Miner v. Lamb

• Decision Date: 26 January 1970
• Docket Number: No. 5992,5992
• Citation: 86 Nev. 54,464 P.2d 451
• Parties: Dennis Lee MINER, Appellant, v. Ralph LAMB, Sheriff, Clark County, Nevada, Respondent.
• Court: Nevada Supreme Court

Page 451

464 P.2d 451

86 Nev. 54

Dennis Lee MINER, Appellant, v. Ralph LAMB, Sheriff, Clark County, Nevada, Respondent.

No. 5992.

Supreme Court of Nevada.

Jan. 26, 1970.

[86 Nev. 55] James D. Santini, Public Defender, and Robert N. Peccole, Asst. Public Defender, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, george E. Franklin, Jr., Dist. Atty., and Addeliar D. Guy, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

COLLINS, Chief Justice.

This is an appeal from a denial of a pre-trial application for habeas corpus testing probable cause at a preliminary hearing. We affirm the denial.

In July, 1968, appellant and Paula Nichols, unmarried persons, were living together in an apartment in Las Vegas. About 11:30 p.m., July 8, John Zapantis, long-time friend of appellant, called at the apartment. One-half hour later appellant left for work. Around 1:30 a.m., July 9, Zapantis and Paula departed for the home of a friend. About 4:30 a.m., July 9, they returned to the apartment occupied by appellant and Paula, where they were met in front by appellant. Appellant and Paula engaged in a conversation not overheard by Zapantis and she then entered the apartment. Appellant then walked over to Zapantis and said, 'This is out of line, you know, John.' To which Zapantis replied, 'Well, maybe it is but there is no reason for you to think anything wrong.' Appellant then said, 'Maybe you are right.' Nothing further was said, and Zapantis left. Zapantis stated appellant did not seem to be upset, but that it was unlike him to say even that much since similar occurences had taken place before without comment from appellant. Zapantis testified there were no marks or bruises on Paula when he brought her back to the apartment.

During the early evening hours of July 9, police were called to the apartment by appellant's mother, where they found Paula dead on the floor.

Appellant told the police that shortly after Paula returned home at 4:00 a.m., she appeared groggy and later comatose. Appellant found her breathing had almost stopped and he attempted to revive her by shaking her and slapping her face. That approach being unsuccessful, appellant then tried mouth-to-mouth resuscitation, also without success. He then dragged her off a couch, across the living room and into the bathroom where he placed her in the bathtub. There he again slapped her face and turned on the cold water in an attempt to revive her. This process continued until about 7:00 a.m. when she appeared to be breathing normally. Appellant then placed her on a sofa and he went to sleep on a nearby couch. Upon awaking about 8:00 p.m., appellant found Paula on the floor next to the sofa. She appeared to be dead. He called his mother, who upon arrival at the apartment confirmed the apparent death of Paula and called the police. Appellant was arrested and charged with Paula's murder.

During the preliminary hearing on an open murder charge, Dr. James Clarke, a pathologist who had performed the autopsy, was called by the State as a witness. He testified that in his opinion Paula died from a cerebral concussion and subdural and subarachnoid hemorrhage due to multiple blunt traumatic injuries to the head and face caused by multiple blows to the head with somie heavy object, such as a fist. He was of the further opinion that these blows were 'homicidal' in nature. He also testified there were 12 or 14 bruises on Paula's head and face, although he did not count them nor examine them in detail. He also removed samples of blood, urine, tissue, stomach content and other substances from the body for testing. He was only partially aware of the results of the toxicological testing when he gave his testimony, but refused to change his opinion as to the cause of death when informed of the actual results of those tests. Appellant stipulated to the qualification of Dr. Clarke as an expert witness.

Appellant called Dr. Thorne Butler, a pathologist and toxicologist, as his witness. Dr. Butler had conducted various tests on the specimens removed from Paula's body and testified that in his opinion her body contained sufficient quantities of alcohol and barbiturates to cause her death. He had not examined her body. Dr. Butler also criticized the method used by Dr. Clarke to determine the time of death, his failure to determine the character of the bruises found on Paula's face and head, and his description of the blows he claimed were the cause of death as being 'homicidal.' That term, Dr. Butler said, was inappropriate for a forensic pathologist. Dr. Butler specifically testified that in his opinion the cause of death was 'most likely the cause of death is due to the synergistic effect of barbiturates and alcohol and that the trauma to the head, however caused, was a secondary and contributory--secondary and possibly contributory cause but not primary cause in itself.'

The magistrate held that the evidence adduced by the State established the corpus delicti of the open murder charge and that there was probable cause to believe appellant committed the crime.

Appellant contends that the testimony of Dr. Clark was not legally sufficient to support the order because it was based to a substantial degree upon guesswork, whereas an expert witness's opinion must be based on all the facts and that such facts must support reasonably certain deductions, as distinguished from mere conjecture. He cites Beasley v. State, 81 Nev. 431, 404 P.2d 911 (1965), and ...