HENRY DEUTSCHER, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 10434
SUPREME COURT OF NEVADA
October 18, 1979
601 P.2d 407 | 95 Nev. 669
Richard Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and Ray Jeffers, Deputy District Attorney, Clark County, for Respondent.
By the Court, MANOUKIAN, J.:
This appeal is from felony convictions of first degree murder,
Appellant proffers several bases for reversal contending that (1) Nevada‘s capital punishment statutes are constitutionally infirm; (2) the trial court erred in instructing the jury that it could consider an aggravating circumstance absent respondent‘s failure to give statutory notice of the circumstance prior to the penalty hearing; (3) his pre-arraignment inculpatory statements made during detention were improperly admitted; (4) probable cause for the arrest was lacking making inadmissible evidence obtained incident thereto; (5) his fifth amendment right to silence was violated due to witness and prosecutorial misconduct; (6) prejudicial privileged and hearsay evidence should not have been admitted; (7) the trial court erred in its refusal to order a police officer to disclose his home address; (8) the evidence is insufficient to support the sentencing jury‘s findings of aggravating circumstances as required by
On the morning of August 16, 1977, the body of Darlene Joyce Miller, 37, was discovered on a desert road off North Nellis Boulevard behind Weaver Construction Company in Las Vegas. Her white 1976 Cadillac with Texas license plates was parked nearby. She was nude except for a blouse and bra that had been pulled open around her shoulders. Her legs were spread apart and there was smeared blood between her upper thighs. She had superficial lacerations and abrasions on her breasts and abdomen which experts testified represented bite marks. Her neck, face and head were severely bruised, bearing extensive abrasive-type injuries. Her head had a large depression skull fracture two and three-fourths inches in diameter caused by a crushing or blunt type object. A trail of dripped blood led from the crime scene to nearby North Nellis Boulevard, an arterial highway.
Sergeant Samolovitch of the Las Vegas Metropolitan Police Department, the officer in charge of the investigation, was informed by another officer that the victim‘s car had been parked the previous night approximately one-half mile away in front of the Wagon Wheel Bar on Nellis Boulevard. Upon questioning the bar owner, it was determined that the appellant had been seen with the victim in her automobile, leaving the bar at 2:00 a.m. the morning of August 16, 1977. Appellant was also seen in the vicinity of the bar by his former employer at approximately 6:00 a.m. The victim‘s body was discovered that morning at 6:30 a.m.
Appellant resided at a motel, also on Nellis Boulevard, which was located approximately one-half mile from both the bar and crime scene. After speaking with appellant‘s wife at the motel, the investigators went to Deutscher‘s place of employment to question him. Arriving at about 10:00 a.m., Sergeant Samolovitch noticed a ragged, fresh cut on Deutscher‘s hand and observed that he appeared nervous, cold and clammy. Sergeant Samolovitch advised appellant that he was under arrest for murder and gave him the Miranda warning.1
Deutscher was taken to the police station where he was again advised of his rights and signed a rights advisory card. Appellant was then questioned by the police; he admitted being in the victim‘s car, but initially denied any responsibility for the murder. When Deutscher was asked if he had any money he took out his wallet and removed two fifty dollar bills. The two bills
After Deutscher was transported to the Clark County Jail on August 16, he was fingerprinted and also consented in writing to a search in the form of dental impressions. Blood samples and fingernail scrapings were also obtained from him.
During a brief interrogation on August 18, 1977, Deutscher admitted killing the victim, but because he wanted to see his wife before making a full statement, the interview was interrupted and his wife was called. After speaking with his wife, a video taped statement was taken that afternoon with Deutscher, his wife, and several officers present. In this statement, appellant admitted having beaten the victim, describing the crimes in detail.
Appellant had been in custody from 10:00 a.m. Monday, August 16, the date of the offense, until 4:00 p.m. Wednesday, August 18, when the incriminating statement was given. He was arraigned before a magistrate on August 22.
