*1
241-
(Ore.
1952); Gano
Strickland,
(Miss.
So.2d
1951). See
Ehlert,
also
LeDeit
Viewing the evidence most favorably appellant, she has proved “sufficient case” to establish a easement prescriptive appurtenant 41(b). her lot. NRCP The judgment dis- trict court is reversed and the case is remanded for further pro- ceedings to afford an respondents opportunity to contravene the prescriptive easement. Thomp- J., C. Gunderson, Zenoff, Mowbray,
son, JJ., concur. JOHNSTONE, ROBERT GORDON v. THE Appellant, Respondent. NEVADA, STATE OF
No. 8163 April Sutton,
Raymond E. for Vegas, Appellant. List, Holt, General, George Carson Attorney City; Rukstele, A. District Dan Seaton and Rimantas Attorney, District Clark for Deputy Attorneys, County, Respondent.
242'
OPINION
Court, Gunderson,
theBy
C. J.:
of murdering
Johnstone stands convicted
Appellant
Carone,
tourists stabbed to death December
Eugene Mary
18, 1971,
Motel,
Ho
at
in
5212 of the Westward
room
have
Lloyd
Claude Theriault and
Paulette
Vegas, Nevada.
to life
heretofore been
for the Carone
sentenced
tried
and this court has
without
imprisonment
possibility
parole,
State,
Theriault v.
92
affirmed their convictions on appeal.
State,
185,
92 Nev.
(1976);
Paulette
Nev.
547 P.2d
Johnstone,
71,
(1976). Here
whose
appellant
P.2d
only
is inferable
from later posses-
connection with the crimes
cards,
from criminal association with
sion Carone
credit
Paulette,
should be
contends his conviction
Theriault and
(1) refused an instruction
reversed because the district court:
evidence; (2)
concerning circumstantial
proffered
appellant
(3)
alien;
refused
nonresident
lacked
jurisdiction
try
an inves-
had made to
to admit
that absent witnesses
have inferred
detective,
might
the jury
from which
tigating
in the murders.
did not participate
appellant
repelled by
first contention is
this court’s deci-
Appellant’s
95,
(1976).
State,
Bails
92 Nev.
P.2d
sion in
States,
(1954).
v. United
Circumstantial evidence Theriault that, strong. day following It appears Carone murders is Vegas, in Las crime, rings Mrs. Carone’s pawned Paulette together Theriault fled to California which Paulette and after in the were found fingerprints car. Theriault’s in the victims’ Carones’ room. Paulette’s, Theriault’s fingerprints, were found in the victims’ abandoned car. Theriault and Paulette were apprehended together car, at San in Diego, another stolen a knife possession of with a sheath. The blood blood-stained on the sheath A, and on Paulette’s leather jacket type was that of Mr. and Mrs. Carone. Paulette and both Theriault have O blood. type trial,
At appellant unsuccessfully sought introduce state- ments Detective Lee elicited from a couple married staying room Lee, 5228 at the Westward Ho Motel. According said at couple approximately p.m., 9:30 December walk, they room, decided to take their for a dog left their downstairs. proceeded They dirty observed two appearing collars, white males with hair down their one possibly Mexican, standing lot. The did not parking like their and turned to back to room. The two go their appearance, men unkempt asked directions to room 1214. The thereupon husband informed them that at the contain- building series, ing 5200 room and that room 1214 was in another building. The then retreated to their room and locked *3 to testify the door. Defense counsel could not locate the trial, at and thereafter to show their attempted unsuccessfully Lee’s through testimony. he, testified Paulette and Theriault in
Appellant left Canada Falls, which Mustang stolen Ford abandoned in they Idaho stole a where Theriault 1969 Ford. The trio in arrived 17, 1971, December and the Vegas, eventually into checked Motel, Ho Room 1214. Westward On the of Decem- evening 1971, town, 18, ber drove around then they returned lot, parted company. forty motel and Some or parking thirty 1214, later, he minutes returned to room where appellant Theriault, both over found Paulette and with blood smeared Eugene their clothes. Theriault had Carone’s credit cards in his gave morning, some of which he Next appellant. possession, Paulette and left motel in victims’ car. Appel- Theriault Ford, using lant left in the credit cards to travel in country being across the before Florida. apprehended evidence It is that the detective’s contained apparent defense; essential, for it lent if not to appellant’s important, it was story. to an otherwise most Since questionable credence both Theriault from the other evidence that inferable murders, had jury if the Paulette Carone participated a connection been that with only persons allowed to know two room on been near the Carone prowling room 1214 had well have might accepted of those then evening they appellant’s testimony he not was with his traveling com- when panions they killed the Carones. Appellant therefore con- tends couple’s statements, given Lee, Detective should have been admitted to NRS 51.075. We agree.
