*1 McGEE, Appellant, VANCE EVANS v. THE Respondent. NEVADA, STATE OF
No. 18731 McGEE, Appellant, VANCE E. v. THE Respondent. NEVADA, STATE OF
No. 19164 November McGee, Person,
Vance E. In Proper Appellant. Defender, McKenna, Parraguirre, David Public and Jane G. Defender, Appellate Deputy County, Chief Public Washoe Appellant. General, Lane, McKay,
Brian Carson Attorney City; Mills Attorney, Larry Sage, District G. District Deputy Attorney, County, Respondent. Washoe OPINION Court, Steffen, J.: By the
The issue these consolidated cases whether *2 warnings prior may elicited without Miranda1 used affirma- tive to in trial to the one prove perjury subsequent a may hold and concerning the confessed crime. We that it therе- fore affirm the of conviction for in Docket No. judgment 18731. We also dismiss from McGee’s appeal conviction, a of one each pursuant guilty to count plea, larceny and under No. burglary grand Docket 19164.
The Facts 6, 1985, On June an apartment shared three women was McGee burgled. was arrested prosecuted and for the crime. trial, a Following jury McGee was found one guilty of count of and burglary two counts of grand larceny. The sought State to have Nevertheless, McGee sentenced as a habitual criminal.
district yeаrs court sentenced McGee to ten for the burglary and five each years for the larcenies. The sentences for the grand larcenies were to run concurrently with each other and to consecutively burglary The sentence. record from McGee’s first to appeal this court did not reflect the disposition habitual criminal allegation.
On this court appeal, judgments reversed the of conviction based a upon violation of McGee’s Fifth rights, Amendment and remanded matter to the court for district a new trial. Seе 458, (1986). McGee v. 102 Nev. Immedi- decision, ately following this and before McGee was again trial brought burglary to on the an charge, State filed informa- tion against charging McGee him one count perjury. with perjury charge was based upon fact McGee had taken the prior stand in his trial burglary having and had denied the burglary. McGee was tried on the perjury charge before a jury, jury but the unable to was reach a verdict and a mistrial was declared. trial,
At McGee’s second the State first presented the testimony victims of the and of burglary the police officers investigated who the burglary to establish independently McGee had burglary. committed the The State then called police officer testify. David Kuzemchak to Kuzemchak testified that he had known McGee for approximately year to eighteen months. time, Over period Kuzemchak had seen thirty McGee times, and him forty had given citations minor violations on Arizona, (1966). 1 Miranda U.S. had twenty responded occasions. Kuzemchak to
fifteen or Kuzemchak knew that McGee was call at the apartment. Nevertheless, on the afternoon follow- suspect burglary. work, Kuzemchak checking before went ing burglary, Kuzemchak, McGee, already who was incarcerated. dressed see uniform, interview room. Kuzem- in his met with McGee an Instead, warnings. Kuzem- give chak did not McGee his he chak McGee if had committed question. asked burglary, that McGee confessed Kuzemchak testified Kuzemchak had pay stated that he did it in order to off citations concerning Kuzemchak did not make given report him earlier. it the attention of alleged brought this confession' MсGee’s first trial for attorney immediately jury district before confes- concerning alleged No McGee’s burglary. his burglary sion was presented testified that on December follow- Kuzemchak also trial, had in custody Kuzemchak McGee ing McGee’s reason, and him to the transporting for some undisclosed Kuzemchak did not recall whether McGee police department. time, he was handcuffed at the but was under arrest *3 free to Kuzemchak testified that McGee confronted him leave. testimony accused Kuzemchak of on the lying with his trial trial.2 said that McGee burglary stand at McGee’s Kuzemchak burglary, the but insisted that he had not done it again admitted he Kuzemchak stated that had not because of the traffic citations. the he rights McGee of his Miranda at time received informed alleged this second confession. at the was testimony burglary
The of McGee’s trial transcript an the trial. The State then perjury admitted as exhibit to In the transcript jury. transcript, read from the the excerpts burglary grand the the having McGee denied about he story issue. He also told an incredible hоw larcenies in of the victim’s which had possession rings came be in of one to in the burglary. been taken and McGee elected not to presented
The no witnesses defense guilty returned verdict of and the district court testify. jury The criminal and sentenced that McGee was habitual determined has to in the Nevada State Prison. McGee years him serve fifteen No. 18731. this conviction under Docket appealed Meanwhile, had proceeding been burglary prosecution delayed had burglary new trial. The trial been several towаrd a alleged concerning at did not 2 Kuzemchak testify burglary During perjury Kuzemchak testified trial, McGee’s first hearing lying in his at the McGee had accused him testimony preliminary he mistaken when Kuzemchak was perjury on apparently complaint. lying him of in his case that McGee had accused testified in this burglary trial. in the After McGee sentenced request. times at McGee’s matter, however, that it would be to his he determined perjury charge to and to one count guilty burglary to advantage plead larceny. The district court sentenced McGee serve ten grand years grand five and a consecutive years concurrently run with McGee’s larceny. This sentence person appeal case. McGee’s from proper sentence larceny his conviction for court Docket No. 19164. before this
Discussion Docket No. trial with
McGee insists that his was infected prejudi- cial when allowed Officer Kuzemchak to error the district court testify two confessions uttered McGee concerning benefit mandated Miranda. cautionary warnings without McGee is mistaken.
