Sheriff, Clark County v. Warner

• Court: Nevada Supreme Court
• Writing for the Court: ROSE; STEFFEN; SPRINGER; SPRINGER
• Citation: Sheriff, Clark County v. Warner, 926 P.2d 775, 112 Nev. 1234 (Nev. 1996)
• Decision Date: 22 October 1996
• Docket Number: No. 27496,27496
• Parties: SHERIFF, CLARK COUNTY, Nevada, Appellant, v. George Henry WARNER, Respondent.

Page 775

926 P.2d 775

112 Nev. 1234

SHERIFF, CLARK COUNTY, Nevada, Appellant, v. George Henry WARNER, Respondent.

No. 27496.

Supreme Court of Nevada.

Oct. 22, 1996.

[112 Nev. 1235] Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Dan Seaton, Deputy District Attorney, Clark County, for Appellant.

John Glenn Watkins and John Hall Howard, Las Vegas, for Respondent.

OPINION

ROSE, Justice:

Respondent George Henry Warner (Warner) was arrested on August 7, 1989, and charged by a criminal complaint on August 15, 1989, with one count of first degree arson and one count of murder. The charges arose out of a fire on June 5, 1989, which resulted in the eventual death of Warner's wife Carol Warner (Carol) on June 20, 1989, of pneumonia. Warner filed in the district court a pretrial petition for a writ of habeas corpus. The district court granted the petition and we now reverse the district court's order.

FACTS

The fire occurred at approximately 3:00 a.m. on June 5, 1989, at the Warners' mobile home located within a mobile home park in Las Vegas, Nevada. After the fire began, the Warners' neighbor, Evelyn Farr, heard a male person call for help because his house was on fire. Farr called the fire department and began to spray water from her backyard toward the fire. Farr observed Carol appear at Farr's backyard door as if Carol had walked down the street and up Farr's driveway. Witnesses observed bloody footprints on the street leading to Farr's driveway. Carol was wearing a robe and asked to use Farr's shower. Shortly thereafter, Farr followed Carol into Farr's home. While Farr was in her backyard, she did not see anyone climb over the wall separating her property from the Warners' property and enter her backyard. The wall separating their property is four feet high with a dense hedge of eight-foot-high oleanders adjacent to the wall.

As a result of the fire, Carol sustained severe burns over 80 to 85 percent of her body. Carol was so badly burned that she was bleeding and her skin was hanging from her body. While paramedics were treating Carol for her burns in Farr's mobile home, Carol refused to see Warner and asked that someone call her children so that she could tell them what happened. Warner showed little emotion and asked few questions about Carol's condition. Upon arrival at the hospital, Carol was tracheally intubated and could not speak from that time until she died. Warner's injuries included a cut on his hand requiring stitches, singed hair on the back of his head, and a headache. Warner sustained no other injuries and witnesses observed that the white clothes Warner was wearing during the fire were virtually spotless.

Experts retained by the state opined that the fire was caused by arson with the use of an accelerant such as a flammable liquid. The experts' opinions were based on the burn patterns in the mobile home, the definite demarcation between burned and unburned material, the unusual burning of the floor boards, and the travel and spread of the fire. The burn patterns within the mobile home also suggested that the fire had three points of origin. One point was located on the seat of a lounge chair in the den. The experts further concluded that the burn patterns on Carol's body suggested that Carol was in a sitting or bent position at the time she sustained the burns, and that the burns were caused by an accelerant being poured on her and ignited.

Other evidence obtained by the state included evidence that Warner was involved in an extramarital relationship, an incriminating statement made by Warner that he intended to kill Carol, the presence of a gasoline can and a Bic butane lighter located outside of the mobile home after the fire, and evidence that Carol's ventilator which assisted her breathing had been tampered with while Warner was present in Carol's hospital room.

The state's theory of the crime is that Carol was asleep in the lounge chair in the den when Warner poured accelerant on her and ignited it. Awakened and burned by the fire, Carol then exited the mobile home through the front door and walked down the street to Farr's home to use the shower. Warner, on the other hand, contends that he was asleep in their bed when he awoke to the sound of Carol's screams. Carol opened the bedroom door and was engulfed in flames. Warner claimed he was unable to breathe because of the smoke and he hit the bedroom window and fell outside. Carol then exited through the window using the drapes to assist her to the ground. Warner claimed he then wrapped his robe around Carol and lifted Carol over the wall and through the oleanders into Farr's backyard. Warner asserts that the fire was caused by one of his dogs chewing through an electrical cord attached to a lamp.

