recognized to be a large spot of blood on the apartment floor. The appellant was not bleeding. A wounded person in need of assistance might well have been on the premises. At that moment an emergency situation arose which made an immediate search of the apartment imperative. Not only did the officers have a right to immediately search, but more importantly, a duty and an obligation. ³ State v. Hardin, supra. The state had the burden of proving that a warrantless search and seizure was proper. State v. Hardin, supra. That burden has been adequately met.

When an exigency gives rise to a search it may be carried through to its completion in whatever area law enforcement officers may reasonably expect to find the object of their search.

Having had his interest of privacy in the apartment validly invaded and being in custody elsewhere, appellant cannot recapture that interest by a temporary break in the search between the time the police officers made the initial search and the investigators gathered the articles of evidence. ⁴ Wimberly v. Superior Court County of San Bernardino, 45 Cal.App.3d 486, 119 Cal.Rptr. 514 (1975); Bailey v. State, 16 Md.App. 83, 294 A.2d 123 (1972).

Upon the ground that it was not properly connected to him appellant contends that the knife seized from the counter in his kitchen was improperly admitted into evidence. ⁵ Items offered in evidence have relevancy and materiality if they are connected with the perpetrator, the victim or the crime. State v. Iddings, 5 Wash.App. 99, 485 P.2d 631 (1971); Lofton v. People, 168 Colo. 131, 450 P.2d 638 (1969); State v. Mays, 7 Ariz.App. 90, 436 P.2d 482 (1968).

In Alsup v. State, 87 Nev. 500, 501--502, 489 P.2d 679, 680 (1971), we said: 'When the evidence on the part of the prosecution is circumstantial an implement by menas of which it is likely that a crime was committed is admissible in evidence if it has been connected with the defendant.'

Here a pathologist testified to the numerous wounds suffered by the victim and indicated that the subject knife was the type of weapon that could have inflicted those wounds. Appellant, in his videotaped confession, admitted stabbing the victim with a boning knife, and a criminalist testified that blood was found on the knife.

Connected to the appellant, the victim and the crime, the knife was properly admitted into evidence by the trial court.

3. Relying on the contention that the detectives promised him psychological help in exchange for his confession to murder, appellant argues that his confession was not freely and voluntarily given. The record does not support his contention but does indicate that appellant had been injured some years before in a traffic accident and, by his own testimony, suffered 'blackouts.'

If a defendant is mentally capable of understanding the meaning and consequences of his confession, his mentally disturbed condition does not preclude its admission. Criswell v. State, 86 Nev. 573, 472 P.2d 342 (1970), cert. denied, 400 U.S. 946, 91 S.Ct. 251,27 L.Ed.2d 251 (1970). This record reveals no adverse mental or physical condition on the part of the appellant which would impair his understanding of the meaning and consequence of his confession, nor any oppressive or coercive act or pressure on the part of the law enforcement officers which would render the confession inadmissible.

4. Appellant next contends there was a possibility that he might have been found guilty in a lesser degree if his proposed instruction on the 'state-of-mind' issue had been given in conjunction with Instruction No. 22 ⁶ which was given, and as a result the trial court erred in its refusal. We...