Wilson v. State, s. 12346

• Decision Date: 10 May 1983
• Docket Number: Nos. 12346,13267,s. 12346
• Parties: Edward Thomas WILSON and John Steven Olausen, Appellants, v. The STATE of Nevada, Respondent. John Steven OLAUSEN and Edward Thomas Wilson, Appellants, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 328

664 P.2d 328

99 Nev. 362

Edward Thomas WILSON and John Steven Olausen, Appellants, v. The STATE of Nevada, Respondent.

John Steven OLAUSEN and Edward Thomas Wilson, Appellants, v. The STATE of Nevada, Respondent.

Nos. 12346, 13267.

Supreme Court of Nevada.

May 10, 1983.

Rehearing Granted Aug. 24, 1983.

David G. Parraguirre, Acting Washoe County Public Defender, and N. Patrick Flanagan, Sp. Deputy Public Defender, Reno, for appellant Olausen.

Fred H. Atcheson, Reno, for appellant Wilson.

Brian McKay, Atty. Gen., Carson City, Mills Lane, Washoe County Dist. Atty., and Edward B. Horn, Deputy Dist. Atty., Reno, for respondent.

OPINION

MANOUKIAN, Chief Justice:

Appellants pleaded guilty to murder, robbery with the use of a deadly weapon, and kidnapping with the use of a deadly weapon. A penalty hearing was held, after which a three judge panel sentenced appellants to death. ¹ Subsequently, appellants moved to withdraw their guilty pleas. The lower court denied their motions and appellants appealed from the denial of their motions, from the judgment of conviction and from the imposition of the death penalty. Appellants proffer several grounds for reversal. For reasons hereinafter set forth, however, we find no reversible error and affirm.

1. The Facts.

In the afternoon of June 24, 1979, Officer James Hoff of the Reno Police Department, posing as a narcotics dealer, met with appellant Wilson to discuss a drug transaction in which Wilson was to sell Hoff ten ounces of cocaine for $16,000. During the meeting, Wilson and Hoff made arrangements for the sale to take place that night around midnight. Later in the day, Wilson, along with appellant Olausen, approached David Lani and Fred Stites and told them that they were making a drug deal and that they wanted to murder the dealer. Wilson then asked Lani and Stites to assist in the murder. The four proceeded to discuss how and where the killing could be done. Lani told the group that he knew a place by the Riverside Convalescent Center where the killing could take place. They then devised a plan to kill Hoff because they wanted to take the money and they did not want any witnesses.

All four purchased baking powder as a substitute for the cocaine. Later on in the evening they placed the baking powder and three knives in a duffel bag and walked to the Convalescent Center. Once there, they cut and gathered bushes under which to hide when Wilson returned with Hoff. Wilson then left the area to contact Hoff. Meanwhile, the other three remained at the Convalescent Center where they hid in the bushes, each armed with a knife.

On June 25th at 12:10 a.m., Hoff met Wilson at the El Tavern Motel in Reno. Before this meeting, Hoff had obtained $16,000 in $100 bills which were photocopied and their serial numbers recorded. Then Hoff and another officer installed a Kel listening device on Hoff's vehicle. Finally, numerous surveillance teams were dispatched throughout the area to observe the transaction. Unfortunately, shortly after Hoff met Wilson, the listening device malfunctioned; therefore, both audio and visual contacts were lost on several occasions throughout the night.

After the rendezvous, Hoff and Wilson drove around Reno until approximately 1:30 a.m., at which time Hoff parked the car in a wooded area near the Riverside Convalescent Center. As Hoff and Wilson got out of the car, Lani jumped out of the bushes and stabbed Hoff in the back. The others came out of their hiding places and together stabbed Hoff an additional eight times. About fifteen minutes later, the vehicle left the wooded area at a high rate of speed heading west toward Verdi, Nevada.

The vehicle was lost by the surveillance teams somewhere near Verdi and it was not spotted again until approximately 3:15 a.m. At that time, backup units were called in to stop the car. Nevertheless, the car was not found until much later. It was unoccupied and stained with blood.

