Pinana v. State

• Decision Date: 31 May 1960
• Docket Number: No. 4216,4216
• Citation: 352 P.2d 824,76 Nev. 274
• Parties: Thelma PINANA, Appellant, v. STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 824

352 P.2d 824

76 Nev. 274

Thelma PINANA, Appellant, v. STATE of Nevada, Respondent.

No. 4216.

Supreme Court of Nevada.

May 31, 1960.

Gray & Young, Reno, for appellant.

Roger D. Foley, Atty. Gen., William J. Raggio, Dist. Atty., Emile J. Gezelin, Chief Deputy Dist. Atty., Washoe County, Reno, for respondent.

McNAMEE, Chief Justice.

Appellant by jury verdict was found guilty of murder in the first degree and the jury by its verdict fixed the penalty at confinement in the state prison for life without possibility of parole. Appeal is from the judgment based on said verdict and from the order denying a new trial.

On September 14, 1958, in the home of appellant and her husband in Reno, Nevada, appellant shot her husband. The shooting occurred at 8 o'clock in the morning after the parties had been out all night visiting several bars and consuming a number of drinks. Immediately preceding the shooting they had engaged in an argument and had discussed a divorce. According to appellant's testimony the pistol had been in a drawer of the nightstand in the bedroom. She stated she intended to unload the gun and while it was in her hands it discharged. After being shot, the victim walked outside the house and fell dying in the street. Appellant was interrogated by police officials on the day of the shooting before she knew her husband had died and also on the next day after she had been informed of the death of her husband. An autopsy was performed on the deceased, revealing that three bullets had pierced the body of the victim.

Several weeks after the shooting, appellant was examined by a psychiatrist at the request of the district attorney. Thereafter a motion by her counsel that she be examined from a medical and psychiatric standpoint at county expense was denied. A motion for an order compelling the pretrial disclosure of an autopsy and blood alcohol report on the deceased, a blood alcohol test on appellant, and of certain statements made by appellant to law officials was denied. A petition for a writ of mandamus to compel such pre-trial disclosure was filed in this court and denied upon the ground that mandamus does not lie to control judicial discretion or to review the propriety of judicial action. Pinana v. Second Judicial District Court, 75 Nev. 74, 334 P.2d 843.

The specifications of error are hereinafter considered separately:

(1) Did the trial court err in refusing to permit pre-trial inspection of the autopsy report, blood alcohol tests, and statements of appellant?

Appellant concedes that there was no common-law right of discovery or inspection prior to trial in criminal cases. Such right was created in England in modern times upon the adoption there of a pretrial procedure which permits counsel for a defendant to have in his possession before the trial begins all of the evidence that can be presented at the trial. Of course, this change of the common law occurred long after the adoption of the common law in this state. Appellant contends that the adoption of the Nevada Rules of Civil Procedure, rules 34-37, which provide for pretrial disclosure in civil cases should be likewise applied to criminal actions because of NRS 178.225 which provides: 'The rules of evidence in civil actions shall be applicable also to criminal actions, except as otherwise provided in this Title.' This statute is identical with section 604 of the 1911 Act regulating proceedings in criminal cases found in NCL (1929) § 11251. It obviously could have no application to Nevada Rules of Civil Procedure which were adopted January 1, 1953. People v. Wilkins, 135 Cal.App.2d 371, 287 P.2d 555. See State ex rel. Keast v. District Court, 135 Mont. 545, 342 P.2d 1071. Furthermore, by its very terms it refers to 'evidence in civil actions' and not to procedure.

In the absence of statute giving a defendant the right to pre-trial inspection of the prosecution's evidence, the decisions are not harmonious in dealing with this matter. The general rule is that in the absence of statute the allowance of such inspection rests within the discretion of the trial court. Appellant concedes this in the oral argument. We assumed such to be the rule in Nevada, when in refusing to issue a writ of mandamus to compel the lower court to permit inspection we stated that mandamus would not lie to control judicial discretion. Pinana v. Second Judicial District Court, supra.