It is true that un-Mirandized confessions arе not admissible as guilt concerning substantive evidence crime crimes of such confessions. It is in that constituting subject matter sense and in those instances that confessions violative of the Thus, offensively. used the United may Miranda doctrine York, in Harris v. New 401 U.S. Supreme Court (1971), rule declared that has “assuming conduct, deterrent effect on sufficient deter- proscribed police is made unavailable to question rence flows when the evidence in its case in chief.” Court also held that in his “every privileged testify criminal defendant is own defense, But privilege or to to do so. cannot be refuse commit Id. right perjury.” to include the construed Havens, In United States stressing “the pronouncements Court reaffirmed its earlier trials, at the truth as well as importance arriving *4 the truth in obligation speak response proper the defendant’s Thereafter, emphasized “there is no gain- Court questions.” our legal at the truth is fundamental saying arriving goal have We insisted when system repeatedly omitted]. [citation testify, testify truthfully must suffer conse- they defendants compelled even defendant is though This true quencеs. Id.
testify his will.” of a consequences We to limit the criminal defendant’s decline own by contradicted his un-Mirandized perjurious testimony, confession, bemay avail- impeachment opportunities to whatever crime. A the confessed concerning able to the State in the trial reach of the ruling would contrary expand Miranda doctrine and diminish the of truth concept para- mount objective of criminal trials.
McGee testified on his own behalf during the trial concerning the charges and grand larceny. His remarks were exculpаtory, shifting guilt to an individual named Pedro. McGee’s testimony also direct conflict with his admissions of guilt to Officer Kuzemchak. On the occasion of each of the McGee, officer, two admissions inculpatory who knew McGee, failed to him advise of his Miranda entitlements. The un-Mirandized allegedly occurring before the bur- trial glary was not alluded to the prosecution After this court reversed McGee’s and grand larceny confession, convictions for reasons unrelated to the McGee v. 102 Nev. the State quite responsibly sought to hold McGеe accountable to the citizens of Nevada for his alleged attempt to frustrate the truth-seeking mechanisms of the earlier trial by an act of perjury. During trial, McGee’s the State offered the un-Mirandized con- fessions as evidence of McGee’s perfidy previous trial. trial, Because McGee testify did not in the perjury the State introduced, appropriately as a foundation for the perjury charge, a transcript of McGee’s sworn the trial involving the charges and grand larceny. McGee, trial, during his previous aсcording the State’s
case, willfully committed a new criminal offense when he sought
to avoid accountability for his criminal acts of burglary
larceny by
perjured
means of
testimony.
evidence of his
alleged perjury
preserved
in the certified transcript of the
proceedings. The un-Mirandized confessions then became evi-
dence of the new crime rather than the crimes concerning which
the admissions were allegedly uttered. The State properly prose-
cuted McGee for the “new
By
crime.”
so doing, the State
еmphasized that criminal trials are not intended to be sporting
contests where “anything goes.” The crime of
is a
serious and intended truth confound that should not be counte-
nanced
State or this court. Harris strongly addressed the
subject of a criminal
perjury,
defendant’s
and stressed that “the
shield provided by Miranda cannot be perverted into a license to
defense,
use perjury by way of a
free from the risk of confronta-
tion with
inconsistent
prior
utterances.”