According Code, Nevada’s Evidence adopted statement is not by excluded the hearsay rule if its nature the circumstances under which it is made offer “assurances of its not accuracy to be likely calling enhanced declarant 51.075; as a witness.” NRS also, see NRS 51.315.1 Our stat- utes thus endorse Judge Learned Hand’s observation that “the requisites an exception to the rule are necessity circumstantial guaranty of trustworthiness.” G. & C. Merriam Co., Co. v. Syndicate (2 1913); Pub. 207 F. Cir. see also, Co., Dallas County Commercial Union Assurance (5 F.2d Our Evidence explicitly Code any disavows to limit attempt hearsay rule to some exceptions list; preconceived for it twice declares that stated expressly are exceptions See, “illustrative and not restrictive.” again: 51.075(2) 51.315(2). and NRS It this therefore is court’s obligation to decide whether the general recog- criteria 51.075(1) in NRS 51.315(1) nized and NRS are satisfied in the instant case. We believe are. they
Here, the interviewed by Detective Lee had no evi- dent accused, involvement with the police, or the victims. The does not prosecution suggest either Detective Lee or the absent lie, witnesses motivation any had whatever to toor Indeed, assist any appellant way. the declarants apparently had no capacity might, even to know what or might not, ulti- one, mately two, assist appellant. declarants, There not but evidently material aspects agreed: their recollections only saw two in the vicinity men the Carone unkempt provides: 1 NRS 51.075 A statement rule if its nature special circumstances under which it was offer assurances of accuracy likely witness, by calling not to be enhanced *4 the declarant as a though even he is available. 51.305, inclusive, provisions “2. The of NRS 51.085 to are illustra- exception provided by tive and not restrictive of the this section.” provides: NRS 51.315 also A statement rule if: “(a) special Its nature and the circumstances under which it was strong accuracy; made offer assurances of “(b) is The declarant unavailable as witness. provisions 51.355, inclusive, “2. The 51.325 to of NRS are illustra- exception provided by tive not restrictive of the this section.” room; murder one of those two men referred to room where the three men accused of ultimately murdering the Carones lodged. It is doubtful cross-examination would alter these critical aspects couple’s simple story. aWhile serious argument might be made that exclusion evidence would violate the due clause process by withholding defendant, evidence favorable to the no Sixth Amendment con- frontation where, here, clause problem exists evidence favor- able to an accused is offered.2
In
light
foregoing,
we therefore hold that the excluded
evidence, which
manifestly
important to appellant’s theory
noninvolvement in the
should have been admitted
NRS 51.075 and NRS 51.315.
People
Compare:
Lettrich,
v.
(Ill. 1952),
Reversed and remanded for a new trial.
Zenoff, Mowbray, Thompson, JJ., concur.
Batjer, J., dissenting:
I do not believe the trial judge committed reversible error in refusing to allow the investigating officer to from his repeat police what he had been told by the married as a consequence I dissent. respectfully Hearsay is inadmissible as evidence except as provided NRS Title 14 Chapter and the Nevada Rules of Civil
Procedure. In an apparent effort to avoid a conflict between
Amendment,
Confrontation
Clause of
Sixth
Constitution,
States
rule,
set
exceptions
forth in NRS
51.305,
51.075 to NRS
and NRS 51.315 to NRS
51.355 are stated in terms of
from
general
man-
exemption
date of the hearsay rule rather than in terms of admissibility.
