State v. McKay , 63 Nev. 118 ( 1946 )

OPINION In this court's opinion upon the appeal in the instant case, we have treated so fully all matters embodied in the five alleged grounds set forth in appellant's petition for a rehearing, that it would be superfluous and inappropriate to repeat a detailed presentation of them herein.

1. The appellant, in his petition, concedes that there is no unqualified rule prohibitory of shackling, but ridicules the idea that his attempt to escape from the Washoe County jail, on the early morning of January 22, 1944 (two days before the commencement of the trial), was sufficient basis upon which to conclude that there was evident danger of his escape, within the meaning of the qualifying clause of the rule as stated by Sir William Blackstone, quoted on page 408 of 165 P.2d, and which is as follows: "The prisoner must be brought to the bar without irons or in any manner of shackles or bonds, unless there be evident danger of escape, and then he may be secured with irons." 4 Bl. Com. 332.

On page 7 of the petition for rehearing, it is stated: "* * * What did the trial court have before it to warrant the denial to appellant of so important a right as to appear before the jury free of all manner of shackles or bonds? The tampering with an inner lock of the jail!"

What are the facts as disclosed by the record? The testimony of Edwin Gily, a deputy sheriff of Washoe County, at the trial, was, substantially, that Gily and one Gray were in the said jail and heard an unusual noise inside the tank; that they sat there and talked a few minutes, and Gily took off his shoes and sneaked over to where he could look inside the tank, and he could see the appellant trying to pry the control box open; that the control box is a lever that opens the main door to the tank, in which the appellant and others were confined; that the appellant had an iron bar, approximately three feet long by three-eighths of an inch wide, and that when the witness looked in, the appellant was prying on the control box; that if he had succeeded in prying the door of the control box open, he might have opened the door of the tank, in which he and others were confined; that he damaged the control box to the extent that they were unable to open it with a key, and that it was bent out of shape, and Gily had to get a locksmith to open it.

This testimony of Gily was uncontradicted by the appellant, although he testified at considerable length at the trial.

On page 45 of this court's opinion upon the appeal in this case, we concluded that the trial court had, at the time of ruling upon the appellant's motion for the removal of the handcuffs, sufficient knowledge and information to justify the conclusion, "that the appellant was, at the time of said ruling, * * * a dangerous and desperate man, and that the sheriff, his deputies and the court were reasonably justified in apprehending that the appellant, if the handcuffs were removed, might at any time, even at the time of the trial, attempt to escape, and that he might resort to any available means of physical violence to accomplish such escape. The appellant, by his own conduct, was the primary cause of any prejudice his being handcuffed might entail. In view of the exceptional facts and circumstances existing, and within the knowledge of the trial judge, * * * at the time of the ruling, we cannot conscientiously say that the trial court abused its discretion in denying the motion to remove the handcuffs."

We can perceive no error in the conclusion we have thus reached, and no substantial reason is shown why we now should depart from it.

In view of the facts as to appellant's prior criminal record, which he admitted, and as to his attempt to escape from the Washoe County jail on January 22, 1944, the appellant had forfeited the right to be free from handcuffs at his trial. The conclusion of the trial court that he was a desperate and dangerous man was amply warranted by the facts involved in his record. That he was willing, for paltry, selfish gain, to invade the rights of others and take, feloniously, that which did not belong to him, was shown by his conviction of burglary in Utah, and his failure to claim that he had been wrongfully convicted. After being paroled and taken into the armed forces of his country, he evidenced lack of patriotism and loyalty, by deserting, and upon being apprehended and convicted therefor, he disclosed an utter disregard for duly constituted authority, by escaping from the Lemoore Army Base, in California.

3. Furthermore, on the day of the wanton and willful murder of Robert Flindt, by the appellant, he had voluntarily admitted to Chief of Police Fletcher that this cruel killing was for the purpose of robbery; that he dragged Flindt behind the picket fence because he did not want any one to see him rob Flindt, and that he wanted the money to gamble, pay his room rent, and eat. This admission to Chief Fletcher, having occurred in the presence of the district attorney of Washoe County, and others, had undoubtedly become known to the trial judge before he ruled as to removing the handcuffs. As said by Judge Wanamaker, in Barnett v. State, 104 Ohio St. 298, on page 310, 135 N.E. 647, 651, 27 A.L.R. 351 (quoted on pages 40 and 41 of our opinion upon the appeal in the instant case): "What we know as men, having common knowledge, * * * we cannot ignore as judges."

