Hollander v. State

• Decision Date: 05 October 1966
• Docket Number: No. 5068,5068
• Parties: Herman HOLLANDER, Appellant, v. The STATE of Nevada, Respondent
• Court: Nevada Supreme Court

Page 802

418 P.2d 802

82 Nev. 345

Herman HOLLANDER, Appellant, v. The STATE of Nevada, Respondent

No. 5068.

Supreme Court of Nevada.

Oct. 5, 1966.

Casey W. Vlautin, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., and Robert Gaynor Berry, Deputy Dist. Atty., Washoe Couny, Reno, for respondent.

OPINION

ZENOFF, District Judge.

Herman Hollander was arrested and charged on two counts, of ex-felon in possession of a firearm, and violation of Nevada's Habitual Criminal Act, NRS 207.010, for having been convicted of three prior felonies. ¹ He was tried before a jury on the first count and found guilty. On the second count he was adjudged guilty and sentenced to life imprisonment. He appeals the conviction alleging five grounds of error: (1) insufficiency of proof of past convictions, both as to the ex-felon charge and that of being an habitual criminal, (2) that he was illegally arrested and therefore the evidence seized at the time of the arrest was wrongfully used against him, (3) refusal of the trial court to grant his request for different counsel than that originally appointed, (4) refusal of the trial court to grant defendant's request for a psychiatric examination, and (5) the granting of the order amending the information charging him with past crimes.

1. Appellant's principal assignment of error is directed to the degree of proof required to establish defendant's identity with prior offenses. Both the primary charge of ex-felon in possession of a firearm and the additional charge that he violated Nevada's Habitual Criminal Act involve proof of earlier convictions.

The foundation offense to the ex-felon charge was supplied by the introduction into evidence of an exemplified copy of a 1954 Nevada conviction.

Our concern, of course, is that an innocent person not be made to suffer for the guilt of another with a similar name. Ordinarily, positive identity is accomplished by the presentation of photographs, fingerprints, and any other available identity data. Circumstances in addition to the copy of the conviction should be considered. Such circumstances include uncommon surnames, identity of first names and surnames, as well as the other factors of fingerprints or photogrphs.

Here, the past conviction together with Hollander's unusual last name, identical first name, and the added weight given a conviction record of the state in which the ex-felon accusation is tried, are considered by us sufficient to justify the jury's conviction.

Referring now to the hearing before the court on the habitual count, the same applications can be made. The State introduced exemplified copies of felony convictions purporting to be those of Hollander. Five past felonies were charged of which two were admitted by him and three denied. The State contends that the record of the three prior convictions alone should be sufficient under our statute to convict the appellant of being an habitual criminal. ²

Some courts hold that proof of a record merely containing defendant's name is not enough to overcome the presumption of innocence. People v. Casey, 399 Ill. 374, 77 N.E.2d 812, 11 A.L.R.2d 865 (1948). Others are satisfied that the earlier records sufficiently establish identity under the habitual criminal acts, that a properly authenticated conviction presumes identity of person as well as name. State v. Davis, 367 S.W.2d 517 (Mo.1963); Buie v. State of Oklahoma, 368 P.2d 663 (Okl.Cr.App.1962).

The division of authorities preponderates in favor of allowing the copies to suffice if, as in the primary charge (that of being an ex-felon in possession of a firearm), further circumstances exist pointing to the defendant's identity of person and name. Here the circumstances that existed in the determination of guilt in the first charge were augmented by Hollander's admission to two of the convictions. Sometimes such admissions alone are sufficient to convict. State v. Wyckoff, 27 N.J.Super. 322, 99 A.2d 365 (1953); State ex rel. Medicine Horn v. Jameson, 78 S.D. 282, 100 N.W.2d 829 (1960). We also note 39 Iowa L.Rev. 156 (1953--54). However, we reject that authority which considers the defendant's failure to rebut the presumption created. The responsibility of proof beyond a reasonable doubt remains with the State.

