Morford v. State

• Decision Date: 21 October 1964
• Docket Number: No. 4666,4666
• Citation: 80 Nev. 438,395 P.2d 861
• Parties: Lester E. MORFORD, III, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 861

395 P.2d 861

80 Nev. 438

Lester E. MORFORD, III, Appellant, v. The STATE of Nevada, Respondent.

No. 4666.

Supreme Court of Nevada.

Oct. 21, 1964.

Stanley H. Brown, Leo P. Bergin, Bradley & Drendel, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J., Raggio, Washoe County Dist. Atty., Reno, for respondent.

McNAMEE, Justice.

On October 3, 1962 an information was filed against the defendant which contained a charge that on August 22, 1962, within the County of Washoe, State of Nevada, he murdered Jack A. Foster by shooting him in the head with a pistol.

At the time of his arraignment on said charge and while he was represented by his attorney, on October 18, 1962 he entered a plea of not guilty. Thereupon, it was ordered that a trial by jury be held on December 3, 1962. On November 21, 1962 defendant appeared in court with his attorney who moved the court to continue the trial setting. The court thereupon set January 28, 1963 as the time for trial. Thereafter, without objection by defendant, the matter was further continued until April 22, 1963 for trial. On March 18, 1963 upon stipulation of counsel the trial date was reset for April 29, 1963.

On April 18, 1963 defendant's counsel filed a written motion for an order continuing the trial from April 29, 1963 'to a date when the prejudicial effect of the highly publicized death of Sonja McCaskie, deceased, will not influence unfairly the course of judicial proceedings.' This motion further stated that to proceed to trial under the prejudice and hostile sentiment of the general public resulting from newspaper, radio, and television publicity connected with the death of Sonja McCaskie would deprive the defendant of a fair trial and due process of law. The affidavit of Stanley H. Brown, one of defendant's attorneys, relates the daily accounts given by news sources in Washoe County relating to the death of Sonja McCaskie on April 6, 1963; that because of the similarity between the two homicides, particularly with respect to the age and prior history of the accused in each case, the publicity given the McCaskie case highly prejudiced the defendant herein.

The written motion for continuance was denied on April 19, 1963. Thereafter, on said last-mentioned date, defendant's counsel filed another written motion for an order continuing the trial from April 29, 1963 to a date not less than 30 days from April 19, 1963 upon the ground of the inability of a witness, Dr. Leslie H. Gould, to testify on the 29th day of April, 1963. This second written motion for continuance also was denied on April 19, 1963.

On April 26, 1963 defendant appeared in court with counsel and requested permission to withdraw his plea of not guilty and to enter a plea of guilty without specification of a degree. Permission to do so was granted. The plea of not guilty was withdrawn and defendant entered a plea of guilty. The trial setting for April 29, 1963 was then vacated. Thereafter pursuant to N.R.S. 200.030 this court entered an order appointing Honorable George Marshall, Judge of the Eighth Judicial District, and Honorable Peter Breen, Judge of the Fifth Judicial District, together with Honorable John W. Barrett, before whom the said plea of guilty was made, to determine the degree of the crime, and to give sentence accordingly. On July 15, 1963 the threejudge panel proceeded to hear evidence to determine the degree of the crime and the sentence. Upon the conclusion of the hearing the panel determined that the defendant was guilty of murder in the first degree and fixed the penalty at death. Judgment was entered accordingly. Appeal is from the denial of the two written motions for postponement of trial ¹ and from the said judgment.

At approximately 5:00 A.M., on August 22, 1962, Jack Foster, the victim, and his wife, Patricia, were arranging their clothes and other belongings in their car prior to departure from a Reno motel in which they had been staying. They returned to their room for an inspection to see if anything had been foregotten. At that time the defendant entered their room through the open door and held them at pistol point. When he found the Fosters were without funds he ordered the deceased to take him out of town. Patricia joined them in the car. Deceased did the dirving, and Patricia sat beside him. Defendant sat next to Patricia in the front seat at her right. Deceased drove the car to Truckee, then along the east side of Lake Tahoe to the Mt. Rose turnoff. He turned there onto the Mt. Rose Highway to a point where defendant directed him to turn off and stop. At all times in the car defendant held the gun in his right hand. Defendant then tied deceased's hands to the steering wheel. After a few moments and while it was still dark defendant shot Foster twice through the head. He removed the body of Foster from the car, drove on a short distance, stopped and had sexual intercourse with Mrs. Foster under the constant threat of the gun. Defendant then drove Mrs. Foster over Mt. Rose Highway to Steamboat Springs, between Carson City and Reno, and turned off the road. There again he had sexual intercourse with Mrs. Foster under the same circumstances as the first time. He then drove to Carson City where Mrs. Foster jumped from the car. Defendant was apprehended within an hour thereafter and took the officers to the spot where he had placed deceased's body. The same day he gave a detailed confession of the foregoing facts. Mrs. Foster in her testimony during the trial substantiated every material fact in the confession.

The errors assigned will be discussed separately.

1. Defendant contends that the court erred in refusing to grant his motion for continuance after the publicity broke with relation to the McCaskie case. The law is settled in Nevada that the granting of a continuance of a criminal case is within the discretion of the trial court. State v. Nelson, 36 Nev. 403, 136 P. 377.

There is nothing appearing from the record to suggest an abuse of discretion in the denial of the motion for continuance on the ground that publicity in connection with an unrelated case would prejudice the defendant. Cf. Robinson v. United States, 76 U.S.App.D.C. 29, 128 F.2d 322.

2. The denial of the motion for continuance based on the inability of Dr. Leslie H. Gould to testify is without merit. After Dr. Gould was contacted by the defense he was able to confer with Dr. Raymond Brown who was the defense's original choice for the expert testimony regarding the defendant's mental condition. No showing was made at the trial by the defendant that Dr. Brown's appearance was necessary. He was not called as a witness and Dr. Gould did in fact appear and testify. In any event the question whether the denial of the motions for continuance was proper became moot upon defendant's plea of guilty. See State v. Stoesser, Del.Super., 183 A.2d 824.

3. At the time his confession was given as aforesaid ² the defendant stated that he was willing to give a complete statement on the matter. No promises of leniency or reward were made in return for his making a statement. No coercion of any kind was used and the defendant stated that he was acting voluntarily. He admitted that he was aware of the various rights that he would ordinarily have, to wit, the right to counsel, the right to consult with people, and so forth. After such preliminaries his confession followed. At the end of his confession he stated that he had been advised of his rights and that he knew that he didn't have to answer the preceding questions unless he was willing to do so. Defendant's counsel nevertheless maintain that defendant should have been advised of his constitutional right that he did not have to make a statement, or if he did, that the statement could be used against him in open court. In our opinion the district attorney's admonition to the defendant before the confession was given met all constitutional requirements.

In Nevada, the rule as to admissibility of confessions is that they are admissible if voluntarily given. State v. Boudreau, 67 Nev. 36, 214 P.2d 135. Defendant does not contend on appeal that his confession was not given voluntarily. There was no duty to warn defendant of the consequences of his making a statement or that it might be used against him. State v. Gambetta, 66 Nev. 317, 208 P.2d 1059.

Appellant contends that even assuming that the confession was voluntary it was improperly admitted into evidence in view of two recent decisions of the United States Supreme Court: Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). These cases are easily distinguishable. Massiah was a federal case. In reversing the conviction, the Supreme Court held that defendant suffered a denial of the basic protections of the Sixth Amendment 'when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from his after he had been indicted and in the absence of his counsel.' The Court there said: 'All that we hold is that the defendant's own...