Ogden v. State

• Decision Date: 11 March 1980
• Docket Number: No. 10706,10706
• Citation: 96 Nev. 258,607 P.2d 576
• Parties: Kenneth OGDEN, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 576

607 P.2d 576

96 Nev. 258

Kenneth OGDEN, Appellant, v. The STATE of Nevada, Respondent.

No. 10706.

Supreme Court of Nevada.

March 11, 1980.

Morgan D. Harris, Clark County Public Defender, and Terrence M. Jackson, Deputy Public Defender, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., Clark County and Valerie Stewart, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

MANOUKIAN, Justice:

This is an appeal from a judgment convicting Ogden of first degree murder resulting in appellant's being sentenced to a term of life with the possibility of parole. Appellant contends the trial court erred (1) in instructing the jury that a person capable of knowing right from wrong must be regarded as capable of entertaining intent and of deliberating and premeditating; (2) by failing adequately to instruct the jury regarding premeditation and deliberation; (3) in admitting appellant's statements made during police interrogation; (4) in refusing to instruct concerning certain factors to be considered in determining voluntariness; and (5) in refusing defense instructions on reasonable doubt as to degrees of murder. We now turn to consider these questions.

On February 29, 1976, at approximately 6:30 p. m., Joseph Poplaski was found dead in a cottage he was remodeling. The autopsy subsequently performed revealed that the death was caused by two gunshot wounds through the back of the head with a .25 caliber weapon fired at point blank range and less than a second apart.

Appellant, who was nineteen at the time of the incident, had worked with the victim for about a week prior to the occurrence. Appellant's usual duties consisted of pumping gas at Poplaski's gas station; however, appellant and Poplaski were working on the cottage on the day of the incident. The Poplaskis lived in a trailer next to the cottage and gas station. The victim, his wife and the appellant had returned from buying remodeling supplies at approximately 1:00 p. m. that afternoon, after which Mrs. Poplaski went into the trailer to sleep while the appellant and her husband began work in the cottage. Mrs. Poplaski testified that she fell asleep and was awakened by appellant who made several requests. Mrs. Poplaski finally woke up at approximately 4:00 p. m. and began looking for her husband. When she was unable to find him, she called a friend who subsequently discovered the body in the locked cottage. Appellant's whereabouts were unknown.

There was no evidence of a struggle at the scene. The victim's .25 caliber pistol, which was subsequently identified as the murder weapon, was found at the scene. Of the two safes in the victim's gas station one was found open and empty. The fingerprints taken from the cash tray located in a refrigerator in the station, were later matched to fingerprints of the appellant. The victim's wallet was found behind the gas station under a tarpaulin several days after the incident.

On March 4, 1976, Detective Lee Barlow of the Las Vegas Metropolitan Police Department, interviewed appellant in Canada where the detectives had located him. On the first day of the interview, at approximately 3:00 p. m., appellant initially denied involvement in the killing, but later stated that it could have been self-defense. The interview that day ended at approximately 6:00 p. m. On the following day, appellant again returned to talk to the detectives and made a taped statement in which he admitted shooting the victim and taking money to pay for his trip back to Canada. Appellant also told the detectives where the previously undiscovered wallet could be found. Barlow testified that prior to each of the two interviews, appellant was advised of his Miranda rights.

1. The Instruction on Criminal Capacity.

Jury Instruction Number 12 stated, "You are instructed that a person with a mind capable of knowing right from wrong must be regarded as capable of entertaining intent and of deliberating and premeditating." (Emphasis added.) Appellant argues that this instruction created a presumption which had the effect of improperly shifting the burden of proof to the defense as to deliberation and premeditation, thereby being violative of the due process clause of the fourteenth amendment as well as of NRS 47.230(2). We disagree.

In Pinana v. State, 76 Nev. 274, 287, 352 P.2d 824, 831 (1960), we held that such language embodied in a jury instruction was a correct statement of the law. See also Criswell v. State, 84 Nev. 459, 443 P.2d 552 (1968). Here, appellant did not interpose the defense of insanity, but instead presented evidence of his asserted condition of depression immediately preceding the homicide. This court has rejected the doctrine of partial responsibility or diminished capacity. See Fox v. State, 73 Nev. 241, 244, 316 P.2d 924, 926 (1957). We are unpersuaded by appellant's argument and decline to depart from the right-and-wrong test which we have applied since State v. Lewis, 20 Nev. 333, 351, 22 P. 241, 247-48 (1889).

