Spillers v. State

• Decision Date: 04 January 1968
• Docket Number: No. 5250,5250
• Citation: 84 Nev. 23,436 P.2d 18
• Parties: Pierce SPILLERS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 18

436 P.2d 18

84 Nev. 23

Pierce SPILLERS, Appellant, v. The STATE of Nevada, Respondent.

No. 5250.

Supreme Court of Nevada.

Jan. 4, 1968.

Richard E. Fray, J. Rayner Kjeldsen, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Washoe County Dist. Atty., Reno, for respondent.

OPINION

ZENOFF, Justice.

This is an appeal from the conviction of Pierce Spillers for rape accompanied with acts of extreme violence and with great bodily injury inflicted in violation of NRS 200.360(1).

On June 28, 1966 the prosecutrix was raped in her home in Reno during the early morning hours as she arose and prepared to go to work. She had arisen at approximately 1:00 A.M. The lights in various parts of the house were turned on. She heard a noise and suspecting a prowler went to the dresser and obtained a pistol kept there. She looked out of the bedroom into the hall and spotted the assailant. Temporarily unnerved, she was unable to fire the pistol. Whereupon he lunged; they wrestled for the gun, and a shot was fired into the ceiling as they struggled in the bedroom. The assailant gained control of the gun and told the screaming victim to be quiet or 'he'd choke her to death.' The assailant struck the victim on the head with the gun. Stunned, she slumped to a sitting position. When her four-year-old son awakened and entered the room the attacker put the gun to the boy's head and ordered the prosecutrix to tell the boy to go to his room or he'd shoot him. She so ordered the boy and he obeyed. Striking his victim once more the assailant threw her on the bed, tore off her clothes, covered her head with a pillow, struck her again and committed the act of rape.

After the attack she went to a neighbor's house for help. The police were called. The victim described the attacker as a Negro, approximately 23 years old, estimated his height and weight, and stated he was wearing prison-type garb and white tennis shoes.

With the aid of a police dog who trailed a 'track' (by scent) to the nearby Peavine Honor Camp, the police arrived at the camp and in due course of time apprehended Spillers because he answered the description of the assailant, and had blood and other stains on his clothes and bed sheets.

After a trial to a jury Spillers was found guilty of rape. The jury affixed the penalty at death and he appeals.

His assignments of error are numerous but they can be grouped: first, in the court's refusal to allow certain questions concerning racial prejudice at the voir dire examination; second, rulings on the admissibility of certain evidence; third, denial of certain motions, to wit, refusal to

(a) change venue and to grant a continuance because of pretrial and trial publicity;

(b) permit defendant to remain in the sheriff's custody in Reno instead of remaining in the state prison in Carson City, 30 miles away;

(c) allow funds for expert witnesses and additional discovery;

(d) suppress certain evidence that did not meet search and seizure requirements;

(e) allow a jury view of the premises where the attack took place;

(f) dismiss prospective jurors who did not believe in capital punishment; and

fourth, that NRS 200.360(1) is unconstitutional because it contravenes the 6th and 14th Amendments of the Constitution of the United States. There is no merit to any of the claims of error except the fourth.

Without reference to the fourth assignment of error a review of the entire case leaves no doubt as to the defendant's guilt inasmuch as the evidence thereof is convincing beyond a reasonable doubt. The assignments of error which go to the merits of the case depend largely upon the discretion of the trial judge which we find was not abused.

1. The prosecutrix is a white woman, Spillers is a Negro. One prospective juror at the voir dire examination for the selection of the jury was asked, 'You do not feel you have any antagonism inherent toward people of the Negro race at all?' Answer: 'No.' Question: 'Would you be quite agreeable to having a Negro person live next door to you?' Another question: 'Would you object to your children attending school largely populated by Negro children?' Upon objection the trial court ruled that those two latter questions were improper. Thereafter, no further efforts were made to develop disqualification for prejudice by reason of race, creed or color.