In addition to knowledge of this cruel murder of Flindt, which showed appellant bereft of all respect for the rights of others, and even unresponsive to the voice of humanity, the trial judge knew of appellant's said attempt to escape from the Washoe County jail, January 22, 1944, two days before the commencement of his trial, as above set forth.

Could it reasonably be concluded, in view of these facts, that the appellant was other than a desperate criminal, an enemy of human society, utterly untrustworthy and devoid of ordinary sensibility to humane instincts? Could it be believed, in view of the admitted facts, that the appellant was not so completely selfish and ruthless that, in order to gain his liberty, and perhaps his life, he would resort to any desperate means to accomplish his purpose, that might become available to him? The answer is clear. Neither the trial judge, nor the officers in whose charge the appellant was, could be reasonably expected to take undue risks as to their own safety with a man of appellant's character. Because of his own criminal violations of the rights of others, there no longer remained to him any right whatever, under the rule relative to shackling, as universally interpreted, to be free from shackles or bonds at his trial. The ruling of the trial court, therefore, declining to order the removal of the handcuffs from appellant's wrists, deprived the appellant of no substantial right.

Appellant's alleged ground IV, as stated in his petition for rehearing, is as follows: "In denying appellant's motion to have the handcuffs removed, appellant was prejudiced before the jury and was thereby denied his constitutional guarantees to a fair and impartial trial as guaranteed by the Constitution of Nevada and the United States Constitution." 4. It was, precisely, that we might clearly determine whether permitting appellant to be handcuffed before the jury, had operated prejudicially to impair his right to a fair and impartial trial, that in considering this case upon appeal, we examined fully and weighed carefully, the evidence as disclosed by the record. We were not required to do this in order to rule upon the question of the sufficiency of the evidence to justify the verdict. We stated, on page 35 of our opinion upon the appeal, the long-established rule in this state in that regard, and cited, in support thereof: State v. Van Winkle, 6 Nev. 340; State v. Mills, 12 Nev. 403; State v. Buralli, 27 Nev. 41,71 P. 532; State v. Hunter, 48 Nev. 358, 232 P. 778, 235 P. 645; State v. Boyle, 49 Nev. 386, 248 P. 48; and State v. Watts, 53 Nev. 200,296 P. 26.

Realizing, however, that it was entirely possible that some juror or jurors, observing the appellant handcuffed, could have become thereby prejudiced against him to the extent that they might have convicted upon less evidence, or in a higher degree, than if the handcuffs were not apparent, this court diligently scrutinized and carefully weighed, all of the evidence, with the intention of reversing the judgment unless the evidence was not merely substantial, but sufficient to prove, beyond a reasonable doubt, the guilt of the appellant of murder in the first degree. This intention we stated, on pages 56 and 57 of our said opinion, as follows: "Notwithstanding the fact that we have found, from the record, substantial evidence to sustain the verdict, we would still feel it our duty to reverse the judgment if it appeared from the evidence, upon the basis of any reasonable hypothesis, that the appellant could have been not guilty of murder in the first degree."

Logically, there appears little reason why, in the case of a defendant shackled because of a necessity created by his own misconduct, we should weigh the evidence to a far greater extent, to prevent injustice, than in the case of a defendant not guilty of misconduct of such nature as to render shackling reasonably necessary.

Our only reason for assuming the additional burden of weighing the evidence fully, in order to determine with certainty, that is, beyond a reasonable doubt, the guilt or innocence of appellant of first-degree murder, was that we desired to do all possible, consistent with the proper discharge of the duties of this court, to safeguard the right of one accused of crime, regardless of the enormity of his guilt, to a fair and impartial trial as guaranteed by the constitution and laws of the State of Nevada and the constitution of the United States, and to that end, determine, so far as this court could, whether the shackling had operated prejudicially to produce a result contrary to law and to the just rights of the appellant.

However, Mr. Lohse, the attorney for the appellant, apparently failing to realize the extent to which we went in order to make sure that the verdict finding appellant guilty of murder in the first-degree was fully justified by the evidence, and by that alone, proving his guilt in such degree beyond a reasonable doubt, on page 15 of the petition for rehearing, after quoting the foregoing paragraph from pages 56 and 57 of our said opinion, has stated: "If this is now to be laid down as the law of Nevada, then, would it not follow that any man hereafter tried and found guilty of first degree murder, by substantial evidence to support the verdict, such verdict would stand regardless of any violation of his constitutional rights?"

