Goldsmith v. Sheriff of Lyon County

• Decision Date: 02 May 1969
• Docket Number: No. 5703,5703
• Citation: 454 P.2d 86,85 Nev. 295
• Parties: David Martin GOLDSMITH, Appellant, v. SHERIFF OF LYON COUNTY, Nevada, Respondent.
• Court: Nevada Supreme Court

Page 86

454 P.2d 86

85 Nev. 295

David Martin GOLDSMITH, Appellant, v. SHERIFF OF LYON COUNTY, Nevada, Respondent.

No. 5703.

Supreme Court of Nevada.

May 2, 1969.

Goldwater, Taber, Hill & Mortimer, and Robert E. Rose, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, John E. Stone, Dist. Atty., Yerington, for respondent.

BATJER, Justice:

This is an appeal by the petitioner, David Goldsmith, from an order of the district court denying his application for a writ of habeas corpus. The following facts are pertinent on this appeal:

On January 17, 1968, a criminal complaint was filed charging Goldsmith with the murders of Robert Stucker and Larry Olinger. Shortly thereafter he was arrested in the state of Wyoming and subsequently extradited to the state of Nevada. On May 16 and 17, 1968, a preliminary examination was held to determine whether the crime of murder had been committed against Robert Stucker and Larry Olinger, and whether there was sufficient cause to believe that Goldsmith was guilty thereof.

There was well documented evidence in the record that Robert Stucker and Larry Olinger were murdered. The appellant does not here controvert that evidence.

Some of the evidence presented at that hearing which implicated Goldsmith with the murders was the testimony of Gernot Mattheis and Bonny LeMire concerning what they were told by Glenn Lucas and Ted Linn. Along with Goldsmith, Robert Lindblad, Glenn Lucas and Ted Linn are also charged with the murders. The appellant objected to the testimony of Mattheis and LeMire, and his objections were overruled by the magistrate.

Mattheis testified that on or about August 22, 1967, the following statement was made to him by Linn:

'And he said, 'Well, we had to kill a couple of guys and bullets were flying around the car and one creased Glenn Lucas in the back of his head and another one almost hit me and went in the dashboard of the car right next to the radio.''

Mattheis further testified that Linn told him that the two men they had killed were Larry Olinger and Robert Stucker:

'And he said, 'Well Dave Goldsmith asked me to find somebody to have them killed. And I found Lindblad and Lucas to do it. But,' he said, 'the whole deal was a failure from the beginning.''

On September 10, 1967, Mattheis was in a plane traveling from Salt Lake City Utah, to Jackson Hole, Wyoming, with Lucas and Linn when Lucas told him that 'I done a job for him (David Goldsmith) and he never paid me for it and I am going to go up there and kill him.'

Later that same day Linn, Lucas and Mattheis attended a cocktail party in Jackson Hole, Wyoming, at the house owned by one Jan Carr. At this party Lucas related to Mattheis how Linn, Lindblad and he had killed Larry Olinger and Robert Stucker. Mattheis further testified:

'* * * Later, when we got back from the party, we stopped back at Mr. Linn's house and we had something to eat, and Mr. Lucas said, 'That Dave, he was standing right there by the fireplace when we made that deal and,' he said, 'he hasn't come up with any money yet and I am going to kill him.''

Linn told Mattheis of a conversation he had with Glenn Lucas on or about December 20, 1967. Mattheis testified:

'Well, Mr. Lucas had just called up and said he was tired of pussyfooting around with Dave Goldsmith and Ted Linn. He said he thinks they are splitting up the money between themselves and he is not getting any of it and he is going to come up and kill Dave Goldsmith, and Ted Linn too if he had to.'

Linn also stated to Mattheis that Goldsmith was to get this money from an insurance policy.

LeMire testified that she had two conversations with Linn. During the first conversation she stated:

'* * * He told me that he was expecting some money from David Goldsmith.'

She further testified that with reference to Glenn Lucas:

'* * * He said that Glenn would get part of this money when he received it.'

She said that during her second conversation with Linn that:

'Ted told me that Glenn threatened to kill Dave if he didn't pay off. And he said he was very worried about it.'

H. L. Jensen, manager of the R. J. Bar in Jackson, Wyoming, testified that Goldsmith and the other co-defendants, as well as the victims all patronized his bar in the summer of 1967, and that Linn and Goldsmith met there in the fall of 1967. He specifically testified that at one time in the month of July 1967, Lucas, Linn and Goldsmith were all in his place of business at the same time, although Lucas was not seated with the other two.