2. The appellant also raises the issue that he was unlawfully arrested. The circumstances of the arrest were that officer Williams had received a phone call on the morning of the arrest, which according to his testimony led him to believe appellant answered the description of a suspect in another crime. The officer later the same morning also received information at Harold's Club that there was a person there with two sets of identification who was acting in a suspicious manner. The officer then left Harold's Club and went to the Nevada Club looking for the subject. When the appellant noticed officer Williams at the Nevada Club, after the officer had spotted him, the appellant started to 'shuffle off.' The officer stated to the appellant that he wanted to talk to him. This request was later repeated during the time the appellant was attempting to evade the officer. When cornered, the appellant reached inside his coat pocket, whereupon Williams told him, 'Hold it, or I'll take your head right off at your shoulders.' The officer at that time removed a gun from the appellant's inside coat pocket.

Hollander's contention is that the arrest was not made with probable cause. Considering the information supplied the officer that there was a suspicious looking person in the gaming club with two sets of questionable identification, and the suspicious conduct of the appellant immediately before he was advised to halt, there was sufficient probable cause to justify the arrest and the search. As this court pointed out in Schnepp v. State, 82 Nev. ---, 415 P.2d 619 (1966), 'Reasonable cause for arrest has been defined as such a state of facts as would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that the person is guilty. * * * This includes suspicious conduct of the defendant in the presence of the officers.' See also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

The concluding movement of the appellant before being confronted by the officer was to put his hand in his inside coat pocket. This final gesture provided the climaxing motivation for his arrest in this case. United States ex rel. Robinson v. Fay, 239 F.Supp. 132 (D.C.1965).

3. Appellant contends he was denied effective counsel. This assignment of error is based on the refusal of the trial court to discharge the court-appointed attorney and provide new counsel. The objection is primarily grounded on the refusal of the appointed counsel to subpoena certain witnesses desired by the appellant and to otherwise conduct the hearing and trial in accordance with the appellant's wishes.

The expected testimony of the witnesses, the context of which was expressed to the trial judges below, was uniformly held by them to be irrelevant to the charges. We agree. To compel the attendance of the named public officials would have caused needless expense to the state and harassment to those officials without materially or relevantly aiding in the defense.

Appellant, of course, was entitled to 'effective' counsel. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); In the Matter of Kramer, 61 Nev. 174, 122 P.2d 862 (1942). Counsel was 'effective' here in pursuing his obligation to see that the appellant's right to a fair trial was not infringed. Under the circumstances, within his sound judgment, he offered or suggested to the appellant every reasonable defense available. An attorney's ability and effectiveness cannot be measured by the number of times he refuses to submit to the legally unsound whims and wishes of his client.

It is always within the sound discretion of the trial court to decide when a controversy arises concerning appointed counsel and the accused whether the matter will prevent a fair trial. State v. Jukich, 49 Nev. 217, 242 P. 590 (1926). There was no showing of incompetency or neglect on the part of appointed counsel in this case. On the contrary, it does not appear that under the circumstances of attempting to obtain the cooperation of a difficult client, that anything was left undone by counsel which would have substantially affected the outcome of the case.

After the refusal by the trial court to substitute counsel, appellant requested that he be allowed to defend himself. He undoubtedly has the right to do so if he so desires under normal conditions. State of South Dakota v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121 (1960), 77 A.L.R.2d 1229. This right has been imposed by the court itself under like circumstances. People v. Shields, 232 Cal.App.2d 716, 43 Cal.Rptr. 188 (1965). In this situation the obligation of the court and prosecution is still to insure the accused a fair trial. Garner v. State, 78 Nev. 366, 374 P.2d 525 (1962). This was adequately provided by the court in this instance. The court required counsel to remain in the courtroom and to be available to the appellant for assistance at all times. Appellant did confer with counsel during the course of the lower court proceedings. Counsel also did provide independent assistance whenever it was called for during the trial.

4. The appellant further raises on this appeal the contention that he was mentally incompetent and should have been granted a psychiatric examination as requested. This, too, is within the discretion of the trial court. ³

The only evidence offered relating to appellant's competency was his Army record of 1943 reflecting his discharge from the armed forces for psychoneurosis. Nothing else was presented to justify a doubt that he was not able to assist in his defense or that he was incapable of distinguishing right from...