After discovery of the automobile, a search for Hoff and the suspects was initiated. In the afternoon of June 25th, appellants were found sleeping in some bushes alongside a trailer park. On the ground between appellants, officers found a vest containing $1,670. Fourteen of the sixteen hundred dollar bills in the vest matched those photocopied by Hoff. Wilson and Olausen were immediately placed under arrest. A few hours later, officers found the body of James Hoff buried under a pile of rocks in a drainage ditch in Verdi, Nevada. Stites and Lani were subsequently arrested in Oklahoma. They were returned to Nevada, after which all four defendants pleaded guilty. ²

2. The Guilty Pleas.

In Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), we concluded that certain minimum requirements must be met when a judge canvasses a defendant regarding the voluntariness of a guilty plea. We held that the record must affirmatively show the following: (1) the defendant knowingly waived his privilege against self-incrimination, the right to trial by jury, and the right to confront his accusers; (2) the plea was voluntary, was not coerced, and was not the result of a promise of leniency; (3) the defendant understood the consequences of his plea and the range of punishments; and (4) the defendant understood the nature of the charge, i.e., the elements of the crime. Id. at 781, 476 P.2d at 963. As to this last requirement, we subsequently held that in order for the record to show an understanding of the nature of the charge it is necessary that there be either a showing that the defendant himself understood the elements of the offense to which the plea was entered or a showing that the defendant has made factual statements to the court which constitute an admission to the pleaded to offense. Hanley v. State, 97 Nev. 130, 135, 624 P.2d 1387, 1390 (1981). In the instant case, the record demonstrates that the district judge fully complied with the requirements of Higby and Hanley by conducting a thorough canvass of Olausen and Wilson before accepting their pleas. Nevertheless, both appellants contend that their pleas were not freely and voluntarily entered. We will discuss the claims of each appellant separately below.

Shortly after Olausen's arrest, the chief criminal deputy district attorney for Washoe County informed Olausen that the District Attorney's Office would not seek the death penalty if he told the authorities the whereabouts of James Hoff. Olausen accepted this bargain. As Olausen directed the authorities toward Verdi, however, an announcement came over the police radio that Hoff's body had been located. Although the District Attorney did not feel that he was legally obligated to keep the promise of his deputy, he agreed that he would not affirmatively seek the death penalty against Olausen in order to support the integrity of his office. Olausen first contends that the District Attorney's demeaning treatment of his own promise and his aggressive argument at the penalty hearing violated the implicit terms of the plea agreement. We disagree.

Without citing any authority, appellant argues that the District Attorney breached the agreement when he stated that he would not seek the death penalty but that he was only doing so to support the integrity of his office. Because Olausen has cited no authority in support of this contention, we need not consider it. Plankinton v. Nye County, 95 Nev. 12, 588 P.2d 1025 (1979). Nevertheless, due to the gravity of the offense and consequent penalty, we are constrained to address the claim. A similar argument was made in Bergman v. Lefkowitz, 569 F.2d 705 (2d Cir.1977). There, the appellant claimed that the prosecutor breached his promise when he "grudgingly" made the sentence recommendation he had promised. In holding that such an attitude did not violate the prosecutor's promise, the court in Bergman stated:

We perceive no dispositive significance in this. In almost all cases where a prosecutor agrees in a plea bargain to make a sentence recommendation, he is recommending not what he wants but something less, which the agreement requires. This is the very essence of the bargain and the sentencing judge is well aware of it.

Id. at 714. We find the reasoning in Bergman applicable to the instant case.

Olausen also contends that the prosecutor's aggressive argument and his presentation of aggravating circumstances violated the implicit terms of the agreement; for support Olausen relies primarily on the case of Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (Pa.1971). In Alvarado the prosecutor promised not to seek the death penalty if the accused pleaded guilty to rape and murder. The accused claimed that the prosecutor breached the agreement when he reviewed the aggravating circumstances and argued the viciousness of the crime and the accused's lack of remorse. The Supreme Court of Pennsylvania agreed with the accused in holding that the state had breached its promise by making damning statements at the time of sentencing. Accordingly, the court vacated the sentence of death and sentenced Alvarado to life in prison.

Alvarado, however, is readily distinguished from the instant case. In reaching its decision, the Alvarado court reasoned:

To determine the content of the plea bargain we must consider what the defendant might have reasonably interpreted it to be. (Citation omitted.) Here, Alvarado might have reasonably believed that the prosecutor's promise not to seek the death penalty included a commitment not to make any damning or even potentially damning statements at the time of sentencing. As so interpreted, that promise was clearly violated.

Id. at 529. In the case before us, Olausen could not have possibly interpreted the District Attorney's promise not to affirmatively seek the death penalty as including a commitment not to argue aggravating circumstances. Throughout the canvass, Olausen was repeatedly informed that, even though the District Attorney was not affirmatively...