Cf.
Janis,
(1966);
Texas,
Brookhart v.
Factual findings resulting from an investigation made pur-
suant to authority granted
law and
against
admissible
Weinstein,
2 See: J.
Rules,
Hearsay
Alternatives
Present
(1968),
F.R.D.
adoption
written before
of the new federal
Compare: People
Crump,
(Ill.
rules.
state to NRS 51.1551 refers facts the officer to hearsay sonal and not knowledge reporting of of contained in opinions statements or conclusions or others 1967). Bauer, (Colo. official See Orth v. reports. of not for the sole purpose Police are admissible reports of matter a third by party the truth establishing asserted a police a of others in informant. The recital of statement NRS hearsay,” is within or “double hearsay hearsay 51.365,2 unless it objection and is inadmissible upon proper to rule hearsay comes inde- recognized exception within a NRS exception, the business or record public of pendent Paulos, 51.1353 Cf. In re Estate of and NRS 51.155. (Iowa 1975); Westinghouse Corp. Dolly N.W.2d El. (Ohio L. &F. 326 N.E.2d Corp., Madison by I made believe the statements married inadmis- are during investigation recorded the detective his by 51.155, court sible 51.135 and the under NRS or trial States error in them. excluding Compare committed no Smith, (D.C. 1975), it was held where F.2d 957 admissible that a police report transcript broadcast impeach records to on the behalf as business defendant’s who was the of the witness declarant. credibility complaining 803(6). Evidence, Federal Rules of Rule are inadmis- I further believe that the excluded of 51.075, a recognized exception sible within NRS which is or record public rule of the business hearsay independent exception. “Records, reports, compilations, 1 NRS 51.155: statements or data form, any public agencies officials are not of or inadmissible under
hearsay rule if set forth: agency; “1. The of the activities official or pursuant duty imposed law; by “2. observed Matters or against cases, the state in In civil cases criminal factual findings resulting investigation an authority from granted law, unless the of sources information or the method or cir- investigation cumstances of the indicate lack of trustworthiness.” “Hearsay hearsay 2 NRS within 51.365: included hearsay part under rule if of the each combined statements con exception hearsay provided chapter.” forms an rule this memorandum, report, compilation, “A 3 NRS 51.135: record data or events, any form, acts, conditions, opinions diagnoses, or made at by, person by, near a or the time or from information transmitted with knowledge, regularly activity, the course all in conducted shown witness, testimony qualified is or other custodian not inadmissible under the rule unless the of information or source preparation method or circumstances of indicate lack trustworthi ness.” Our designed statute was permit admission of evidence imparts which guarantee circumstantial of trust- worthiness not otherwise admissible any under other exception. *6 There rigid can be no rule of for in case admissibility every test is one of States v. reliábility.” “[t]he United Hickey, (7th F.2d 1966). Cir.
The trial must be judge left some discretion to decide whether the source of the information or the cir- method or cumstances of of preparation indicate lack trustworthiness or whether nature recorded statement and the special circumstances under which it was made offer assurances accuracy not be enhanced as a by calling declarant- likely Bohle, witness. (7th States v. F.2d Here the trial without indicated he did judge, specificity, trust-, not believe in the the material investigator’s report to be or reliable. The to be for worthy sought admitted statements the truth the matter reported contained not only double hearsay statements made the married to the investi- gator about what they triple hearsay observed but two NRS 51.365. unkempt persons couple. There is no foundation in the record indicate that the report- ing were able to hear accurately perceive, or remember what I would affirm investigator. judg- related ment of the court. district TAYLOR,
GABRIEL X. v. THE Appellant, Respondent. NEVADA, OF STATE
No.
April 26, Morgan Harris, Harrison, Defender, Mike Dep- Public uty, Clark for County, Appellant. List, George E. Attorney General, City; Carson