Lamb v. State

Citation127 Nev. Adv. Op. 3,251 P.3d 700
Decision Date03 March 2011
Docket NumberNo. 51457.,51457.
PartiesRobert Charles LAMB, Appellant,v.The STATE of Nevada, Respondent.
CourtSupreme Court of Nevada

OPINION TEXT STARTS HERE

Philip J. Kohn, Public Defender, and Kristine M. Kuzemka and Nancy Lemcke, Deputy Public Defenders, Clark County, for Appellant.Catherine Cortez Masto, Attorney General, Carson City; David Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Marc P. DiGiacomo, Deputy District Attorney, Clark County, for Respondent.Before DOUGLAS, C.J., PICKERING and HARDESTY, JJ.

OPINION

By the Court, PICKERING, J.:

Robert Lamb appeals his conviction of the first-degree murder of his sister, Susan. He identifies a multitude of errors, from his first encounter with the police, through pretrial proceedings, jury selection, and trial, to the mishandling of a jury note during deliberations and, finally, sentencing. For the reasons below, we conclude that: (1) the public safety exception to the Miranda rule made admissible Lamb's unwarned statement to the police that “I have a revolver, but I found it”; (2) Lamb's claims of pervasive procedural, evidentiary, and instructional error fail; and (3) it was error for the bailiff to communicate with the jury concerning its question without notice to the parties, but in this case the error was non-prejudicial. We therefore affirm.

I.BACKGROUND FACTS

Susan Bivans was shot eight times with a .22 caliber revolver in the parking lot outside her daughter's grade school. The assailant left on foot without taking Susan's purse or other belongings. Her husband, Stuart Bivans, met with police at the scene. Asked whether Susan had any enemies, Stuart said that she was terrified of her brother, Robert Lamb, who blamed Susan for their parents disowning him. Lamb's height, weight, and age matched witness accounts of the assailant's.

The evidence at trial, much of it Lamb's own writings, was circumstantial but compelling. It told the story of a desperately disturbed man, one obsessed with his sister and his jealousy over her relationship with their parents. His journals include statements like, “Intimidated, humiliated, oppressed, because Susan took control of parents and the money”; “Evil actions have consequences. You are selfish and greedy. Susan, it will be interesting how it plays out”; and “A cat fight between whores.... Sus[an] is so mean to me [because s]he resented that dad loved me and mom. My mission finding out [dad], Sus[an], money[,] lies.... Being dead does not absolve them of everything.”

Lamb did not just write about his sister. He also wrote to her and called and came to her home to berate her. His obsession worsened after he tried but failed to have himself appointed their parents' guardian. Then, not long after, Lamb's father died, disinheriting him.

Lamb's journals chronicle his surveillance of Susan's life, the cars she drove, their license plate numbers, and when and where her daily routines took her. Among his belongings was a bestselling mystery, Mortal Prey, from which he hand-copied excerpts, including the fictional killer's rumination about there being “blood ... on their hands and I will wash it off,” which he revised to “Blood on Susan's hands. I will wash it off.” The State maintained that Lamb scripted Susan's murder from this book, down to weapon choice, kill site, off-site parking, disguises, and how to dispose of the gun. He also researched Nevada's homicide and concealed weapon laws, its prisons, and the Las Vegas criminal defense bar.

Lamb had a concealed weapon permit and several 9 millimeter guns but no .22 caliber revolver. His apartment was a short drive from the school where Susan was shot. A security camera showed Lamb's Izusu Rodeo pulling into the apartment complex soon after the shooting. Evidence collected from Lamb's apartment and SUV included a cleaning brush for a .22 caliber weapon, binoculars, face makeup, and the remains of a home haircut and dye job. When he was arrested, Lamb's hair had been crudely cut and colored.

Lamb mounted a two-pronged defense at trial. First, he argued that the State hadn't met its burden of proving that he was Susan's killer because the murder weapon was never found and no forensic evidence linked him to the crime. Second, he maintained that the police bungled the investigation and let the real killer go free. Pressed to name possible enemies of Susan's besides Lamb, Stuart offered the name of Earl Cottrell, a friend's ex-husband. (The Cottrells' divorce was contentious, and Susan had sided with her friend.) Lamb seized on this and proffered Cottrell as a much likelier killer than himself. He thought it significant that the Cottrells' and Bivanses' daughters went to the same school, that Susan was shot on a Wednesday, and that Cottrell took his daughter to school on Wednesdays.