Floyd R. King, an attorney at law from the state of Wyoming, testified that he was the president of a corporation known as Alpine Investments, Inc., and that David Goldsmith and his wife, as joint tenants, owned 2000 shares of stock; Robert Stucker and his wife, as joint tenants, owned 2000 shares of stock; and Larry Olinger and his wife, as joint tenants, owned 2000 shares of the stock. The appellant objected when King started to testify about the insurance policies on the deceased shareholders. The objection was overruled and the witness stated that the corporation had collected $93,074.50 in insurance on the life of Robert Stucker and $98,968.39 on the life of Larry Olinger. He further testified that the financial condition of the corporation had greatly improved after receipt of the insurance, and that they were able to make distribution of $15,000 to Bette Stucker, $5,000 to Mary Ann Olinger and $1,500 to David Goldsmith.

Raymond E. Roberts, of Carson City, Nevada, a special investigator from the office of the Attorney General of the state of Nevada, testified that on November 3, 1967, in his presence and in the presence of Goldsmith and Sheriff George Allen, a Lieutenant Langford of the Wyoming highway patrol said: 'Well, Dave, you told me that you would get all the money' to which Goldsmith replied: 'Well, at that time I understood I was, but it goes into the corporation, I understand now.'

Over the objection of Goldsmith, Fay Stucker, the father of Robert Stucker, deceased, was allowed to testify to conversations he had on or about September 8th or 9th, 1967, with Goldsmith, when the appellant asked the witness to phone Bette Stucker and advise her that he was coming out (from Moline, Illinois) and for them not to be angry at him or in any way perturbed or question any of his actions or his conversation of any type, and he further requested that she call his (Goldsmith's) wife and that the witness make the call after Goldsmith boarded the plane.

Fay Stucker further testified that he saw Goldsmith on November 5, 1967, the day before Robert Stucker's funeral. On November 5, 1967, he met Goldsmith and Jim Mercill at the funeral parlor and that they were each carrying a gun in their waistbands. When he asked Goldsmith the reason, Mercill, in the presence of Goldsmith, stated that Goldsmith's life was in danger and that he, Mercill, was going to stand by up around the door because they were expecting trouble. The witness further testified that later that evening he observed Goldsmith apparently weeping and mumbling. 'I'll kill them, I'll kill them, I'll kill them.' When the witness asked, 'Who are you going to kill?' Goldsmith mentioned the name of Linn.

After the funeral the witness had another meeting with Goldsmith. Bette Stucker and Jim Mercill were also present. At that time the witness again discussed the guns and again Goldsmith expressed fear for his life, and the witness said, 'Well, Dave, who are you particularly--who do you think is going to come out here and get you? This is--the authorities haven't been notified. Carrying guns in the State of Illinois is definitely against the law.' To the question, Goldsmith mentioned the names of Linn and Bailey or Lucas and Bailey. The witness also asked Goldsmith about the $600 he had sent to Linn and why it hadn't been mentioned before. To that question Goldsmith responded: 'Well, because I didn't want you to get mad at me.'

On August 26, 1967, Linn contacted Bette Stucker at her trailer and asked for Goldsmith's phone number in Moline, Illinois, and in her presence he made the phone call and advised Goldsmith that he was calling from her trailer and asked for $1000. When Goldsmith arrived in Jackson, Wyoming, on September 11, 1967, he contacted Bette Stucker and told her he wanted to get 'close' to Linn because he thought Linn could tell them something about Bob (Stucker) and Larry (Olinger). Shortly thereafter Goldsmith called Linn from her trailer and agreed to meet him at the R. J. Bar.

On or about October 10, 1967, Goldsmith brought a girl by the name of Lori Lynn from Moline, Illinois, introduced her to Bette Stucker and told Bette in Lori's presence that he would give Lori $5,000 to get close to Ted (Linn) and get any information she could concerning Bob (Stucker) and Larry (Olinger) as to where they were or what Ted knew.

A few days later Goldsmith picked up Bette Stucker and they went to the Wort Hotel in Jackson, Wyoming, and shortly after they arrived Linn and Lucas walked in and walked over to their table. Linn wrote out a check for Goldsmith and delivered it to him, then they sat down at the next table. Goldsmith introduced Lucas to Bette Stucker as 'Danny.' That night she talked to Goldsmith and he told her he had gone to Linn's house with Linn and Lucas. When she asked why Lucas was introduced as 'Danny', Goldsmith said, 'Well, he didn't want you to know he was--or, didn't want anybody in town to know it was him.' At that time Goldsmith also told her that Linn and Lucas wanted a meeting with both of them and Tom Williamson to clear up rumors about the disappearance of Bob (Stucker) and Larry (Olinger) and that Lucas was denying any connection with it. Bette Stucker met with Lucas, Linn and Goldsmith at the Wort Hotel. Williamson didn't show up so the meeting broke up before anything of significance was said.

On November 26th or 27th, 1967, Goldsmith again contacted Bette...