Spillers v. State , 84 Nev. 23 ( 1968 )

OPINION

By the Court,

Zenoff, J.:

This is an appeal from the conviction of Pierce Spillers for rape accompanied with acts of extreme violence and with great bodily injury inflicted in violation of NRS 200.360(1).

On June 28, 1966 the prosecutrix was raped in her home in Reno during the early morning hours as she arose and prepared to go to work. She had arisen at approximately 1:00 a.m. The lights in various parts of the house were turned on. She heard a noise and supecting a prowler went to the dresser and obtained a pistol kept there. She looked out of the bedroom into the hall and spotted the assailant. Temporarily unnerved, she was unable to fire the pistol. Whereupon he lunged; they wrestled for the gun, and a shot was fired into the ceiling as they struggled in the bedroom. The assailant gained control of the gun and told the screaming victim to be quiet or “he’d choke her to death.” The assailant struck the victim on the head with the gun. Stunned, she slumped to a sitting position. When her four-year-old son awakened and entered the room the attacker put the gun to the boy’s head and ordered the prosecutrix to tell the boy to go to his room or he’d shoot him. She so ordered the boy and he obeyed. Striking his victim once more the assailant threw her on the bed, tore off her clothes, covered her head with a pillow, struck her again and committed the act of rape.

After the attack she went to a neighbor’s house for help. The police were called. The victim described the attacker as a Negro, approximately 23 years old, estimated his height and weight, and stated he was wearing prison-type garb and white tennis shoes.

With the aid of a police dog who trailed a “track” (by scent) to the nearby Peavine Honor Camp, the police arrived at the camp and in due course of time apprehended Spillers because he answered the description of the assailant, and had blood and other stains on his clothes and bed sheets.

. After a trial to a jury Spillers was found guilty of rape. The jury affixed the penalty at death and he appeals.

His assignments of error are numerous but they can be grouped: first, in the court’s refusal to allow certain questions concerning racial prejudice at the voir dire examination; second, rulings on the admissibility of certain evidence; third, denial of certain motions, to wit, refusal to

(a) change venue and to grant a continuance because of pretrial and trial publicity;

(b) permit defendant to remain in the sheriff’s custody in Reno instead of remaining in the state prison in Carson City, 30 miles away;

(c) allow funds for expert witnesses and additional discovery;

’ (d) suppress certain evidence that did not meet search and seizure requirements;

(e) allow a jury view of the premises where the attack took place;

(f) dismiss prospective jurors who did not believe in capital punishment; and fourth, that NRS 200.360(1) is unconstitutional because it contravenes the 6th and 14th Amendments of the Constitution of the United States. There is no merit to any of the claims of error except the fourth.

Without reference to the fourth assignment of error a review of the entire case leaves no doubt as to the defendant’s guilt inasmuch as the evidence thereof is convincing beyond a reasonable doubt. The assignments of error which go to the merits of the case depend largely upon the discretion of the trial judge which we find was not abused.

1. The prosecutrix is a white woman, Spillers is a Negro. One prospective juror at the voir dire examination for the selection of the jury was asked, “You do not feel you have any antagonism inherent toward people of the Negro race at all?” Answer: “No.” Question: “Would you be quite agreeable to having a Negro person live next door to you?” Another question: “Would you object to your children attending school largely populated by Negro children?” Upon objection the trial court ruled that those two latter questions were improper. Thereafter, no further efforts were made to develop disqualification for prejudice by reason of race, creed or color.

In a criminal case any party to a jury trial has the right to examine prospective jurors on the voir dire. Extent to which the parties may go in such an examination rests largely in the discretion of the court. On review such discretion is accorded considerable latitude. It is generally regarded as reversible error in a criminal case in which a Negro is a defendant to exclude questions designed to bring out that a prospective juror is so prejudiced against the Negro race that it would take less evidence to convince him that a Negro is guilty of a crime charged than to convince him that a white person had committed the same crime. State v. Higgs, 120 A.2d 152 (Conn. 1956), and cases cited therein. But here the trial judge was not given the opportunity to rule on the questions that would directly concern the state of mind of the jurors as would affect their abilities to sit on this case. They were not asked whether they would require more proof because the defendant is a Negro. We must assume that the jurors having been passed for cause and having survived the peremptory challenges had unprejudiced minds so far as the trial of this defendant is concerned. Aldridge v. United States, 283 U.S. 308 (1931).

2. Many rulings were made concerning the admissibility of certain testimony and evidence. To itemize them would reflect only that they were the customary problems presented in a trial. Our review reveals no abuse of discretion and therefore no error. We rule the same on the objections to certain instructions given as well as those refused. The jury was adequately instructed on the applicable law.

