Ricci v. State, 7386

• Decision Date: 04 June 1975
• Docket Number: No. 7386,7386
• Citation: 91 Nev. 373,536 P.2d 79
• Parties: Joseph Donald RICCI, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 79

536 P.2d 79

91 Nev. 373

Joseph Donald RICCI, Appellant, v. The STATE of Nevada, Respondent.

No. 7386.

Supreme Court of Nevada.

June 4, 1975.

Sanford, Sanford, Fahrenkopf & Mousel, Reno, for appellant.

Robert List, Atty. Gen., Carson City; Larry R. Hicks, Robert E. Rose, Dist. Attys., and Kathleen M. Wall, Asst. Chief Deputy Dist. Atty., Washoe County, Reno, for respondent.

OPINION

MOWBRAY, Justice:

A jury in Washoe County found Joseph Donald Ricci, the appellant, guilty of second-degree murder. The district judge, after denying Ricci's motion for a new trial, sentenced him to serve 15 years in the State Prison. Ricci has appealed from his judgment of conviction and the order denying his motion for a new trial.

1. Kenneth A. Muller, the victim of the murder, and his companion, Virginia Conlan, were, on the evening of August 18, 1970, hitchhiking on Interstate 80 east of Sparks, Nevada. Ricci, who was driving a 1969 Dodge automobile, stopped to give Kenneth and Virginia a ride. He was returning with his friend, Gary Ellington, to Yerington, Nevada. Some time after Ricci had picked up Kenneth and Virginia, he drove his car to the side of the road, stating that it was overheating. Ricci exited the car and raised its hood. He then asked Ellington to start the car, which Ellington did.

The testimony of Virginia, who was the State's principal witness, and that of Ricci differ substantially. Virginia testified that Ellington then shut the engine off and at Ricci's direction went to the front of the car. Both she and Kenneth remained seated in the car.

At this juncture, Ricci asked Kenneth if he knew anything about cars. Kenneth said he did not, but that he would see what he could do; and he went to the front of the car. Virginia testified that at this point she heard a yell that sounded like Kenneth's voice. As she jumped from the car, she saw Ricci and Kenneth struggling. The struggle carried the two men from the front of the vehicle along the passenger side to the rear of the automobile. Virginia testified that she heard a shot, and she saw Kenneth fall forward on his left side. Ricci, according to Virginia's testimony, turned toward her, and she, for the first time, saw a gun in Ricci's hand. Ricci ran for the car, while Virginia ran to Kenneth's aid. When she reached Kenneth, she glanced back and saw someone riding in the front seat passenger side of the car as it sped away with its lights off. ¹

Ricci testified that he went to the front of the car and raised the hood; that he asked Ellington to start the car. Then he noticed the oil cap was off, and he told Ellington to turn off the ignition. He asked if anyone knew anything about cars, at which point both Ellington and Kenneth exited the car.

Ricci stated that when he told Kenneth he had lost oil, Kenneth angrily declared, 'What the hell can we do?' Ricci then said he wanted the couple to leave the car. He shut the hood and walked to the passenger door in order to ask Virginia to leave. As he bent down to move the seat back forward, he heard someone running toward him. When he stood up and turned around, Kenneth, according to Ricci, slugged him on his left temple. The force of the blow knocked him backward and into the front seat of the car on the passenger side. As Kenneth started to approach him, Ricci reached into the glove compartment, grabbed his gun, cocked it, and while aiming it at Kenneth, said, 'Back off.' Kenneth, according to Ricci, then made a grab for the gun, but missed and grabbed Ricci's shirt instead, causing the firearm to discharge and the bullet to pass through Ricci's shirt before hitting Kenneth. Ricci claimed that Kenneth bent forward as if to grab his left thigh, and then he fell backward to the ground. When Kenneth said, 'Help me,' Ricci said he started to go to him, but Ellington yelled, 'Let's get out of here.' Believing that Kenneth was only wounded, the two men sped away.