In a criminal case any party to a jury trial has the right to examine prospective jurors on the voir dire. Extent to which the parties may go in such an examination rests largely in the discretion of the court. On review such discretion is accorded considerable latitude. It is generally regarded as reversible error in a criminal case in which a Negro is a defendant to exclude questions designed to bring out that a prospective juror is so prejudiced against the Negro race that it would take less evidence to convince him that a Negro is guilty of a crime charged than to convince him that a white person had committed the same crime. State v. Higgs, 143 Conn. 138, 120 A.2d 152, 54 A.L.R.2d 1199 (1956), and cases cited therein. But here the trial judge was not given the opportunity to rule on the questions that would directly concern the state of mind of the jurors as would affect their abilities to sit on this case. They were not asked whether they would require more proof because the defendant is a Negro. We must assume that the jurors having been passed for cause and having survived the peremptory challenges had unprejudiced minds so far as the trial of this defendant is concerned. Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).

2. Many rulings were made concerning the admissibility of certain testimony and evidence. To itemize them would reflect only that they were the customary problems presented in a trial. Our review reveals no abuse of discretion and therefore no error. We rule the same on the objections to certain instructions given as well as those refused. The jury was adequately instructed on the applicable law.

3(a). Defendant stresses that pretrial publicity attending the trial of the case deprived him of a fair trial because the subject of prison camps (Spillers was an inmate at the time of the offense) was an issue in the gubernatorial campaign being waged during the same year. The trial court properly denied the motion for continuance and motion for change of venue after examining copies of the news articles and radio and television transcripts. Morford v. State, 80 Nev. 438, 395 P.2d 861 (1964). Only ordinary news value was assigned by the news media to this incident. We do not have here the situation of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), or Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), where the communities were saturated with publicity so complete in its envelopment that the prejudice of every juror could be presumed.

3(b) No prejudice was shown other than inconvenience that would require defendant's counsel to consult with him at the Washoe County Jail in Reno instead of at the state prison 30 miles away. Again, it was a discretionary matter. We find no abuse. Lewis v. United States, 277 F.2d 378, 380 (10th Cir. 1960).

3(c). No showing was made that funds were needed to obtain any particular material witness or evidence. In fact, whatever the prosecution had as evidence was made available to the defendant for examination before trial. Upon a showing of need the court may order provision be made for necessary witnesses or evidence, but the record is void of need.

3(d). Spillers complains that when he was arrested at the prison camp his clothing was searched and seized without court approved warrants or his permission. As to this, he has no standing to complain. He is in prison for a prior offense and a search of his quarters and seizure of his effects are not to be tested by the rules which apply to citizens who are possessed of full civil rights. People v. West, 61 Cal.Rptr. 216, 220 (Cal.App.1967). We add, the search and seizure was incident to a lawful arrest.

3(e). A jury view does not serve the place of evidence. Its only function is to assist the jury in comprehending the evidence before it. There was no abuse of discretion when the court did not grant the request.

3(f). NRS 175.105(9) ¹ compels the exclusion from the jury of anyone who entertains such conscientious opinions as would preclude his finding the defendant guilty if the offense is punishable with death.

The determination of guilt or innocence must be made free of any biases or prejudices. Certainly, a juror who has a fixed mind against the death penalty is not unbiased and, therefore, cannot adjudicate the facts fairly. Such a person is not competent to serve as a juror. We do not agree with the defendant's contention that a jury composed of 12 persons who are sworn that they can prescribe the death penalty in a proper case are death oriented. They are sworn only to do their duty as jurors. See State v. Williams, 50 Nev. 271, 257 P. 619 (1927).

4. The point raised as to the constitutionality of the rape statute has merit. ² A jury found Pierce Spillers guilty of rape with violence and imposed the penalty of death. Under that statute only the jury could direct death. Had Spillers entered a plea of guilty to the charge, the court could not have sentenced him to death. The court's power to punish is specifically limited to imprisonment for a term of not less than 20 years. Neither is the court empowered to exact the extreme penalty had Spillers pleaded not guilty, and with the State's consent and court approval waived a jury trial, been tried before the court and found guilty. (Rains v. State, 83 Nev. ---, 422 P.2d 541 [84 Nev. 30] (1967).) This lopsided penalty scheme is not constitutionally permissible. ³

The Sixth Amendment to the...