Santillanes v. State

• Decision Date: 21 February 1986
• Docket Number: No. 16276,16276
• Citation: 102 Nev. 48,714 P.2d 184
• Parties: Ismael G. SANTILLANES, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 184

714 P.2d 184

102 Nev. 48

Ismael G. SANTILLANES, Appellant, v.The STATE of Nevada, Respondent.

No. 16276.

Supreme Court of Nevada.

Feb. 21, 1986.

H. Leon Simon, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

AppellantIsmael Santillanes was arrested and charged with first degree murder with use of a deadly weapon.A jury found Santillanes guilty.Santillanes was sentenced to two consecutive life sentences with the possibility of parole.For the reasons set forth below, we conclude that the district court committed prejudicial errors.We reverse and remand for a new trial.

THE FACTS

On January 22, 1984, at 8:20 a.m., Pamela Leavitt was found dead in her apartment.Pamela Leavitt had died as the result of a stab wound in the chest.

The appellant, Ismael Santillanes, and Bruce Bennett shared the apartment above Leavitt.At trial, Santillanes testified that at approximately 3:00 a.m., while he was sitting alone in his apartment watching T.V., he heard footsteps outside his apartment and the breaking of a window.Upon investigation he saw a person with a flashlight walking away and noticed that one of Leavitt's windows was broken.Santillanes went to Leavitt's apartment and asked Leavitt what had happened.Santillanes and Leavitt called the police.The police arrived and found a window broken, the door to Leavitt's apartment pushed in and one of the locks broken.At the police's request Santillanes brought a hammer and tape from his apartment which he gave to Leavitt so that she could repair the broken window.The police left at approximately 3:30 a.m. Santillanes testified that he left Leavitt's apartment soon thereafter, and returned to his apartment.He testified that he did not hear anything else for the rest of the night except dogs barking.

The next morning Santillanes left his apartment to attend church.When Santillanes returned to his apartment, the police informed him of Leavitt's murder.Pursuant to a consent search, the police searched the Santillanes-Bennett apartment and confiscated a penlight, a pair of green fatigue pants and a white towel.All of the items had small spatterings of blood on them.The fatigue pants belonged to Santillanes and were found in his bedroom.Bennett testified that the blood on the towel was his as a result of a shaving accident.An expert witness testified that he was not able to identify the blood on the penlight other than it was human and not animal blood.Blood tests revealed that both Santillanes and Leavitt were blood type O.Further testing of the enzymes and proteins in their blood and the blood stains found on the fatigue pants revealed that the blood on the fatigue pants could not have originated from Santillanes but could have originated from Leavitt.

Upon request by the police, Santillanes agreed to go to the police station and give a statement.At the police station, Santillanes consented to give a blood and hair sample and to take a polygraph test at a later date.

At trial, witnesses testified that no foreign human hairs were found on Leavitt's body.No hairs from Leavitt were found upstairs in the Santillanes-Bennett apartment.Neither of the shoe prints taken from and around Leavitt's apartment was made by shoes confiscated from Santillanes' apartment.Latent fingerprints taken from the Leavitt apartment did not match any of the prints from Leavitt, Santillanes, Bennett and various police officers who had been in the apartment.

On January 31, 1984, Santillanes left Las Vegas prior to taking the polygraph test.He went to Mexico and upon re-entry into the United States was arrested for desertion from the Air Force.

At trial the district court admitted, over objection, testimony surrounding Santillanes' failure to take the polygraph test to show Santillanes' consciousness of guilt.

THE EVIDENCE OF FAILURE TO TAKE A POLYGRAPH TEST

Santillanes contends that the admission of the evidence that he failed to take a polygraph test was prejudicial, constitutional error which mandates a reversal of the conviction.We agree.

On January 22, 1984, the day of Leavitt's murder, Santillanes did agree to take a polygraph test.On January 24, 1984, Santillanes spoke with a police detective.The test was scheduled for January 26, 1984.On January 25, 1984, Santillanes again spoke with the detective and informed the detective that he wanted to consult with a counselor at Nellis Air Force Base before taking the polygraph test.The detective told him that he should not talk to the legal counsel on the Base.Santillanes left Las Vegas on January 31, 1984.

Evidence of the results of a polygraph test is...