2. Ricci's 1969 Dodge was admitted in evidence, over objection, as Exhibit DD for the limited purpose of permitting the jury to view the vehicle, first with the doors closed and then with the doors open, so that the jurors could observe the front seat area, the glove compartment (open and closed), and the dashboard, including the fuel, temperature, oil pressure, and alternator gauges. The jury viewed the vehicle in the basement of the county jail and in the presence of the defendant, his counsel, and all officers of the court. The judge explained to the jurors the limited purpose of the view. ² Ricci claims that the judge committed reversible error in admitting the vehicle into evidence, on the principal ground that the State had failed to establish an adequate chain of custody during the approximate 2 1/2-year period from the date of the killing to trial. Captain Kellerer of the Washoe County Sheriff's office testified that he had taken photographs of the vehicle immediately after the shooting, which photos were received in evidence without objection, and that, except for the 'wear and tear and fading of paint', the physical layout of the car, i.e., the doors, front seat area, dashboard, and glove compartment area, all appeared to be the same as when the shooting occurred.

This court said in Sorce v. State, 88 Nev. 350, 352--353, 497 P.2d 902, 903 (1972):

'. . . It is not necessary to negate all possibilities of substitution or tampering with an exhibit, nor to trace its custody by placing each custodian upon the stand; it is sufficient to establish only that it is reasonably certain that no tampering or substitution took place, and the doubt, if any, goes to the weight of the evidence. Oliver v. State, 85 Nev. 10, 449 P.2d 252 (1969); Carter v. State, 84 Nev. 592, 446 P.2d 165 (1968); Eisentrager v. State, 79 Nev. 38, 378 P.2d 526 (1963). . . .'

While the facts in Sorce are much more restrictive than those in the instant case, the same principle applies. There was no question that Exhibit DD was the 1969 Dodge Ricci was driving on the night he shot Kenneth. The car was admitted for the sole purpose of affording the jurors an opportunity to view it. The judge so instructed them prior to the view. We reject as meritless Ricci's contention that the court committed reversible error in admitting the vehicle in evidence for the limited purpose of permitting the jury to view it.

3. Ricci asserts that the judge committed error when he failed sua sponte to give the jurors a cautionary instruction when he charged them regarding the possibility of there being structural changes in the car since the date of the crime. Counsel for Ricci urges that the judge promised during the trial to give such an instruction. Prior to the jury's viewing the car the following colloquy took place between Ricci's counsel and the court:

'MR. FAHRENKOPF: It is my understanding the Court will give a cautionary instruction to the jury. There has been an elapsed period of time.

'THE COURT: I will do whatever is necessary in that way, and I will explain to them what we are going to do. We will bring them in now. Do you want to do this right now? We can bring the jury in. I can explain that to them. We can go on down to the basement and you can send Mr. Malloy and have him get things set up and we will go down and stand up down there.'

The court did just that, as evidenced in footnote 2, supra. At no time thereafter did Ricci's counsel request an additional formal instruction. Failing to do so, Ricci may not now complain. State v. Lewis, 59 Nev. 262, 271, 91 P.2d 820, 823 (1939); State v. Hall, 54 Nev. 213, 235, 13 P.2d 624, 630 (1932).

4. During their deliberations, the jury stated to Bailiff Archuleta that they wished to view the car once again. The bailiff, after securing approval of the judge, escorted the jurors to the basement of the jail, where a second view took place. When this occurred, in addition to the two bailiffs in charge of the jury there were present the court reporter and another deputy sheriff named Oxborn. There is no suggestion of impropriety or any communication between the unauthorized persons and the jury ³--merely the presence of the mentioned persons. Consequently, prejudice is not shown.

The appellant relies mainly upon the Ninth Circuit decision of United States v. Pittman, 449 F.2d 1284 (1971). There, the court reversed a conviction 'because the privacy of the jury room was improperly invaded by an agent of the prosecution.' The court noted that access to the jury during its deliberative process by any adversary simply cannot be tolerated.

The adversary to which the court referred was a government agent who had played a tape recording during trial. He also had testified at length as a witness for the government about surveillance and the chain of custody of the physical evidence, and had sat at the prosecutor's table throughout the trial. Later, during jury deliberation, that agent was asked to play the tape recording again.

Although prejudice was not shown, the fact that he had been a witness at trial for the government, and was later with the jury during its deliberation, convinced the court that due process was denied the accused.

To the same general effect is Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), where the Supreme Court found a denial of due process when the two principal witnesses for the prosecution were also in charge of the jury.

The case before us is not quite the same. None of those who accompanied the jury was a witness for the prosecution, and none was, within the meaning of Pittman or Turner, an adversary who had invaded the jury during its deliberation. Assuming it was wrong for them to have been there, on the record it was harmless.

5. During the trial a color photograph of Kenneth standing next to his mother was received in evidence. Kenneth's mother was asked if the photo fairly and accurately depicted the height and weight of her son at the time he was shot. She answered...