Woods v. State

• Citation: 101 Nev. 128,696 P.2d 464
• Decision Date: 05 March 1985
• Docket Number: No. 13318,13318
• Parties: Cathy WOODS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 464

696 P.2d 464

101 Nev. 128

Cathy WOODS, Appellant, v. The STATE of Nevada, Respondent.

No. 13318.

Supreme Court of Nevada.

March 5, 1985.

Rehearing Denied May 8, 1985.

David Parraguirre, Washoe County Public Defender, Jane G. McKenna, Michael B. McDonald, Deputy Public Defenders, Reno, for appellant.

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

OPINION

GUNDERSON, Justice:

Appellant Cathy Woods was convicted of first-degree murder in the slaying of Michelle Mitchell and was sentenced to life imprisonment without the possibility of parole. Because we consider that certain evidentiary rulings of the district court precluded appellant from receiving a fair trial, we reverse her conviction.

The record reflects the following facts. On the evening of February 24, 1976, Michelle Mitchell's car broke down near the campus of the University of Nevada, Reno, and she telephoned her mother to ask for a ride home. Mitchell's mother left immediately but could not find her daughter. Mitchell's dead body was discovered a few hours later in the garage of a nearby house. Her hands were bound with twine and her throat had been slashed.

For nearly three years no charges were brought in the Mitchell killing. In March of 1979, the Reno Police Department received the information that a mental patient at the Louisiana State University Medical Center at Shreveport, Louisiana, had told hospital staff that some years ago in Reno she had killed a girl named Michelle. The patient was appellant Cathy Woods, who had been committed to the hospital in February of 1979. Appellant told the hospital staff and subsequently Lieutenant Dennison of the Reno Police Department that she had offered to help the girl fix her car, had taken her to a garage on the pretext of getting some tools, had made a sexual proposal to her, and when rebuffed, had cut her throat. Appellant was subsequently brought to Reno and tried.

Appellant entered a plea of not guilty. The defense theory was that appellant's confession was the product of her mental illness: Mitchell had actually been killed by Tony Lima, the boyfriend of Raye Wood, to cover up the contract murder of Peggy Davis by Raye Wood and Marjorie Carter. The two women had beaten Davis to death with a hammer only a few days before Mitchell was killed. ¹ Raye Wood's former jailmate, Kathy Murnighan, was ready to testify that Raye Wood had told her that she and Lima had discussed killing a woman to cover up the Davis killing by making it appear as though both murders were the work of a homicidal maniac. One night Lima told Raye Wood that he had found a girl whose car had broken down and had slashed her throat. Raye Wood and Lima together disposed of the murder weapon.

Lima was called during the offer of proof and denied having killed Mitchell. Raye Wood invoked her fifth amendment privilege against self-incrimination and refused to testify unless she was granted immunity. The State declined to seek immunity on her behalf, and Raye Wood was ruled to be unavailable. Defense counsel then sought to introduce Murnighan's testimony under NRS 51.345. The district court refused to allow Murnighan to testify because it did not consider her testimony sufficiently trustworthy to be admissible under the statute.

Initially, we note that Murnighan's proffered testimony included not only Raye Wood's statements about her own activities but also Raye Wood's narration of Lima's statements to her. Lima's statements to Raye Wood present no problem under the hearsay rule. Lima testified at the offer of proof and denied having killed Mitchell. Had he been permitted to testify at trial, his statements to Raye Wood would have been admissible as prior inconsistent statements. NRS 51.035(2)(a). However, Murnighan could not testify about any of Raye Wood's statements to her--including Raye Wood's narration of Lima's statements--unless the district court admitted her testimony under NRS 51.345. We turn then to consider the admissibility of Murnighan's testimony under the statute.

NRS 51.345 provides in pertinent part:

1. A statement which at the time of its making:

* * *

(b) So far tended to subject [the declarant] to civil or criminal liability;

* * *

that a reasonable man in his position would not have made the statement unless he believed it to be true is not inadmissible under the hearsay rule if the declarant is unavailable as a witness. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Under the statute, a statement against penal interest is admissible if the declarant is unavailable at the time of the trial and if the statement was against the declarant's penal interest at the time when made. If the statement is offered to exculpate an accused, however, an additional requirement exists: corroborating circumstances must clearly indicate that the statement is trustworthy.

