Serrano v. State

• Decision Date: 07 July 1967
• Docket Number: 5347,Nos. 5314,s. 5314
• Parties: Thomas SERRANO, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 831

429 P.2d 831

83 Nev. 324

Thomas SERRANO, Appellant, v. The STATE of Nevada, Respondent.

Nos. 5314, 5347.

Supreme Court of Nevada.

July 7, 1967.

Robert E. Rose, F. DeArmond Sharp, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., and Virgil D. Dutt, Deputy Dist. Atty., Washoe County, Reno, for respondent.

OPINION

COLLINS, Justice:

Thomas Serrano was indicted by the grand jury of Washoe County for the murder of Barry Forget. Following return of the indictment, the grand jury subpoenaed additional witnesses in its investigation of the case, but returned no other indictments. The district court refused to admit Serrano to bail.

He sought habeas corpus, contending there was no probable cause to indict him. He demanded copies of the transcripts of the evidence before the grand jury. The trial court granted him a copy of the transcript of the hearing which resulted in his indictment and found there was probable cause to try him for murder. It refused his request for a copy of the transcript of the second hearing into the case conducted by the grand jury which produced no indictments.

Serrano also sought a writ of habeas corpus demanding release on bail. At this hearing, the trial court, over Serrano's objection, considered only the transcript of evidence presented at the first grand jury hearing which resulted in his indictment, found there was evident proof or great presumption that appellant committed first degree murder and refused his release on bail.

Serrano appeals from both adverse rulings of the trial court on his application for habeas corpus. We find no merit to either appeal and sustain the orders of the trial judge.

On September 3, 1966 Barry Forget received a gunshot wound in a bar in Reno. The same day appellant was arrested, charged with the shooting and released on bail. Tracy E. Vincent was also arrested, charged as an accessory to the fact and released on bail. On September 14 Forget died and appellant was re-arrested, charged with murder and held without bail.

On September 30 the grand jury heard three witnesses and returned an indictment that day, charging Serrano with Forget's murder. Two other witnesses were subpoenaed but did not testify. On October 3 the grand jury resubpoenaed the latter two witnesses in the same case, heard their testimony, but returned no further indictments.

Serrano in testing probable cause by habeas corpus contended that he was entitled to copies of the grand jury transcripts for both September 30 and October 3. The trial judge ruled that the indictment was founded upon the September 30 transcript and gave appellant a copy. A dispute developed whether the grand jury hearing of October 3 was directed to other charges arising out of the same case or simply a device employed by the district attorney to discover testimony of other witnesses who might be favorable to appellant. The trial judge after an in camera inspection of the October 3 transcript denied appellant's request for a copy of it. The trial judge in his discretion also refused appellant's request for the transcript by way of discovery.

Serrano also sought to be admitted to bail. At that habeas corpus hearing the state offered only the grand jury transcript of September 30 and rested. Serrano objected to that evidence, contending he had a right to be confronted by the state's witnesses, to cross-examine them and that the transcript was hearsay evidence. The trial court denied his objections, considered the transcript, found there was evident proof or great presumption that appellant committed first degree murder and denied his application for bail.

On the writ of habeas corpus testing probable cause:

We said in Ivey v. State, 82 Nev. 448, 420 P.2d 853--854 (1966), 'One has a right to be free from harassment and restraint if probable cause for trial is not shown to exist. That right necessarily carries with it the right to know what evidence was formally received by the grand jury and supplied the basis for its indictment.'

The record in this case irrefutably shows the grand jury found and returned its indictment on the basis of the testimony taken September 30, 1966. Appellant received a copy of that transcript. The determination of probable cause for the indictment must stand or fall on that evidence alone. The trial court found that there was probable cause based upon the evidence in that transcript.

Appellant does not attack the probable cause sufficiency of the September 30 transcript, but contends the grand jury had no power to continue its investigation of appellant's case after returning its indictment or to lend its investigatory powers to the district attorney for discovery purposes. There is authority for such a contention, State v. Weagley, 286 Mo. 677, 228 S.W. 817 (1921); In re National Window Glass Workers, 287 F. 219 (D.C.N.D.Ohio, 1922); United States v. Pack, 150 F.Supp. 262 (D.C.Del.1957); United States v. Dardi, 330 F.2d 316 (2 Cir., 1964), but the question is not properly before us in this appeal. The state has not yet attempted to use the testimony, and may not for all we know. Appellant has not sought to suppress the evidence, objected to it or prohibit its use. When that question is properly before us, we will then consider it.

On the writ of habeas corpus seeking admission to bail:

Confrontation of witnesses, with the accompanying right of cross-examination, is a federal constitutional right to be accorded at trial, Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Messmore v. Fogliani, 82 Nev. 153, 413 P.2d 306 (1966). We said in Ex parte Wheeler, 81 Nev. 495, 406 P.2d 713 (1965), 'Some competent evidence tending to prove the commission of a capital offense must be offered before the accused's right to bail may be limited.' We think the transcript of the testimony of witnesses given before the grand jury upon which the indictment was founded, may be offered for that purpose. By itself, it may or may not be sufficient to meet the constitutional (Nev. Const. Art. 1, § 7) and statutory (N.R.S. 178.025) requirement that only where the 'proof is evident, or the presumption great' may bail be denied in a capital case. Howard v. Sheriff, 83 Nev. ---, 422 P.2d 548 (1967). The burden is still on the state to show that the right to bail is limited rather than absolute. Ex parte Wheeler, supra, 81 Nev. at page 499, 406 P.2d 713....