Pertinent evidence at trial included Deutscher‘s fingerprints in the victim‘s car, blood of the victim‘s blood type under the appellant‘s fingernails, blood at the crime scene of both the victim‘s and Deutscher‘s blood type, and identification of the bite marks on the victim as being made by the appellant‘s teeth. The victim‘s husband testified that his wife had been carrying two fifty dollar bills, along with other smaller bills in her purse. The two larger bills were not in her purse when the body was found. The appellant‘s clothes and boots were located by police as a result of his confession, and the size, shape and sole pattern of the boots were consistent with those impressions taken at the crime scene. Deutscher‘s pants, undershorts, and shirt were stained with human blood.
A forensic pathologist testified as to the extent of injuries which the victim incurred, finding no evidence of recent sexual intercourse. The expert did testify that the victim had been strangled and that all the injuries were inflicted while the victim was still alive with the blow causing the two and three-fourths inch diameter hole to the left side of her head being the last and probable “lethal” injury.
Prior to trial, the state served upon the appellant a Notice of Intent to Seek Death Penalty, setting forth certain aggravating circumstances. These aggravating circumstances did not include the circumstance that the appellant had committed murder in an attempt to commit a sexual assault.
The jury found the appellant guilty of first degree murder and robbery. A penalty hearing was held and the jury was
The jury concluded that (1) the murder was committed by appellant who was previously convicted of a felony involving the use or threat of violence to the person of another;3 (2) the murder was committed while the appellant was engaged in the commission of or an attempt to commit any forcible sexual assault; and (3) the murder involved torture, depravity of mind, or the mutilation of the victim. No mitigating circumstances were designated, the jury simply determining that they did not outweigh the aggravating circumstances.4
1. The Death Penalty.
Appellant contends that the death penalty statute is unconstitutionally vague and therefore violative of due process and equal protection as the sentencing procedure permits juries untrammeled discretion in imposing death sentences. See Furman v. Georgia, 408 U.S. 238 (1972).
Nevada‘s capital punishment law was amended in 1977 with inconsequential revision from the death penalty statutes in Georgia and Florida. Georgia and Florida statutes survived constitutional scrutiny by the United States Supreme Court and satisfied the constitutional deficiencies enunciated in Furman. Gregg v. Georgia, 428 U.S. 153, 196-207 (1976); Proffitt v. Florida, 428 U.S. 242, 251-53 (1976).
Confronted by an eighth amendment challenge, we have recently held that Nevada‘s death penalty statutes (
The appellant further contends that the death penalty statute is impermissibly vague because an aggravating circumstance for imposition of the death penalty is that “[t]he murder involved torture, depravity of the mind, or mutilation of the victim.”
The appellant contends that the respondent should have formally notified him, under the provisions of
We believe that the purpose of the statute is to provide the accused notice and to insure due process so he can meet any new evidence which may be presented during the penalty hearing. Here, evidence was admitted at trial which showed the aggravated nature of the crime committed. The appellant was thus afforded ample notice regarding elements and proof of the offense itself when these were offered during the guilt phase. Eberheart v. State, 206 S.E.2d 12, 17 (Ga. 1974). The notice provisions of the statute were plainly not offended by the admission of the challenged evidence relating to the aggravating circumstance as the sexual assault was germane to the proof of the crime itself. Furthermore, an instruction regarding sexual assault was given at trial. The accused need not be independently informed of the intended use of this factor during the sentencing hearing. Hooks v. State, 210 S.E.2d 668, 670 (Ga. 1974); Eberheart v. State, 206 S.E.2d at 17;
3. The Inculpatory Statements Made During Pre-Arraignment Detention.
Appellant next contends that his incriminating statements given to police are inadmissible because, although they were given after his arrest, they preceded his arraignment. Our statutory scheme has long provided that an accused must be taken before a magistrate “without unnecessary delay.”
In McNabb v. United States, 318 U.S. 332 (1942), and Mallory v. United States, 354 U.S. 449 (1957), confessions which resulted from an unreasonable pre-arraignment detention were excluded because the confessions resulted from a flagrant disregard of federal procedure. Although we are not bound by these decisions which deal with federal criminal procedure, it is clear that they were intended to avoid the adhesive practices which would spawn from administrative detention without judicial examination. Culombe v. Connecticut, 367 U.S. 568, 584-85 (1960). It has been held, however, that these fears are not valid when an accused, as here, makes a voluntary confession after being fully informed of his Miranda rights. Appellant was informed of his Miranda rights on several occasions prior to his confession, signed a waiver card and acknowledged that he fully understood the import of the waiver. Moreover, the Miranda warning was amplified by the L.V.M.P.D. detectives as follows:
I advised Mr. Deutscher that he had the right to remain silent; that anything he said could and would be used against him in a court of law; that he had a right to an attorney; if he could not afford one, one would be provided for him free of charge before any questioning.