An examination of the record discloses that Murnighan's proffered testimony complied with all three requirements. Raye Wood, the declarant, invoked her fifth amendment privilege and thus became unavailable within the meaning of the Evidence Code. NRS 51.055(1)(a). Raye Wood's statements were clearly against her penal interest at the time when made. By admitting that she had helped dispose of the evidence of the crime, Raye Wood exposed herself to criminal liability as an accessory after the fact. NRS 195.030(1). Since Raye Wood and Lima had discussed killing a randomly chosen woman to cover up the Davis murder, Raye Wood might also have exposed herself to criminal liability for conspiracy to commit murder. NRS 199.480(1).

It was the requirement of trustworthiness, however, which preoccupied the court below. In order for a statement to be trustworthy evidence under the statute, the statement must actually have been made by the declarant and must afford a basis for believing the truth of the matter asserted. The legislative history of Rule 804(b)(3) of the Federal Rules of Evidence, on which NRS 51.345 is based, indicates that its draftsmen were particularly concerned with the possibility of fabrication. United States v. Bagley, 537 F.2d 162, 167 (5th Cir.1976) and the legislative history cited therein. "[O]ne senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents." Notes of Advisory Committee on Proposed Rules, Fed.Rules Evid.Rule 804(b)(3), 28 U.S.C.A. at 697.

In determining whether the declarant in fact made the proffered statement, the trial court may consider the credibility of the witness. United States v. Bagley, supra; Laumer v. United States, 409 A.2d 190 (D.C.1979); contra United States v. Atkins, 558 F.2d 133 (3rd Cir.1977) (inquiry into trustworthiness of the declarant, not of the witness). It has been noted that a test for admissibility of hearsay statements based on the credibility of the testifying witness is unrelated to the purpose of the general rule against hearsay. United States v. Satterfield, 572 F.2d 687, 691-692 (9th Cir.1978). This observation notwithstanding, the Satterfield court acknowledged that the legislative history of the rule indicates that an inquiry into whether the statements against penal interest were actually made is proper when the statements are offered to exculpate an accused and that the credibility of the witness is one of the factors the court should consider. Id.

The district court's primary reason for excluding Murnighan's testimony was that it did not consider her to be a credible witness. The trial judge made this determination in spite of the fact that he had presided over Raye Wood's trial at which Murnighan, as witness for the prosecution, testified about her conversations with Raye Wood. Raye Wood's statements about the Davis slaying and her statements about the Mitchell slaying were interwoven in the same series of conversations in the same surroundings during the same period of time. It is absurd to contend that Murnighan was credible when she related Raye Wood's statements about the Davis slaying but not credible when she related Raye Wood's statements about the Mitchell slaying. Cf. United States v. Benveniste, 564 F.2d 335 (9th Cir.1977) (when evidence of accusatory statements admitted, error to exclude at same trial evidence of exculpatory statements made by same declarant regarding same subject matter).

We recognize that Murnighan's testimony at Raye Wood's trial was admitted under a different hearsay exception and that the Evidence Code did not require, or indeed authorize, the district court to inquire into Murnighan's credibility prior to letting her testify. However, Murnighan either was or was not a credible witness as to her conversations with Raye Wood. The failings which were mentioned by the district court--her emotional instability, her criminal record--were equally present when she testified at Raye Wood's trial. If they were not fatal to her credibility at that trial, they should not have precluded her from telling her story to the jury at appellant's trial. The State demonstrated its belief that Murnighan was a credible witness when it put her on the stand in Raye Wood's trial. Indeed, the State demonstrated that belief when it employed Murnighan as an informant and facilitated her access to Raye Wood in prison so that Murnighan could obtain information from her. During that period of time Murnighan provided information about two murders: police officers testified that most of the verifiable information had been proved accurate. The State cannot be allowed to use Murnighan as a prosecution witness to obtain a conviction on one murder and...