Rhodes v. State, 6935

• Decision Date: 20 January 1975
• Docket Number: No. 6935,6935
• Citation: 91 Nev. 17,530 P.2d 1199
• Parties: Robert Louis RHODES, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1199

530 P.2d 1199

91 Nev. 17

Robert Louis RHODES, Appellant, v. The STATE of Nevada, Respondent.

No. 6935.

Supreme Court of Nevada.

Jan. 20, 1975.

Morgan D. Harris, Public Defender and Robert Stott, Deputy Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty., and Charles L. Garner and Daniel M. Seaton, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

THOMPSON, Justice:

This appeal is from judgment and sentence entered upon jury verdict finding Robert Louis Rhodes guilty of first degree murder and directing his imprisonment for life with the possibility of parole. We have considered the several claims of error and conclude that Rhodes received a fair trial and that the judgment and sentence may stand.

1. First, it is claimed that the grand jury indictment is fatally defective since it alleged nothing whatever concerning the means by which the crime was committed. Of course, such an allegation is essential. Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972). Here, however, Rhodes, after losing his challenge to the sufficiency of the indictment in the district court, failed to pursue his point further by appropriate writ. Had he done so, prohibition would have issued without prejudice to a new and sufficient accusation. Simpson v. District Court, supra. Instead, he elected to proceed to trial. Consequently, his present attack upon the sufficiency of the indictment is to be judged by a reduced standard which permits our examination of the trial transcript to augment the faulty indictment. Simpson v. District Court, supra.

The transcript shows that Rhodes shot his victim. Indeed, he does not now assert that the homicide was otherwise accomplished, that his ability to defend was impaired by reason of the faulty indictment, or that he was in anyway surprised or prejudiced thereby. It is apparent that he proceeded to trial upon the indictment as drawn because it was not important to him to compel an allegation concerning the means by which the homicide was committed. We, therefore, deny his present challenge.

2. Rhodes was 17 years old when the homicide occurred. Since he was a minor he contends that the charge against him fell within the jurisdiction of the juvenile court and that the district court lacked authority to hear the case without a certification that he stand trial in that court as an adult.

It is clear that if a minor, 16 years or older, commits a capital offense, the matter need not be referred to the juvenile division. NRS 62.080; 62.050; Lehmann v. Warden, 87 Nev. 24, 480 P.2d 155 (1971). Rhodes argues, however, that the subsequent decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), nullifies the mentioned statute and our Lehmann opinion. Although Furman v. Georgia, supra, proscribed the death penalty, it did not purport to treat the underlying gravity of 'capital offenses' for other purposes. We have so ruled with regard to bail, Jones v. Sheriff, 89 Nev. 175, 509 P.2d 824 (1973), and now extend that view to encompass the present issue. Juvenile court certification is not necessary when a minor is charged with a capital offense. Lehmann v. Warden, supra, continues to be viable.

3. Robert Born was shot in the head while at his grocery store in Las Vegas. The cash register was pried open and the money stolen. Rhodes was on probation when the killing occurred. His supervisory probation officer had received word that Rhodes was in possession of certain guns and had stated that people were looking for someone who had killed a grocer. Consequently, that officer and a companion probation officer decided to question Rhodes concerning his possible involvement with the homicide.

The interrogation occurred at the jail where Rhodes was in custody on other charges. The juvenile officers did not protect Rhodes' privilege against self incrimination by first warning him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During the course of their conversation Rhodes confessed that he had killed Born. Although the Miranda warnings were not given to assure Rhodes' awareness of his constitutional rights, there is absolutely nothing otherwise to suggest that his confession was coerced or involuntarily given. Indeed, the record reflects that Rhodes desired to tell his story of the crime in an effort to relieve destructive inner feelings, and that his confession was voluntarily given without coercion, actual or psychological.

The probation officers immediately notified the police that Rhodes should be interrogated, but did not tell them of the confession. The police came to the jail that same day, warned Rhodes of his constitutional rights in accordance with the commands of Miranda, and proceeded to question him. Rhodes orally confessed fully to them, and then signed a typewritten confession. The probation officers to whom Rhodes previously had confessed were present during the interrogation by the police officers.

Before trial, counsel for Rhodes moved to suppress all confessions. That motion was granted with regard to the confession before the probation officers, but denied as to the others. Since the successive confessions appear to have been a part of one continuous process, the failure of the first interrogators to honor the constitutional rights of Rhodes fatally infected the subsequent interrogation which followed in unbroken sequence. White v. State, 82 Nev. 304, 308, 417 P.2d 592 (1966). Accordingly, the motion to suppress should have been granted as to all confessions. However, this is of no moment in the case at hand since none of the confessions was offered in evidence at trial. ¹

The identity of a key prosecution witness was, however, secured from the confessions, and also information which led to the discovery of other physical evidence; a gun, metal fragments, and latent fingerprints. The testimony of the witness, a friend of Rhodes to whom he also had confessed his crime, and the mentioned physical evidence was received at trial over the objection that all such evidence was the fruit of a poisonous tree, that is, evidence secured as the result of illegal confessions and, therefore, inadmissible.

Hence, the issue: May the fruits of confessions given in violation of the procedural safeguards of Miranda be received in evidence if the confessions otherwise are shown to have been freely and voluntarily given?

a) On the evening of the homicide, Rhodes went to the home of a female friend, Patricia Lennon. During the course of their conversation, he told her that he had gone to the grocery store her rob it, hit the proprietor and then shot him, and...