I also advised him that if he agreed to talk to us, at any
time during that interview he wished to revoke those rights, he had a right also to do that. Asked him if he understood what I was telling him, that he understood these rights, and he indicated in the affirmative.
Additionally, the several interrogations were of reasonable duration, conducted in a reasonable atmosphere and no irregularities were discernible from the record.
We subscribe to the rule of law which provides that when an accused voluntarily waives his right to silence and his right to counsel, he concurrently waives his right to be seasonably arraigned. United States v. Indian Boy X, 565 F.2d 585, 591 (9th Cir. 1977), cert. denied, 439 U.S. 841 (1978); United States v. Woods, 468 F.2d 1024, 1026 (9th Cir. 1972), cert. denied, 409 U.S. 1045 (1972); Pettyjohn v. United States, 419 F.2d 651, 655-56 (D.C. Cir. 1969), cert. denied, 397 U.S. 1058 (1970). The reason for this rule is that the primary purpose of an arraignment is to inform the defendant of his rights. But a delay in arraignment is not prejudicial when a defendant has already been advised of his rights, was promptly so advised, and voluntarily waived those rights. See Pettyjohn v. United States, 419 F.2d at 655-56. This is particularly so when the delay is not flagrant and the record is silent relative to any other irregularities which go to the issue of voluntariness. Cf. McNabb v. United States, 318 U.S. at 334-38 (in which defendants in a custodial setting, were interrogated for periods of time in discomfort and without counsel and advice as to the right to counsel; confessions held inadmissible).
Because the voluntary nature of a confession is the primary test for admissibility, State v. Boudreau, 67 Nev. 36, 46, 214 P.2d 135, 141 (1950), we now focus on whether the pre-arraignment delay affected the voluntariness of appellant‘s confession. The appellant only feebly challenges voluntariness here. In reviewing the particular circumstances gleaned from the record surrounding the statements and resulting confession, including the education, experience and conduct of the accused, as well as the credibility of the police officers, it is patent that the waivers were voluntary. The subsequent delay in arraignment did not retroactively result in prejudice so that appellant‘s rights were violated. Morgan v. Sheriff, 92 Nev. 544, 546, 554 P.2d 733, 735 (1976); Brown v. Justice‘s Court, 83 Nev. 272, 276, 428 P.2d 376, 378 (1967).
The challenge by appellant of the existence of probable cause for his arrest is also without merit. Probable cause to arrest exists where the facts and circumstances within the officer‘s knowledge at the time of arrest would warrant a prudent person in entertaining an honest and strong suspicion that the person arrested has committed a crime. Brinegar v. United States, 338 U.S. 160, 175-76 (1949); Gordon v. State, 83 Nev. 177, 179, 426 P.2d 424, 425 (1967); Schnepp v. State, 82 Nev. 257, 260, 415 P.2d 619, 621 (1966). The presence or absence of probable cause is determined in light of all the circumstances and can include conduct of the defendant in the presence of the police officers. A Minor v. State, 91 Nev. 456, 462, 537 P.2d 477, 481 (1975); Schnepp v. State, 82 Nev. at 260, 415 P.2d at 621.
Sergeant Samolovitch testified as to the factual basis upon which his decision to arrest was made: (1) The appellant was seen leaving the Wagon Wheel Bar with the victim the morning of the crime in a car found close to the scene; (2) He knew Deutscher resided at a motel which was close to the bar and the crime scene; (3) A trail of dripped blood led away from the crime scene to Nellis Boulevard; (4) He observed a fresh cut on appellant‘s finger when he approached him at his place of employment the morning of the crime; and (5) The appellant appeared very nervous, cold, and clammy when he was approached by the officer. It is arguable that each of these circumstances, when taken by themselves, is consistent with innocence. But here, the cumulative suspicion produced by the totality of the circumstances warranted the finding by the lower court of probable cause to arrest. A Minor v. State, 91 Nev. at 462, 537 P.2d at 480; Schnepp v. State, 82 Nev. at 260-61, 415 P.2d at 621.