3(a). Defendant stresses that pretrial publicity attending tire trial of the case deprived him of a fair trial because the subject of prison camps (Spillers was an inmate at the time of the offense) was an issue in the gubernatorial campaign being waged during the same year. The trial court properly denied the motion for continuance and motion for change of venue after examining copies of the news articles and radio and television transcripts. Morford v. State, 80 Nev. 438, 395 P.2d 861 (1964). Only ordinary news value was assigned by the news media to this incident. We do not have here the situation of Sheppard v. Maxwell, 384 U.S. 333 (1966), Estes v. Texas, 381 U. S. 532 (1965), or Rideau v. Louisiana, 373 U.S. 723 (1963), where the communities were saturated with publicity so complete in its envelopment that the prejudice of every juror could be presumed.

3(b). No prejudice was shown other than inconvenience that would require defendant’s counsel to consult with him at the Washoe County Jail in Reno instead of at the state prison 30 miles away. Again, it was a discretionary matter. We find no abuse. Lewis v. United States, 277 F.2d 378, 380 (10th Cir. 1960).

3(c). No showing was made that funds were needed to obtain any particular material witness or evidence. In fact, whatever the prosecution had as evidence was made available to the defendant for examination before trial. Upon a showing of need the court may order provision be made for necessary witnesses or evidence, but the record is void of need.

3(d). Spillers complains that when he was arrested at the prison camp his clothing was searched and seized without court approved warrants or his permission. As to this, he has no standing to complain. He is in prison for a prior offense and a search of his quarters and seizure of his effects are not to be tested by the rules which apply to citizens who are possessed of full civil rights. People v. West, 61 Cal.Rptr. 216, 220 (Cal.App. 1967). We add, the search and seizure was incident to a lawful arrest.

3(e). A jury view does not serve the place of evidence. Its only function is to assist the jury in comprehending the evidence before it. There was ho abuse of discretion when the court did not grant the request.

3(f). NRS 175.105(9)¹ compels the exclusion from the jury of anyone who entertains such conscientious opinions as would preclude his finding the defendant guilty if the offense is punishable with death.

The determination of guilt or innocence must be made free of any biases or prejudices. Certainly, a juror who has a fixed mind against the death penaly is not unbiased and, therefore, cannot adjudicate the facts fairly. Such a person is not competent to serve as a juror. We do not agree with the defendant’s contention that a jury composed of 12 persons who are sworn that they can prescribe the death penalty in a proper case are death oriented. They are sworn only to do their duty as jurors. See State v. Williams, 50 Nev. 271, 257 P. 619 (1927).

4. The point raised as to the constitutionality of the rape statute has merit.² A jury found Pierce Spillers guilty of rape with violence and imposed the penalty of death. Under that statute only the jury could direct death. Had Spillers entered a plea of guilty to the charge, the court could not have sentenced him to death. The court’s power to punish is specifically limited to imprisonment for a term of not less than 20 years. Neither is the court empowered to exact the extreme penalty had Spillers pleaded not guilty, and with the State’s consent and court approval waived a jury trial, been tried before the court and found guilty. (Rains v. State, 83 Nev. 58, 422 P.2d 541 (1967).) This lopsided penalty scheme is not constitutionally permissible.³

The Sixth Amendment to the federal constitution and art. 1, § 3 of our state constitution each guaranty the right of trial by jury to one accused of crime. This right is of fundamental character and may not be diminished in value, or its free exercise impaired or discouraged.⁴

One charged under NRS 200.360(1) is compelled to pay a terrible price for exercising his constitutional right to a jury trial — the possibility of death. A coercion exists to forego that right and prefer court adjudication, since the court is powerless to order death. Indeed, in some instances the compelling force may be so great as to cause one who is not guilty to plead guilty, or at least to attempt to place his case before the court at trial without a jury.⁵ One accused under the statute may thus be discouraged from exercising his right to a jury trial, or suffer a possible increased penalty if he does so. To suggest that one’s constitutional right to a jury trial in such circumstances is not impaired is to ignore the obvious.

It is no answer to say that Spillers voluntarily, and with the advice of competent counsel, elected to exercise his right to trial by jury knowing the possible consequence of death. United States v. Whey, 278 F.2d 500, 504 (7th Cir. 1960). The constitutionality of the penalty scheme does not depend upon what the accused does. The statute must stand or fall on its own without regard to the identity of the defendant or the course of action selected by him.

Equally unsound is the notion that the legislature intended the court and jury to have equivalent punishment power for the crime of rape with violence. The opposite is true since the statute reads that only the jury may decree death.

