Wilkins v. State, 11628

• Citation: 96 Nev. 367, 609 P.2d 309
• Case Date: April 09, 1980
• Court: Supreme Court of Nevada

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609 P.2d 309 96 Nev. 367 Thomas Marshall WILKINS, Appellant,
v.
The STATE of Nevada, Respondent. No. 11628. Supreme Court of Nevada. April 9, 1980.

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Michael R. Specchio, Sinai, Ohlson, Schroeder, Specchio & Albright, ¹ Reno, for appellant.

Richard Bryan, Atty. Gen., Carson City, Michael S. Rowe, Dist. Atty., Minden, William J. Crowell, Jr., Sp. Prosecutor, Carson City, for respondent.

[96 Nev. 369] OPINION

MOWBRAY, Chief Justice:

Thomas Marshall Wilkins was convicted by a jury of the second degree murder of his wife, Jo Aline Wilkins. Wilkins appeals, raising twelve claims of error. We find no error, and affirm. Since many of appellant's objections have either been waived or are devoid of merit, we choose to discuss only four of those issues: (1) the juror selection process; (2) the admission of appellant's inculpatory statements; (3) the Allen charge to the jury; and (4) the sufficiency of the evidence.

THE FACTS

In November, 1976, a bottle hunter discovered the badly decomposed remains of a body, wrapped in a plastic sack, in a makeshift grave located in a remote area southeast of Gardnerville. The body was identified, through a comparison of dental records, as that of Jo Aline Wilkins, appellant's wife. Jo had been missing since April 30, 1975. Because of the body's advanced state of decomposition, the cause of death could not be ascertained with certainty. Asphyxiation, however, was stated as the most probable cause. Medical records indicated that, prior to her disappearance, Jo had been in excellent health. The body was discovered in an area frequented by appellant during his fishing trips.

One day prior to her disappearance, Jo had told a friend that she was going on a camping trip with her husband on the following day. Jo had stated as well that, after the trip, she planned to leave her husband, take her children by car to New Mexico, and start divorce proceedings. One day earlier, appellant confided to another person that he would foil his wife's expectations by secretly departing with the children.

[96 Nev. 370] After Jo's disappearance, appellant told the police that, following a heated argument, Jo had decided to hitchhike to her parents' home in New Mexico, leaving the children in his care. Appellant later stated that Jo might have taken a bus to New Mexico, explaining that her car was inoperable. Various records indicated that Jo's car had been recently repaired.

The day after Jo's disappearance, appellant moved to Oregon. A search of appellant's Oregon residence, after the discovery of Jo's body, revealed that appellant was in possession of most of her jewelry and personal

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possessions. In addition, appellant had forged his wife's name on her last paycheck, which he had cashed.

Other evidence at trial indicated that appellant and his wife had been involved in a major struggle over the custody of their children. There was testimony that Jo would not give up the children. Testimony indicated that appellant had been beating Jo, and that she was afraid that her husband might kill her. In addition, appellant had expressed his dislike of his wife to various people.

At trial, a police officer testified that, upon informing appellant that Jo had been found, appellant had spontaneously replied that he did not kill her. According to the officer's testimony, appellant had not yet been informed that Jo was dead.

The case, predicated to a large extent on circumstantial evidence, was tried to a jury. After fifteen hours of deliberation, over a two day period, the jury informed the trial judge in writing that it could not reach a unanimous verdict because "the evidence is not sufficient to return a verdict of guilty of murder." The jury was then given an Allen charge. Six hours later, the jury returned a guilty verdict of second degree murder. This appeal followed.

THE SELECTION OF THE JURY

Anticipating a lengthy juror selection process, the district judge suggested that one half of the jury venire be called on each of the first two days of juror selection. Over appellant's objection, the clerk summoned all members of the venire whose last names began with the letters A through H on the first day, and the remainder of the venire on the second day. The entire venire was called from the third day on.

The selection process lasted one week. The final jury panel consisted of four jurors who had been summoned on the first day, one juror who had been called on the second day, and seven jurors plus two alternates who had been selected from the [96 Nev. 371] full venire. The parties utilized sixteen peremptory challenges, four on the second day and twelve thereafter.

Appellant contends that this irregular method of selecting the prospective jurors prevented the final panel from being drawn "from a cross-section of the community," Marquez v. State, 91 Nev. 471, 473, 538 P.2d 156, 157 (1975), and that he was therefore denied due process of law. We disagree.

Appellant contends that the instant selection process, though irregular, is tantamount neither to the "systematic exclusion of members of a race or class," id.; see also Collins v. State, 88 Nev. 9, 13, 492 P.2d 991, 993 (1972), nor to the systematic exclusion of all individuals adhering to a particular philosophical or conscientious belief, see Bean v. State, 86 Nev. 80, 86, 465 P.2d 133, 138 (1970). In addition, appellant has not suggested any theory under which the instant selection process could have prejudiced him or his trial. See State v. Stella, 42 Nev. 467, 470, 180 P. 980, 981 (1919). We reiterate our previous holdings that absent either a showing of systematic, class-based exclusion of prospective jurors or a showing of prejudice, an irregularity in the selection of jurors, without more, must be deemed harmless error.

APPELLANT'S INCULPATORY STATEMENTS

At trial, Rodney Englert, an Oregon law enforcement officer, testified that when he informed appellant that Jo had been found, appellant had responded, "Fine, I have nothing to hide. I didn't kill her." According to this testimony, Englert then replied, "Who said she was dead?" This conversation was recounted as well by the prosecutor during his opening remarks.

Appellant contends, for the first time on appeal, that the admission of these statements into evidence was error since they were obtained from him...