5. The Defendant‘s Fifth Amendment Right to Remain Silent.
Appellant claims there were two occasions during the trial where his fifth amendment right to remain silent was violated. He asserts the first error occurred during Detective Levos’ testimony concerning the red-stained fifty dollar bills found in appellant‘s possession upon which the appellant refused to comment. Following timely objection, the jury was admonished to disregard the testimony.
The second comment occurred during the prosecutor‘s final argument when he said, “[The defendant] testified he then—excuse me. He stated during the video interview ....” This vague reference to the appellant‘s confession cannot be construed as a direct reference to his failure to testify. Layton v. State, 87 Nev. at 600, 491 P.2d at 47. The established test is whether the language was “manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to [respond].” Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). This non-deliberate, self-corrected statement by the prosecutor does not constitute a sufficient comment to mandate reversal. See Sanchez v. Heggie, 531 F.2d 964 (10th Cir. 1976).
6. The Hearsay and Privileged Statements.
Appellant contends that inadmissible evidence was admitted during the jury‘s hearing of a portion of the video taped statement. The challenged testimony consists of remarks by Detective Levos during the video interrogation regarding comments appellant‘s wife made to police officers.9 The appellant asserts that the statements are inadmissible because they are privileged spousal communications, as well as hearsay.
Appellant contends that the officer is placing testimony before the jury indirectly when the wife could not testify against her husband. The spousal privilege,10 however, is intended to protect confidential communications between spouses, not communications between a spouse and third parties. Foss v. State, 92 Nev. 163, 167-68, 547 P.2d 688, 691 (1976). The privilege cannot be applied to protect communications disclosed, as here, by strangers. State v. Lindley, 502 P.2d 390, 392 (Or.App. 1972).
Hearsay evidence is evidence of a statement made other than by a witness while testifying at the hearing, which is offered to
Traditionally, hearsay evidence has been excluded because it is not subject to the usual tests to show the credibility of the declarant. Lacking is cross-examination to ascertain a declarant‘s perception, memory and truthfulness. Moore v. United States, 429 U.S. 20, 21-22 (1976) (per curiam); Donnelly v. United States, 228 U.S. 243, 273 (1913). The same problems are present here as to two declarants. First, it is the officer on a video tape making a statement as to what he was told by appellant‘s wife. Second, the wife has allegedly made certain statements as to appellant‘s whereabouts on the night of the murder. Appellant‘s wife was not subject to cross-examination to discover if she indeed said this or as to her memory. Although the officer could have been questioned as to the accuracy of his recollection, it is apparent he was basing his knowledge of appellant‘s whereabouts upon what someone else had informed him. This is inadmissible hearsay. Toti Contracting Co. v. A. J. Orlando Contracting Co., 181 A.2d 594, 596 (Conn. 1962). Indeed, both of these statements were hearsay. See Archibald v. State, 77 Nev. 301, 307, 362 P.2d 721, 723-24 (1961); Cf. Alexander v. State, 84 Nev. 737, 449 P.2d 153 (1968) (defendant‘s testimony as to what a friend had said was hearsay). Together, these statements constituted multiple hearsay.
We perceive no hearsay exceptions to what appellant‘s wife said, let alone what the officer has stated. See
We must now determine whether the admission of these hearsay statements was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 21-24 (1967); Drummond v. State, 86 Nev. 4, 8-9, 462 P.2d 1012, 1015 (1970);
All of this is extremely convincing even without regard to appellant‘s confession or the statement of appellant‘s wife.11 While these statements by the wife should have been excluded, we hold that the error was harmless beyond a reasonable doubt as there was other undisputed inculpatory evidence concerning appellant‘s whereabouts on the night in question, cf. State v. Rover, 13 Nev. 17, 24-25 (1878) (Beatty, J., concurring) (admission of evidence not harmful where other evidence already established fact), and overwhelming evidence of his guilt. Hendee v. State, 92 Nev. 669, 670, 557 P.2d 275, 276 (1976) (per curiam); Drummond v. State, 86 Nev. 4, 8-9, 462 P.2d 1012, 1015 (1970).
