Stalley v. State

• Citation: 91 Nev. 671,541 P.2d 658
• Decision Date: 23 October 1975
• Docket Number: No. 7781,7781
• Parties: Dove Douglas STALLEY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 658

541 P.2d 658

91 Nev. 671

Dove Douglas STALLEY, Appellant, v. The STATE of Nevada, Respondent.

No. 7781.

Supreme Court of Nevada.

Oct. 23, 1975.

Morgan D. Harris, Jerry E. Shiles and Howard Ecker, Deputy Public Defenders, Las Vegas, for appellant.

George E. Holt, Dist. Atty., Daniel M. Seaton, Chief Deputy Dist. [91 Nev. 672] Atty., and Frank Cremen, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

OPINION

THOMPSON, Justice:

This appeal is from judgments entered upon jury verdicts finding Dove Douglas Stalley guilty of forcible rape (NRS 200.363), second degree kidnaping (NRS 200.310(2)), and the use of a deadly weapon in the commission of a crime (NRS 193.165), for which he has been sentenced to serve respectively the terms of life with the possibility of parole, fifteen years, and life with the possibility of parole. The sentences are to run consectively. Six claims of error are asserted. In our view, none has merit and we affirm each conviction.

On December 14, 1973, the female victim, Gladys Tremaine, purchased a used car from Freddie's Auto Brokers where Stalley was employed as chief mechanic. About two hours later the car ceased to function and she telephoned Freddie's Auto Brokers for assistance. Soon thereafter Stalley arrived, but was unable to start the car. Stalley was driving a white Chrysler automobile, and offered to take Gladys home. She accepted his offer and advised Stalley of her destination. Stalley, however, drove in a different direction, and when she asked him to return to the proper course or she would jump from the car, he said, 'Jump at 35 miles an hour or stay and get balled.' He pointed a small calibre revolver at her and pressed it against her temple. Later, he pointed a knife at her and demanded that she undress. He stopped the car and sexual intercourse occurred. She then unsuccessfuly attempted to escape. Stalley resumed driving and continued to threaten her. She somehow managed to put on her coat and shoes, and when the car slowed for a turn, jumped therefrom, and ran and hid in the desert until Stalley had left the scene. She returned to the road and beckoned a passing car, which stopped, and the driver took her to the Las Vegas Police Department where she reported the occurrence, and then was taken to the hospital. She was in a highly emotional state. Her knees, abdomen and arms were abrased and bruised.

Because of the victim's description of Stalley, his Chrysler automobile, and place of employment, the police arrived at Stalley's home the following day. Stalley exited his home towards the white Chrysler car and was placed under arrest for rape. The car at that moment was occupied by Mrs. Stalley, a co-owner. The police impounded the car as evidence and removed it to the impound lot for later processing by the identification bureau.

The next day the car was photographed, checked for fingerprints, weapons, clothing, semen stains, and any other item of evidence that may bear relevance to the crime for which Stalley had been arrested. A search warrant was never obtained.

In the rear seat of the car was a trench coat, in the pocket of which was a knife. The victim testified at trial that Stalley was wearing a trench coat during their ride and that the knife was similar to the one he had used to threaten her. The coat and knife were received in evidence.

Although the police search of the car did not produce a small calibre revolver, a bartender testified that he had evicted Stalley from his bar for brandishing a small calibre revolver. This happened within several hours after the ride with Gladys Tremaine. We turn to discuss the assigned errors.

1. Stalley argues that the knife taken from the pocket of the trench coat on the rear seat of the white Chrysler automobile was the product of an illegal search and should not have been received in evidence. Although the search at the police impound lot sometime after the arrest cannot be justified as a search incident to arrest (Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Thurlow v. State, 81 Nev. 510, 406 P.2d 918 (1965)), it did not, in our view, offend constitutional proscriptions.

The officers came upon the automobile suddenly and inadvertently when they arrived at Stalley's home to place him under arrest. At that moment, they had probable cause to believe that the rape had occurred in that vehicle and that it contained items subject to seizure. Indeed, the officers had good reason to believe that the automobile itself was evidence. Moreover, it was in plain view and could have been removed by Stalley's wife, a co-owner. These circumstances satisfy the criteria of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), which approved seizure of the automobiles involved and delayed searches at the station. Cf. Coolidge v. New Hampshire, 403 U.S. 443 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), in which there was no 'exigency' when the initial seizure occurred. We hold that the seizure of the automobile and the delayed search and examination thereof was constitutionally permissible. Wright v. State, 88 Nev. 460, 499 P.2d 1216 (1972); Staab v. State, 90 Nev. 347, 526 P.2d 338 (1974).

2. It is contended that the conviction for second degree kidnaping must be annulled since the kidnaping was but a subsidiary incident to the crime of rape. In pressing this point the appellant relies mainly upon the New York case of People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842 (1965), and the California decision in People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 (1969). Both cases involved convictions for kidnaping and robbery. The circumstances in Levy led the court to conclude that the kidnaping involved a contemporaneous robbery and, therefore, was not to be considered a separate crime. Consequently, the kidnaping conviction was set aside. And, in Daniels the court ruled that if the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself, the kidnaping conviction cannot stand.

NRS 200.310(2) defines second degree kidnaping. ¹ As noted in Jacobson v. State, 89 Nev. 197, 510 P.2d 856 (1973), 'The statute is quite broad, and designates alternative circumstances which fall within its sweep. The crime is complete, for...