II.DISCUSSION

A. Fifth Amendment and Miranda challenges

Lamb first appeals the denial of his motion to suppress statements he made to the police in the field and later at the police station, before receiving Miranda warnings. He also asserts that the State's cross-examination of him violated the Fifth Amendment because it went beyond impeachment to improper comment on his exercise of the right to remain silent. As to the motion to suppress, we review the district court's legal conclusions de novo and its factual findings for clear error. Rosky v. State, 121 Nev. 184, 190, 111 P.3d 690, 694 (2005). Lamb did not object to the cross-examination questions he now challenges, so plain error review applies to them. Gaxiola v. State, 121 Nev. 638, 653, 119 P.3d 1225, 1236 (2005).

1. Lamb's statements to the police

Lamb had a series of encounters with the police, each producing statements later used against him at trial. The first encounter occurred at Lamb's apartment complex. Susan was shot just after 8 a.m. Within hours, a surveillance team had been set up outside Lamb's apartment. Around 1 p.m., a man fitting Lamb's description came out carrying a Hefty trash bag. He seemed to be headed toward a dumpster, then paused, looked around, and went to Lamb's SUV, opened its door, and put the bag inside. The police approached, several with handguns drawn, and ordered the man to the ground. One officer handcuffed him while another explained that he was not under arrest but needed to be detained. When asked his name, the man replied, “I don't know, I bumped my head.” Asked if he had identification, the man nodded toward his wallet. In the wallet was a driver's license confirming the man was Lamb.

The takedown occurred before the police, who were waiting on a warrant, had swept or secured Lamb's apartment. Not knowing who or what might be inside, or where Lamb might have put the gun if he was the shooter, an officer asked Lamb if there were any people, dogs, or weapons in the apartment that could cause them injury. Lamb answered “no” to the first two questions and said, “I have a revolver, but I found it” in response to the third.

At this point, the officers stopped speaking to Lamb and telephoned the lead detective, Lance Gibson, for direction. On Gibson's instructions, they said nothing more beyond asking Lamb if he would come to the Henderson police station to be interviewed. Lamb replied, “I don't want to but I will.” 1 At the station, Gibson introduced himself to Lamb and said, “I'm here to talk to you about a killing of a woman named Susan.” Lamb's response was “I don't know anybody named Susan.” 2 Gibson followed up with “you don't know anybody by the name of Susan?” to which Lamb responded, Susan Goddard?” (Lamb's sister's last name was Bivans and never had been Goddard.) Gibson then advised Lamb of his Miranda rights; he also offered Lamb medical attention, which Lamb declined. Lamb stated, “I'm not going to answer questions without a lawyer, but I'll listen to what you have to say.” Thereafter, Gibson showed Lamb a picture of Susan, prompting Lamb to say, “Pretty lady. She's the one who is dead?”

Lamb was arrested and transported to the Henderson jail for booking. When asked his name and other routine intake questions, Lamb initially said he couldn't remember. After learning that this meant he would be processed as a John Doe, a longer, more involved process, Lamb recovered his memory and provided his name, social security number, and other biographical information.

2. Public safety exception

Lamb's motion to suppress sought to exclude his statement to the police that “I have a revolver but I found it” as the product of custodial interrogation not preceded by the warnings required by Miranda v. Arizona, 384 U.S. 436, 467–68, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court agreed that the statement was unwarned and resulted from custodial interrogation. However, it held that Miranda did not require its exclusion because the “public safety” exception recognized in New York v. Quarles, 467 U.S. 649, 657–60 & n. 9, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), applied. Although this court has not previously addressed Quarles in a published opinion, we agree.

The “public safety” exception permits police officers to “ask a suspect questions without first giving Miranda warnings if they reasonably believe it is ‘necessary to secure their own safety or the safety of the public.’ United States v. Are, 590 F.3d 499, 505 (7th Cir.2009) (quoting Quarles, 467 U.S. at 659, 104 S.Ct. 2626), cert. denied, 562 U.S. ––––, 131 S.Ct. 73, 178 L.Ed.2d 241 (2010). In Quarles, a woman told police she had just been raped at gunpoint and that her attacker, whom she described, had just entered a nearby supermarket. 467 U.S. at 651–52, 104 S.Ct. 2626. The police apprehended the suspect in the market, wearing an empty shoulder holster. Id. at 652, 104 S.Ct. 2626. After handcuffing him, but with no Miranda warning, the officers asked the man where the gun was. Id. He told them it was “over there,” and the police found it in an otherwise empty carton in the area indicated. Id. The...

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