At the initial inspection and examination of the fire scene, arson was not a suspected cause of the fire and the mobile home remained unsecured for eighteen days following the fire. Thomas Pugh, a fire investigator for an insurance company, first determined that the cause of the fire was accidental. Upon later review of the photographs and other evidence, Pugh suspected arson. When Carol died on June 20, 1989, the police began to suspect arson and sealed off the fire scene. On June 23, 1989, the police obtained and executed a search warrant for the mobile home.

Pursuant to the search warrant, the police gathered and impounded floor samples, carpet, electrical wire, broken glass, furniture, a portion of the front steps, a lamp, and a Bic butane lighter. Items which the state did not impound included the lounge chair, an ottoman used with the lounge chair, the robe worn by Carol, the gasoline can, the drapes, soil samples, and blood stains from the block wall located between the Warner and Farr homes. The police also took numerous photographs of the fire scene. The state tested samples of the lounge chair and ottoman and found no traces of an accelerant.

Although the district court's appointment of investigators to assist Warner occurred after the mobile home was lost or destroyed, Warner walked through the mobile home with Ronald Heilman, an investigator who performed an examination of the mobile home and its contents. While the exact date of the examination is unclear, it appears to have occurred several months after the fire. Heilman took photographs of the fire scene and observed that the ottoman was located on the seat of the lounge chair and that the two pieces of furniture were apparently fused or melted together as a result of the fire. Warner, who worked for the Nevada Highway Patrol, had access to the mobile home for some period of time after the fire. Several other people also had access to the mobile home, including a person who allegedly had a vendetta against Warner. Warner obtained a court order to preserve the mobile home and its contents, but the mobile home was apparently taken by a mortgagor some time after December of 1989.

After the filing of the criminal complaint on August 15, 1989, Warner was arraigned and a preliminary hearing was scheduled. Before the date set for the preliminary hearing, the prosecutor, without notice to Warner, presented the case to a grand jury on December 7, 1989. The grand jury indicted Warner for first degree arson and murder. Pursuant to the state's motion, the justice's court dismissed the criminal complaint. Subsequently, the district court granted Warner's petition for a writ of habeas corpus and dismissed the indictment, concluding that Warner had not been provided with reasonable notice of the grand jury hearing prior to the hearing, pursuant to Sheriff v. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989). Subsequently, this court held that the decision in Marcum did not apply retroactively. Gier v. District Court, 106 Nev. 208, 789 P.2d 1245 (1990). The district court then reinstated the indictment and Warner filed a petition for a writ of prohibition in this court. We granted the writ of prohibition, prohibiting the district court from reinstating the indictment, and we ordered the indictment dismissed.

The state then elected to file a second complaint on May 17, 1991. The justice's court dismissed the complaint as being in violation of NRS 174.085(5), and the state did not appeal. Subsequently, the district attorney, with notice to Warner, presented the case to a second grand jury between July 16, 1992, and August 20, 1992. Warner was represented by court-appointed counsel, and expert witnesses testified on behalf of Warner. The grand jury refused to indict Warner. In light of evidence that this result was based on conflict and discord among the grand jurors rather than a lack of probable cause, the district court granted the state's motion for a third grand jury hearing. This court denied Warner's petition for a writ of certiorari, prohibition, or mandamus.

The state presented the case to a third grand jury on February 17, 1994, and February 24, 1994. Warner's request for court-appointed counsel was denied. At the grand jury hearing, eighteen witnesses testified on behalf of the state. Warner testified in his own defense and the state provided the grand jurors with transcript testimony of Warner's experts who testified at the second grand jury hearing, and with various reports and records. The grand jurors acknowledged receipt of this exculpatory evidence. The grand jury indicted Warner for first degree arson and murder.

On November 16, 1994, Warner filed in the district court a petition for a writ of habeas corpus. After a hearing, the district court granted Warner's petition on two grounds: (1) the state's failure to preserve potentially exculpatory evidence was prejudicial to Warner; and (2) the district court's failure to appoint counsel to represent Warner at the third grand jury hearing deprived Warner of his Sixth Amendment right to counsel. The state filed a notice of...