Rogers v. State

• Decision Date: 03 September 1985
• Docket Number: No. 14020,14020
• Citation: 101 Nev. 457,705 P.2d 664
• Parties: Mark James ROGERS, aka Mark Joseph Heyduk, aka Teepee Fox, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 664

705 P.2d 664

101 Nev. 457

Mark James ROGERS, aka Mark Joseph Heyduk, aka Teepee Fox, Appellant, v. The STATE of Nevada, Respondent.

No. 14020.

Supreme Court of Nevada.

Sept. 3, 1985.

Thomas E. Perkins, State Public Defender, and J. Thomas Susich, Sp. Deputy State Public Defender, Carson City, for appellant.

Brian McKay, Atty. Gen., Carson City, Richard A. Wagner, Dist. Atty., Lovelock, for respondent.

OPINION

PER CURIAM:

Appellant, Mark James Rogers, was convicted by a jury of murdering three victims, for which he received a sentence of death. Additionally, he was also convicted of attempted murder and grand larceny. On appeal, Rogers raises numerous issues, none of which warrants reversal of the convictions or sentences imposed. We accordingly affirm.

The Facts

On December 3, 1980, Frank and Linda Strode returned from a Thanksgiving trip to their home in an isolated part of Pershing County near Majuba Mountain, where they resided with Frank's parents, Emery and Mary Strode, and Frank's sister, Meriam Strode Treadwell. When they entered the parents' trailer, they found the dead bodies of Emery, Mary and Meriam under a blanket in a bedroom. Emery had been shot three times and stabbed twice with a knife which was left in his chest. A pocket watch discovered in Emery's shirt pocket had been struck by one of the bullets; the hour hand of the watch was stopped at one o'clock. Mary had been stabbed in the back and shot in the chest. Meriam, whose wrists were bound with an electric cord, died from a single gunshot wound in her back. Emery and Meriam kept daily diaries. The last entry in both diaries was recorded on the morning of December 2, 1980.

On December 1, 1980, between 4:30 and 5 p.m., Robert Schott gave defendant a ride from Winnemucca to Imlay. As soon as Rogers climbed into Schott's truck, he looked nervously in both the back of the truck and the rear view mirror. Defendant introduced himself as John and claimed that he was a musician going to Reno to look for a job. At one point during the drive, defendant blurted out: "You may not believe it but I am a good American. You may not believe it but I'm on your side. I would fight for my country."

On December 2, 1980, between approximately 12:15 and 12:45 p.m., David Hartshorn, a geologist working at the Majuba Hill Mine, observed Rogers standing alongside a road near Majuba Canyon and offered him a ride. During the ride, Hartshorn gave defendant a can of Seven-Up to drink. Defendant stated that "[s]omebody is shooting rockets ... and one of these days it will hit my pyramid and blow me up." Rogers alighted at the Strode residence with the Seven-Up can in hand.

Between 12:30 and 2 p.m. that same day, Ray Horn, a mechanic at a nearby mine, was driving on a county road near Majuba Mountain. As he passed a dark metallic blue truck, a slender young man driving the truck shot at Horn several times. Between 3:30 and 4 p.m., Earl L. Smith, a highway maintenance worker saw Rogers standing on a road between Denio and Winnemucca and provided him a ride because defendant had run out of gasoline. Rogers was later observed traveling at an extremely high rate of speed in a blue truck, which was identified by its license number as the Strodes' truck.

On December 5, 1980, Rogers was refused entry into Canada. In conversing with a Canadian police officer, Rogers indicated that he was the King of North America. On January 4, 1981, defendant was arrested in Florida when he was seen riding on the bumper of a car, holding on to a luggage rack. After he was arrested, Rogers told police that God knew him and that we were all a part of mother nature. During fingerprinting, defendant refused to speak and wrote on a piece of paper that he belonged to the government. Later at the jail, defendant claimed that he had killed the Strode family in self-defense.

Rogers' fingerprints were lifted from various items in the Strode residence, including a Seven-Up can and a glass jar found in the bedroom under the blanket with the victims' bodies. At trial, the defense presented the testimony of several expert witnesses which indicated defendant was a paranoid schizophrenic at the time of evaluation and that defendant's behavior at the time of the commission of the crimes was consistent with psychotic paranoid delusions, schizophrenia and psychosis and that Rogers could not tell right from wrong or the nature and quality of his acts. One psychologist believed that defendant, who was trained in acting, was faking his symptoms. After finding the defendant guilty of the crimes charged, the jury imposed the death penalty for the three murder convictions, and prison terms for the attempted murder and grand larceny. Defendant now appeals the judgment of conviction and the imposition of the death penalty.