Moreover, if un-Mirandized confessants who them- perjure selves are immune from criminal prosecution for their perjury, risk prospect impeachment from prior inconsis- admissions, tent would they enjoy a form of criminal immunity not accorded other witnesses and defendants. The only possible
723 enhance preferential for such treatment would be to justification of who elicit or to confes- “punishment” the officers listen the Miranda incantations. administering sions without previously hereafter, the expand As we do not need to perceive observed of Miranda exclusion punitive aspects beyond existing the State’s un-Mirandized confessions as substantive evidence in for crimes involving prosecution implicated case-in-chief in trials in such confessions. Circuit, the Ninth in United States v. 534 By analogy, Raftery, denied, (1976),
F.2d
cert.
conviction for Moreover, declared Id. at 856. the court place.” rule was when exclusionary satisfied purpose [T]he officials were forbidden to use obtained illegally the state the narcotics offenses. The prove purpose forbidding not be Government from rule would served entirely separate the evidence offense using prove after occurring before a search jury supprеssion evidence in the state and seizure court.
Id. at 857. F.2d 385 the Seventh Paepke, United States
Circuit,
seized in violation of
held that evidence
citing Raftery,
in a subsequent prosecution
could be used
Fourth Amendment
Tone,
concurring
in a
stated
Judge
opinion,
fraud.
tax
properly
McGee’s un-Mirandized
why
cogently
case:
in the instant
admitted to prove
sole,
not the
primary,
as “the
if
function
Inasmuch
Janis,
deterrence,” United
rule is
States v.
n.34,
49 L.Ed.2d
U.S. 433.
un-Mirandized confessions are taken. If extended to insulate for the new and different crime of perjury, rule then enhances the windfall to criminal defendants at expense society large again who is deprived right hold such accountable for persons their conduct.
Docket No. 19164
Docket No.
is a proper person
from a
appeal
conviction,
to a
of one
pursuant
guilty plea,
count each of
grand larceny.
best that can be said of McGee’s
effort to overturn these
he
timely
convictions is that
has
filed a
notice of
without
briefs or other
appeal
supplying any
authorities
other than the record of proceedings in the district court.
Although the initial trial record and the present record reflect
overwhelming
guilt
evidence of
and a knowing, voluntary plea of
guilt, we
to adhere to our
prefer
previous
rulings refiising
*7
entertain
on direct
challenges
guilty pleas
appeal. See
v.
Bryant
State,
268,
(1986).
102 Nev.
Conclusion For the reasons hereinbefore specified, of convic- affirmed; tion for under Docket No. 18731 the proper person under Docket No. appeal challenging 19164 the judg- ments of pursuant conviction to a is dismissed. guilty plea
Mowbray Rose,3 JJ., and concur. J., J.,
Springer, with whom Young, C. agrees, dissenting: I dissent because it is clear to me from Nevada and federal case law that the prosecution is not allowed to use a coerced1 confes- sion as affirmative in evidence the state’s case. Rose, Justice, participated of 3 The Honorable Robert E. in the decision record, argument. appeal upon recording
this oral briefs and of the give required warnings “bright-line legal pre 1 Failure to a affords coercion, sumption requiring suppression of all unwarned statements.” of Elstad, 298, (1985) (our Oregon emphasis). v. 306-07 n.1 There is illegality no doubt of the of the confession used in this case. McGee was first jury. burglary prosecuted for and convicted a In the trial the County prosecutor “deliberately repеatedly sought Washoe and to discredit silence,” misconduct, post-arrest prosecutorial which this court [McGee’s] held, disregard frequently constituted a “blatant for well-established and State, 102 Nev. been decided. Walker already The has issue Walker
290, (1986). kind of confession Under this evidence.2 independent cannot be used be the in this case is in The Walker rule and what should rule holds law which also harmony federal constitutional with of Miranda can be properly in consid- statements taken violation credibility and not as “only on passing ered defendant’s] [the 420, McCarty, U.S. Berkemer v. evidence of guilt.” in Walker and the (our rulings of (1984) ruling Our emphasis). consistent point Court on are with Supreme the United States which forbids history Anglo-American jurisprudence long the mouth of forced crime from introduction case, state, here, has the any The as in the accused. case evidence. competent legal burden its with proving case, relied and inadmissible evidence in this the state on The Court United States forbids Supreme its case-in-chief. of the fourth goal and so should we. “Whereas praсtice, such to deter con- rule is unlawful amendment’s3 458, McGee 102 Nev. principles stated of fundamental fairness.” (1986). 