There are many good reasons why courts in the exercise of their discretion should be liberal in allowing pre-trial inspection of prosecution evidence, but proper limitations to such inspections must be respected. See People v. D'Andrea, 20 Misc.2d 1070, 195 N.Y.S.2d 542. Unless a trial judge is required by statute to permit a particular type of inspection, it is not erroneous for him to deny inspection where the basic rights of a defendant would not thereby be prejudiced. The trial judge before whom the situation can easily be presented is able to determine better than an appellate court what is proper in a particular case. We fail to find anything in the record to support appellant's contention that this denial of pre-trial disclosure prevented her from having a fair trial.

In her reply brief appellant states that if the court had inherent discretionary authority to permit pre-trial inspection it refused to exercise such discretion. This assertion is based upon this statement of the court: 'However, it may be a good thing to have pre-trial discovery in criminal cases, but until the Legislature tells me otherwise, the motion will be denied.' All that the court's statement amounts to is that, absent statutory compulsion, he would not grant the particular motion, under the particular circumstances, in the particular instance. But, in any event, as heretofore stated, no prejudice was shown to appellant by the court's ruling and, thus, no reversible error can be claimed therefrom. State v. Squier, 56 Nev. 386, 54 P.2d 227; NRS 169.110.

(2) Appellant claims that the court erroneously denied appellant's motion that she be given a pre-trial psychiatric and medical examination at the expense of the county.

Counsel concede that there is no statutory basis for such a motion but contend that the court has inherent discretionary power to grant such a motion, and for it to decline to consider the motion 'upon the ground that there is no statutory authority represents an abuse of discretion.' The record does not disclose that such was the reason for the court's denial of the motion. Nor does anything appear in the record to show that the court was of the opinion that it had no inherent power to grant such a motion. In our opinion this contention is without merit.

The court's denial of this motion did not result in a miscarriage of justice nor was appellant actually prejudiced in respect to a substantial right in view of the fact that she was examined before the trial by Dr. Raymond M. Brown, a physician and surgeon of her own choosing who was a specialist in psychiatry. His testimony at the trial based upon such examination was to the effect that appellant at the time of the shooting was suffering from a mental disease, that she had an acute psychosis, and was in a state of confusion, and that she did not know the nature and quality of the act which was committed.

We fail to see where appellant could have profited more from testimony given by such a specialist merely because his services were paid for by the county.

(3) Appellant contends that subsection 4 of NRS 200.030 is unconstitutional in so far as it permits a jury to fix the penalty for first degree murder at life without possibility of parole.

In her opening brief she fails to distinguish between pardon and parole. It is her contention that Article 5, § 14, of the Nevada Constitution, which empowers the governor, justices of the supreme court, and attorney general to 'remit fines and forfeitures, commute punishments, and grant pardons, after convictions' precludes the legislature from conferring the power of parole upon a court. The contention is without merit.

A parole is distinguishable from pardon. Ex parte Anderson, 191 Or. 409, 229 P.2d 633, 230 P.2d 770, 29 A.L.R.2d 1051; State ex rel. Murphy v. Superior Court, 30 Ariz. 332, 246 P. 1033, 47 A.L.R. 401; 39 Am.Jur., § 11, Pardon, Reprieve and Amnesty, p. 525. The rule by some decisions is that the power to pardon includes the power to parole. 67 C.J.S. Pardons § 19, p. 600. However the law seems well settled that no infringement upon the powers of the executive to grant pardons, reprieves, or commutations of sentences occurs, where a statute empowers an administrative body to establish a system of parole. Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897, 143 A.L.R. 1473 (Annotation, p. 1486); Application of Fredericks, 211 Or. 312, 315 P.2d 1010.

Likewise the pardoning and sentence-suspending power of the executive could not be infringed by statutes giving the courts power over paroles.

In Commonwealth ex rel. Banks v. Cain, supra, [345 Pa. 581, 28 A.2d 899.] the Pennsylvania Supreme Court said: 'The constitutionality of this statute is attacked on two principal grounds. The first is that it infringes upon the power of the Governor to grant commutations of sentence and pardons * * *. There is no novelty in this contention; it has been made many times in the courts of other states in which parole systems are administered by boards or prison managers, and has been rejected in practically all jurisdictions. (Citing cases) There is a radical difference between a pardon and a parole. A pardon is the exercise of the sovereign's prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he...