Zessman v. State, 9067

CourtSupreme Court of Nevada
Citation94 Nev. 28,573 P.2d 1174
Docket NumberNo. 9067,9067
PartiesEric William ZESSMAN and Mary Evelina Zessman, Appellants, v. The STATE of Nevada, Respondent.
Decision Date25 January 1978


Following a trial by jury, appellants, both approximately twenty years of age at time of sentencing, were found guilty of first degree murder (NRS 200.010; NRS 200.030), in the death of their six-month old son Frederick 1. Thereafter, the court sentenced both appellants to life imprisonment without possibility of parole. Appellants appeal from these judgments.

Appellants assign the following as error: (1) the trial court's refusal to grant Mary Zessman's motion for continuance; (2) insufficiency of the evidence to support the verdicts; and (3) admission into evidence of color photographs of the deceased, over defense counsel's objection. We are constrained to agree with appellants' first contention.

On January 12, 1976, appellants, represented by counsel, were arraigned in district court. The indictment recited:

That the above-named Defendants did, willfully and unlawfully with malice aforethought, expressed or implied, murder, FREDERICK SAMUEL ZESSMAN, an infant human being, by failing to provide said infant with food sufficient to sustain his life, thereby causing his death by starvation and dehydration, on or about November 9, 1975, all of which occurred in the west parking lot of the Carson City Nugget near Curry Street between Robinson Street and Spear Street, Carson City, Nevada.

Preceding the entry of pleas, the following colloquy occurred between the trial judge and the deputy district attorney 2. Following the referenced discussion, the court proceeded to inform the appellants that the maximum penalty to which they would be subject would be a term of not less than five years nor more than life, consistent with a second degree murder charge. Appellants both entered not guilty pleas to the indictment. The court then set the case for trial by jury to commence May 11, 1976.

During the morning of May 11, 1976, just prior to the commencement of the trial, the trial judge again arraigned appellants, stating,

At that time (January 12, 1976), I advised you that in my opinion this indictment carried only a maximum charge of second degree murder, but further research has shown me it does also include the charge of first degree murder. 3

Counsel for appellants then made a motion for continuance claiming additional time was necessary to prepare for trial on the new element of premeditation included in first degree murder. The record is silent as to whether appellants were informed of the element of premeditation prior to the motion for continuance. The court, determining that the defense would not be prejudiced, denied the motion. It is now claimed that because of the surprise attendant to the second arraignment and the denial of the request for continuance, they have been denied their constitutional rights to effective representation and due process 4.

The matter of continuance is traditionally within the discretion of the trial judge and not every denial of a request for additional time violates due process. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955). Each case must turn on its own circumstances, with emphasis upon the reasons presented to the trial judge at the time the request is made. See, Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957). A myopic insistance upon expediency in the face of a justifiable request for delay can make the right to defend with counsel of little value. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). Accuseds have the right to be informed of the nature and cause of the accusation against them and must be afforded a reasonable opportunity to obtain witnesses in their favor. Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948).

The trial judge's misinformation and belated correction effectively deprived appellants of any notice of first degree murder charges prior to trial, thus denial of the motion for a continuance cannot be said to be error which is "harmless beyond a reasonable doubt," Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), since appellants were brought to trial without notice that evidence would be considered on the issue of premeditation. Here, there was a constitutionally inadequate time to prepare a defense. Cf. Ungar, supra; United States v. Anderson, 165 U.S.App.D.C. 390, 509 F.2d 312 (1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427.

What transpired here is analogous to an amendment of substance to an information, which has been held to carry with it a corresponding obligation to allow the defense an adequate time in which to prepare. In re Newburn, 53 Cal.2d 786, 3 Cal.Rptr. 364, 350 P.2d 116 (Cal.1960). In accord, Ex Parte Groesbeck, 77 Nev. 412, 365 P.2d 491 (1961). The remedy for prejudicial surprise resulting in a defendant's inability to present his defense adequately is a continuance, and where, as here, a motion for continuance is made in good faith and not for delay, the motion should be granted. O'Brien v. State, 88 Nev. 488, 500 P.2d 693 (1972); Garden v. State, 73 Nev. 312, 318 P.2d 652 (1957); cf. Polito, supra.

Although this conclusion ordinarily would require reversal and remand for new trial, here it is unnecessary to do so 5. Because of our unique facts, we need not decide whether the record would justify a charge of first degree murder. Since the district attorney desires to abandon those charges rather than to again prosecute appellants for open murder, we need consider only whether the evidence supports charges of second degree murder of which appellants were duly informed. We hold that it does.

The record reveals that although the deceased infant Frederick Zessman suffered severe medical problems following his premature birth resulting in hospitalization in Colorado for several months, he became strong enough to be released into his parents' care. When the child was released, and during out-patient treatment which followed, the appellants were carefully instructed about the special care he needed. This included feedings on a demand basis (every two to three hours), vitamin supplements, and medication. Appellants expressed some dissatisfaction with the feeding schedule and insisted on feeding the child every five hours. During his out-patient care, Frederick gained weight but at a much slower rate than when in the hospital. His doctor therefore continued to urge appellants to feed him more often.

In October, appellants left Colorado and came to Carson City, Nevada, living on an alternate day basis in their vehicle and rented motel rooms. On November 9, 1975, appellants' son was found dead on the front seat of his parents' automobile, nude and scantily covered, in cold temperatures.

The primary cause of death was listed as inanition and dehydration. Frederick's autopsy revealed he only weighed five pounds and was completely dehydrated. It further revealed that his stomach was empty and that "both the small and large bowels were almost empty, containing much less than the usual amount of fecal material and food stuff." He suffered wasting of muscle, a complete lack of subcutaneous fat, and lacerations were visible about the face. In addition, the child suffered from a severe case of rickets, a condition almost alien in the contemporary United States because of the presence of vitamin D in all milks and baby formulas. Furthermore, x-rays revealed multiple fractures of a substantial number of Frederick's bones, including the left and right femurs and several ribs. Expert medical...

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22 cases
  • Higgs v. Neven
    • United States
    • U.S. District Court — District of Nevada
    • October 15, 2013
    ...much weight is given to the reasons offered to the trial judge at the time the request for a continuance is made. Zessman v. State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978). This court has held that generally, a denial of a motion to continue is an abuse of discretion if it leaves the def......
  • Bubak v. State
    • United States
    • Nevada Court of Appeals
    • February 8, 2017
    ...the motion for a continuance and took no steps to alleviate the prejudice resulting from the late disclosure. See Zessman v. State, 94 Nev. 28, 32, 573 P.2d 1174, 1177 (1978) ("The remedy for prejudicial surprise resulting in a defendant's inability to present his defense adequately is a co......
  • People v. Steinberg
    • United States
    • New York Supreme Court — Appellate Division
    • August 8, 1991
    ...and there was a deliberate intent to cause death."]; see, Lewis v. State, 255 Ga. 101, 335 S.E.2d 560 [1985]; Zessman v. State, 94 Nev. 28, 573 P.2d 1174, 1178 [1978]; see, also, State v. Evangelista, 319 N.C. 152, 353 S.E.2d 375, 379-81 In that regard, De Leon v. State, 684 S.W.2d 774 [Tex......
  • Higgs v. State
    • United States
    • Nevada Supreme Court
    • January 14, 2010
    ...much weight is given to the reasons offered to the trial judge at the time the request for a continuance is made. Zessman v. State, 94 Nev. 28, 31, 573 P.2d 1174, 1177 (1978). This court has held that generally, a denial of a motion to continue is an abuse of discretion if it leaves the def......
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