725 P.2d After this court set aside disregard conviction reason of the stated deliberate blatant funda- fairness, County pursue perjury prosecutor mental the Washoe decided to charge charge based lied McGee on the McGee prosecution. as a this trial and used coerced confession basis for rights were violated” 2 We in Walker that “Walker’s constitutional noted testify, nothing did not there is a case in which Walker also] “[n]ot [but inherently contradictory majority . . .” about the statement. makes much taking fact the stand and the noncontradic that both defendant’s tory inapplicable present of the statement makes Walker case. nature York, on it that the reliance in Walker Harris v. New To this must be said (in Supreme (1971) Court held U.S. 222 which the United constitutionally employed impeachment could be coerced confession stand) preoccupation our purposes when a defendant takes the witness *8 any rights interpretation belies Walker constitutional Walker with federal used permit coerced to be as affirmative evidence. that would confessions grounds ground both on and on the that The fact that we relied constitutional contradictory change appear not this. the two did does statements majority suggests approved illegal 3 The that have other courts the use evidence collateral trials for crimes other than the crimes which led to the illegal obtaining exception, of the in the evidence. Without actions the majority by inapрosite cases cited cases, are to the In each of case at bar. those in evidence obtained violation amendment was used in fourth totally investigations unrelated criminal led to trials to the illegal police activity. primarily in issue that concerned the courts these whether, illegal activity, cases was at the time of the it was foreseeable that commit crimes the defendant would additional related to the seized evidence. illegally physical All but one of those cases considered whethеr obtained Finally, subsequent excep evidence should be excluded at a tion, with one by prosecuted crimes were federal collateral involved authorities illegally. had physical after state authorities obtained evidence See United
727
rule is to
duct,
fifth amendment’s
goal
...
Sangineto-
v.
United States
evidence.”
trustworthy
assure
1988) (citations omit
1501,
(6th
Miranda,
1518
Cir.
F.2d
859
433,
Tucker,
(1974). The
448
417 U.S.
ted);
v.
Michigan
see
factor in
determining
is not
of a statement
falsity
truth or
which
exclude it. Statements
whether to
as to
making
decision
compelled
not to be
right
violation of the
obtained in
have been
untrustworthy, and
been
regarded
oneself have
testify
on
depend
comes to
enforcement which
criminal law
system
run,
and more
will,
be less reliable
long
in
the confession
investiga
independent
on
system relying
than a
to abuses
subject
Denno,
368,
(1964).
378 U.S.
388-89
Jackson v.
tion.
the benefit of
made without
of statements
In cases
unrebuttable. See
coercion is
presumption
warnings,
1987),
1188,
(9th
Patterson,
Cir.
F.2d
1193
v.
812
United States
denied,
922,
(1988).
harmony
I would hold that use of the confession was reversible error and would also reverse the conviction on plea guilty because it inextricably tied tо the perjury conviction.
One final note: Aside from the legal established and constitu- tional impermissibility using coerced confessions4 as affirma- tive evidence in perjury prosecutions arising out of the confessed crime, I have another reason to question the wisdom of the decision reached by majority. Here we have the state incapac- its own itating prosecutorial processes virtue of coerced con- fessions and the mentioned deliberate and blatant disregard of (See 1). “fundamental fairness.” footnote The majority opinion seems to allow the state to absolve itself of previous sins and to procure a conviction against the same defendant using confession that could not have been admitted in the bur- glary prosecution. I am afraid that this case sends a message to state’s attorneys they if lose a criminal case because of the confession, exclusion of an unlawfully obtained they will be able to use the excluded confession anyway simply by filing a later perjury charge against the same defendant. This seems like sub- terftige followed, to me. This kind of procedure never be may but the invitation to do so is given by this The use of opinion. coerced confessions and engagement by state in “deliberate” and “blatant” disregard of fundamental fairness for an accused per- son bemay too high price pay for putting burglar behind bars. 4 The interesting. this case is rather Police officer Kuzemchak (without interrogated jail claims that he warnings) McGee in McGee admitted to him that he committed the pay order to off three traffic citations day issued the officer to McGee on the of the burglary. not, Kuzemchak did not make a record of this confession and did office, according attorney’s to the district call the matter to the state’s day burglary jury (McGee attention until the of the meeting denies ever day Kuzemchak until the says although he received day three traffic citations burglary, from Kuzemchak on the he could gotten not have fifteen others claimed to have been issued to him
Kuzemchak living because he was not State of Nevada the time question.)