7. The Inquiry into the Detective‘s Residence.
On cross-examination appellant attempted to ascertain the residential address of Detective Lee. Appellant contends that
Moreover, the witness gave his true name and occupation, and fully described his professional involvement with the appellant. The detective was also thoroughly cross-examined by defense counsel who failed to make a showing how disclosure of the officer‘s address would make his cross-examination any more meaningful. There is no error.
8. Sufficiency of the Evidence to Support the Death Penalty.
We are required to review imposition of the death penalty pursuant to
Lastly, appellant contends that “the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor.”
9. Penalty Hearing Jurisdiction.
Appellant next contends that the trial court was without jurisdiction to conduct the penalty hearing because Chapter 598 of the 1977 statutory amendments, 1977 Nev. Stats. ch. 598, at 1626, repealed the provisions of Chapter 585 of the same amendments, 1977 Nev. Stats. ch. 585, at 1541 (amending
10. Statutory Terms.
Finally, appellant apparently contends that the trial court committed reversible error when it instructed the jury, using the term “rape” instead of the new phrase “sexual assault.” On this record, we perceive no error. State v. Murray, 67 Nev. 131, 147-48, 215 P.2d 265, 273-74 (1950). Although the court used the language of the statute before its amendment, NRS
We affirm the convictions of first degree murder and robbery, together with the judgments and sentences of death plus fifteen years.
MOWBRAY, C. J., and THOMPSON, J., concur.
BATJER, J., concurring:
I concur in the result.
GUNDERSON, J., concurring:
I also concur in the result only.
Notes
The essential elements of murder by means of torture are (1) the act or acts which caused the death must involve a high degree of probability of death, and (2) the defendant must commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, persuasion or for any other sadistic purpose.
The crime of murder by torture does not necessarily require any proof that the defendant intended to kill the deceased nor does it necessarily require any proof that the deceased suffered pain.
Instruction No. 22:
The condition of mind described as depravity of mind is characterized by an inherent deficiency of moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for human dignity and which is indifferent to human life. It is a state of mind outrageously, wantonly vile, horrible or inhuman.
Instruction No. 23:
You are instructed that the term “mutilate” means to cut off or permanently destroy a limb or essential part of the body, or to cut off or alter radically so as to make imperfect.
The state may introduce evidence of additional aggravating circumstances as set forth in
It is noteworthy that by the time of the trial of this proceeding, Clark County had established the position of intake officer who has the responsibility of assisting an accused detainee by advising him of his various constitutional and legal rights. This includes information as to bail and “anything that would help them to appear in court, and they give them the date of their arraignment when they‘re to appear in Justice Court, and they fill out this sheet which helps determine if they need an attorney or public defender ....”
“Q. Did you ask him how the stains got on the two fifty dollar bills?
“A. I did.
“Q. What did you ask him in that regard?
“A. I asked him—I said, ‘Then where did the stains from—on the money come from?’
“He didn‘t answer me.”
Defense counsel made an objection, following which the reference to defendant‘s silence was stricken and the jury admonished. It should be noted, however, that the appellant previously had stated he waived his rights and was willing to give a statement to the police. He had given a statement, responded that he did have money and attempted to explain how he got it. When Detective Levos asked about the stains, the appellant did not answer. Detective Levos’ comment at trial was in passing and was a description of all the circumstances. The comment by the police officer here was also not emphasized by the prosecutor.
Henry, I interviewed your wife on the morning of the 16th, and I don‘t think she was lying to me, but she told me that she hadn‘t seen you since about 9:30 or 9:45 the night before, when you came home from your mother‘s. You got a ride home from your mother‘s, and she went to bed and you went out. She told me that she did not see you since.
(a) A husband cannot be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent.
(b) Neither a husband nor a wife can be examined, during the marriage or afterwards, without the consent of the other, as to any communication made by one to the other during the marriage.