The equal protection clause of the Fourteenth Amendment to the federal constitution also denies validity to the penalty scheme of NRS 200.360(1). A state may not prescribe different penalties for the same offense without violating the equal protection concept. Thus the statute is unconstitutional insofar as it allows a jury to impose a greater penalty than a court for the same offense, thus violating the Sixth and Fourteenth Amendments to the federal constitution, and art. 1, § 3 of our state constitution. (United States v. Jackson, supra, footnote 3.)

NRS 177.240⁶ invests this court with authority to “reverse, affirm, or modify the judgment appealed from.” The sentence imposed is a part of the judgment. Allgood v. State, 78 Nev. 326, 372 P.2d 466 (1962); Ex parte Salge, 1 Nev. 449 (1865). Thus, we may modify an unauthorized sentence and substitute therefor any proper sentence that was open to the sentencing court. State v. Moore, 48 Nev. 405, 233 P. 523 (1925); State v. Johnson, 75 Nev. 481, 346 P.2d 291 (1959); see also State v. Squier, 56 Nev. 386, 54 P.2d 227 (1936).

Nevada has adopted the indeterminate sentence concept— that is, the sentence is for the maximum period imposed by the court subject to termination by parole after service of the minimum term. Ex parte Melosevich, 36 Nev. 67, 133 P. 57 (1913); State v. Moore, supra. Accordingly, the sentencing court must provide for the maximum period when the statute designates only the minimum.⁷ The statute before us, NRS 200.360(1) provides only for a minimum term of not less than 20 years. The maximum period is not set. Thus, the court must supply the maximum in harmony with the theory of the indeterminate sentence — that is, a maximum which will allow for the possibility of parole. A court is not authorized to preclude the possibility of parole unless the legislature has expressly granted that authority. That authority has not been given for the crime of rape. It is only with regard to first degree murder that a court, or jury, may impose sentence without the possibility of parole. Consequently, in the case at hand the new sentence shall be imprisonment for a term of not less than 20 years which may extend to life. Ex parte Lair, 233 P. 789 (Okla. 1925).

Affirmed in part, reversed in part as modified.

Thompson, C. J., and Batjer, L, concur.

1 NRS 175.105. “A challenge for implied bias may be taken for all or any of the following causes, and for no other:

“9. If the offense charged is punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.”

2 NRS 200.360(1). “Rape is the carnal knowledge of a female, forcibly and against her will, and a person duly convicted thereof shall be punished by imprisonment in the state prison for a term of not less than 5 years and which may extend to life; but if such crime be accompanied with acts of extreme violence and great bodily injury inflicted, the person guilty thereof shall be punished by imprisonment in the state prison for a term of not less than 20 years, or he shall suffer death, if the jury by their verdict affix the death penalty.”

3 Similar constitutional objections have been raised concerning 18 U.S.C. § 1201(a), the Federal Kidnapping Statute, commonly referred to as the Lindbergh Law, which provides: “Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.” (Emphasis added.) See United States v. Jackson, 262 F.Supp. 716 (D. Conn. 1967); also Waley v. United States, 233 F.2d 804 (9th Cir. 1956), cert. denied 352 U.S. 896 (1956). Cf. Seadlund v. United States, 97 F.2d 742 (7th Cir. 1938); LaBoy v. New Jersey, 266 F.Supp. 581 (D.N.J. 1967); Robinson v. United States, 264 F.Supp. 146 (Ky. 1967), and McDowell v. United States (No. 5037, Advance Opinion, filed October 25, 1967, E.D. Tenn., digest of opinion found in 2 Cr.L. 2129). (Jackson is presently under review by the U.S. Supreme Court, 387 U.S. 929.)

4 Art. 1, § 3, Nevada Constitution: “The right of trial by jury shall be secured to all and remain inviolate forever; * * (Emphasis added.)

5 NRS 174.480 requires the state’s consent before a defendant can waive a jury. Although not stated, the approval of the court is then essential and is usually not forthcoming, particularly in a capital case.

6 NRS 177.240. “Determination of appeal. The appellate court may reverse, affirm, or modify the judgment appealed from, and may if necessary or proper, order a new trial.”

7 NRS 176.180: "Indeterminate sentence of imprisonment; duties of district attorney and warden.

“1. Whenever any person shall be convicted of any felony for which no fixed period of confinement is imposed by law and where a judgment of confinement is rendered, the court shall, in addition to any fine or forfeiture which it may impose, direct that such person be confined in the state prison for an indeterminate term limited only by the minimum and maximum term of imprisonment prescribed by law for the offense of which such person shall be convicted.

“2. Where no minimum term of imprisonment is prescribed by law, the court shall fix the minimum term in its discretion at not less than 1 year nor more than 5 years, and where no maximum term of imprisonment is prescribed by law, the court shall fix such maximum term of imprisonment. * * *"