The Guilt Phase

Defendant contends that the court erred in denying his motion for change of venue because the editor/publisher of a local newspaper, in a conversation with defense counsel, acknowledged her prejudice against defendant. Defendant reasons that if the newspaper is biased, then the community must be biased. Counsel's affidavit in support of the motion to change venue was unsupported by any evidence which might have demonstrated the extent or inflammatory nature of any pretrial publicity, or whether there was any prejudicial effect on the prospective jurors. Under these circumstances, where defendant failed to demonstrate that any pretrial publicity corrupted the trial, the district court did not abuse its discretion in denying defendant's motion for change of venue. NRS 174.455; Kaplan v. State, 96 Nev. 798, 618 P.2d 354 (1980).

Relying on Sollars v. State, 73 Nev. 248, 316 P.2d 917, (1957), Rogers also argues that the district court erred by denying his motion to sequester the jurors. In Sollars, we reversed a first degree murder conviction because the trial court permitted separation of the jury where there was a daily barrage of inflammatory headlines in two daily Las Vegas newspapers. We determined that the court's admonition to the jury not to read the newspapers was insufficient because it could be inferred that the jury was exposed to prejudicial communications merely by glancing at any headline.

It is true that a trial court must exercise care and sensitivity in granting separation over a defendant's objection. We nevertheless conclude that Sollars is inapposite to the instant case. The district court's attention was not drawn to any newspapers or other forms of communication to which the jurors may have been exposed to the defendant's prejudice. Moreover, the grounds for defendant's motion were merely that "[n]o doubt there will be a great deal of publicity at the time of the present trial, and it will be most difficult for the twelve selected jurors not to be influenced by the negative feelings present in the community." The jurors were examined on voir dire regarding their exposure to news accounts of the crime. The trial court admonished the jury before each separation and in the final jury instructions that they were not to be influenced by public opinion and that they were to consider only the evidence produced at trial. As this Court stated in Crew v. State, 100 Nev. 38, 675 P.2d 986 (1984), the decision of the trial court "will be overturned only if appellant demonstrates that either the nature of the publicity or the jury's actual exposure to it created a probability of prejudice." Here, there was simply no demonstration that the jurors were exposed to any form of communication that would have adversely impacted their commitments to fairly and impartially weigh the evidence adduced at trial. The trial court did not abuse its discretion in denying sequestration. NRS 175.391.

Defendant insists that the State's failure to preserve the jar with his fingerprint on it that was found under the blanket with the victims' bodies deprived him of due process because an examination of the jar may have led to evidence refuting prosecution testimony. We disagree.

Where a defendant seeks to have his conviction reversed for loss of evidence he must show either bad faith or connivance on the part of the government or prejudice by the loss of the evidence. Wood v. State, 97 Nev. 363, 632 P.2d 339 (1981); Crockett v. State, 95 Nev. 859, 603 P.2d 1078 (1979). This burden requires a showing that it could be "reasonably anticipated that the evidence sought would be exculpatory and material to appellant's defense." Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979).

The record does not reveal any bad faith on the part of the State in failing to preserve the evidence. A State investigator testified that investigators preserved only what they believed were significant samples. Additionally, defendant has failed to carry the burden of showing how he has been prejudiced by the loss of the jar. The print lifted from the jar matched that of defendant. Defense counsel's mere assertion that his examination of the evidence may not have disclosed any of defendant's prints is not sufficient to show prejudice. Boggs, 95 Nev. at 913, 604 P.2d at 108 (a hoped for conclusion from examination of the destroyed evidence is not sufficient). Assuming, arguendo, that defendant's print was not on the jar, he has not demonstrated how the jar would have been exculpatory since his fingerprints were lifted from numerous other items found in the Strode residence which were preserved by the State. We therefore conclude that the State's failure to preserve the jar did not deprive Rogers of due process.

We are invited by the defendant to disavow the M'Naughten rule as the test for criminal responsibility and supplant it with the standard devised by the American Law Institute. Defendant's invitation is declined. We have recently rejected such a request and reaffirmed Nevada's use of the M'Naughten test for criminal insanity. Ybarra v. State, 100 Nev. 167, 679 P.2d 797 (1984); Poole...