The instruction in the instant case did not advise the jurors that if they found the defendant knew right from wrong, they must find he did entertain intent or did deliberate and premeditate. The instruction merely stated that the defendant was capable of such. See Geary v. State, 91 Nev. 784, 792-93, 544 P.2d 417, 423 (1975). Although we believe this instruction was not essential to the case, and, indeed, is undesirable in the context of this case, we disagree that the reading of this instruction constituted error.

Finally, this instruction did not shift the burden to appellant as the jury was fully informed by court admonitions, instructions, and argument of counsel, that the state had the burden of proving every element of the crime beyond a reasonable doubt. See Pinana v. State, 76 Nev. at 287, 352 P.2d at 831; see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The instruction reserved to the jury full discretion to determine whether appellant entertained the necessary intent, deliberation and premeditation. The challenged instruction does not improperly shift the burden of persuasion from the state to the defendant and did comport with due process, as well as state law. Cf. Mullaney v. Wilbur, 421 U.S. 684, 703, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (Maine murder statute unconstitutionally required defendant to rebut statutory presumption that he committed murder with "malice aforethought" by proving that he acted in the heat of passion on sudden provocation).

2. Premeditation and Deliberation Defined.

Jury Instruction Number 11 generally described the time lapse necessary to form malice aforethought prior to a killing. The instruction stated that it was "only necessary that the act of killing be preceded by and be the result of a concurrence of will, deliberation and premeditation on the part of the slayer, . . . ." Appellant contends that the instruction is incomprehensible to jurors as it fails to define premeditation and deliberation. He then argues that this deficiency, coupled with the rejection of his proffered instructions, mandates reversal. There is no merit to this claim.

This instruction is identical to one previously upheld by this court. Scott v. State, 92 Nev. 552, 554 n.2, 554 P.2d 735, 737 n.2 (1976); see also State v. Fisko, 58 Nev. 65, 80, 70 P.2d 1113, 1118 (1937). In Scott, however, the appellant did not contend that the instruction was an inadequate definition of premeditation and deliberation. The unsuccessful challenge was that the instruction failed to distinguish between first and second degree murder.

In People v. Anderson, 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968), the court recognized that the California Legislature did not intend "to give the words 'deliberate' and 'premeditated' other than their ordinary dictionary meanings." Id. 70 Cal.2d at 26, 73 Cal.Rptr. at 556, 447 P.2d at 948. In the instant case, other instructions given carefully differentiated first from second degree murder and counsel for both sides argued the lack of or presence of these distinguishing factors of premeditation and deliberation in their closing arguments. There is nothing to indicate that such words are used in law other than in their ordinary sense. Although appellant's instructions would have expended on the meaning of those terms, the law is substantially encompassed in the instructions given. Kelso v. State, 95 Nev. 37, 44, 588 P.2d 1035, 1040 (1979). Geary v. State, 91 Nev. at 793, 544 P.2d at 423. Finally, the state did show the bases for finding premeditation and deliberation from the fact that appellant removed the victim's gun from the service station, carried it in his sock for an appreciable period of time during which he worked alongside of the victim, was short of money, and had a motive for robbery, had an immediate desire to return to Canada and shot the victim twice while the victim was facing a wall installing paneling.

3. The Confession.

During the second day of interviewing appellant in Canada, Las Vegas police conducted a polygraph examination on appellant which lasted about one and one-half hours. Following this, appellant was again advised of his Miranda rights and stated during a ten minute interview that he shot the victim in the back of the head for purposes of robbery. Appellant contends that the state failed to meet its burden that these statements were voluntary in that appellant had a low I.Q., was easily intimidated, and was psychologically coerced. We cannot agree.

The state has the burden of showing the waiver of fifth amendment rights by a preponderance of the evidence. Brimmage v. State, 93 Nev. 434, 438, 567 P.2d 54, 57 (1977). The trial court first heard evidence on the voluntariness issue before finding that the confession was given voluntarily. The evidence was then submitted to the jury which was instructed to make a specific finding on the...