5. What we stated means just the opposite of counsel's conclusion. We said we would still feel it our duty to reverse the judgment, notwithstanding we had found substantial evidence to sustain the verdict, "if it appeared from the evidence upon the basis of any reasonable hypothesis, that the appellant could have been not guilty of murder in the first degree." (Italics ours.)

We would have been justified in reversing the judgment, if the evidence failed to show such guilt of murder in the first degree, beyond a reasonable doubt, upon the theory that the jury, apparently having convicted on less evidence than they should have required, or in a higher degree than the evidence justified, might have been prejudicially influenced by seeing appellant handcuffed before them.

6. We found, however, after fully and carefully weighing the evidence, that it clearly and convincingly proved the appellant's guilt of murder in the first degree beyond a reasonable doubt.

It follows that, by the verdict of the jury finding appellant guilty of murder in the first degree, and by the judgment of the trial court pronounced thereon, there was no miscarriage of justice, and that if the jury had not so found, and the trial court so adjudged, justice would have miscarried in appellant's favor.

The jurors having done no more than their sworn duty, it cannot be presumed in favor of appellant that if appellant had been free from handcuffs, they would have done less than their duty, and that they permitted the fact that they observed appellant in handcuffs before them, or any other extrinsic influence, to enter into their deliberations or to influence, to any extent, their verdict. The verdict being right, and in accord with justice, the shackling did not operate prejudicially to deprive appellant of any right. (Italics ours.) The appellant, of course, had no right to have justice miscarry in his favor. No person has that right.

We have hereinbefore stated, and in our opinion upon the appeal, in effect held, that the trial court, by its ruling declining to order the handcuffs removed, did not deprive appellant of any substantial right; that the jurors, having reached the only result which they could have reached in accordance with their sworn duty, were not prejudicially influenced by the handcuffing of appellant, and that, by their verdict, they did not deprive him of any substantial right; and that he was accorded a fair and impartial trial within the meaning of the constitution of Nevada, and the constitution of the United States.

On page 14 of the petition for rehearing, it is stated:

"It is earnestly and strongly urged that irrespective of whether the verdict the jurors reached was fully justified by the facts and circumstances comprising the evidence and by the law under the court's instructions, that there is no formula in the law by which it can be determined to what degree the appellant was prejudiced by virtue of his having been handcuffed during his trial.

"In spite of the fact that this Honorable Court believes that there is sufficient evidence to substantiate the verdict, the fact remains, that if the trial court could be said to have correctly found that the verdict was justified, appellant submits that such finding in itself could not logically negative the idea that prejudice may have influenced the jurors, since there is no conceivable yardstick in the law to judge the degree of prejudice in the minds of the jurors. To be able to conclusively determine this question, one would, it is seriously and respectfully submitted, have to possess omnipotent powers!"

7. If by this the appellant means that he has some right beyond the right to be judged only upon competent, relevant and material evidence, and to have properly applied thereto correct principles of law — some fanciful right to play upon the sympathy or credulity of the jurors, and perhaps, by false testimony, and pretended innocence, to endeavor to have them depart from their sworn duty, and thereby defeat justice, and of which the handcuffing may have rendered him less capable, with that we are not concerned.

This court said, in its opinion in State v. Skaug, 63 Nev. 59,161 P.2d 708, at page 711: "An aged lady after spending a pleasant social evening with a neighbor, on returning to the shelter of her home alone in the late hours of the night, was set upon by a cold blooded villain and slain under circumstances of revolting atrocity. Besides the death wound inflicted with her husband's revolver, she was brutalized by clubbing, her valuables were stolen and her body left broken and bleeding upon the floor of the ruined home. Hence, in the presence of such enormous and clearly proven guilt we will not pause to speculate as to whether, if evidence of other offenses had been omitted the jury might have returned a verdict carrying a lesser penalty. Section 11266, N.C.L., prevents a reversal."

In the Skaug case, there had been error in admitting in evidence certain testimony as to other offenses; but this court found, in effect that, notwithstanding such error, the guilt of Skaug of murder in the first degree had been clearly proven by competent evidence, beyond a reasonable doubt, and therefore, there was no miscarriage of justice, nor deprivation of a substantial right.

In the instant case, there was no error in declining to order the removal of the handcuffs, for the reasons fully stated herein and in our opinion upon the appeal. The crime committed by the appellant, and of which he has so clearly been proven guilty, was an atrocious and cold-blooded murder. He literally beat and kicked to death, without provocation and without warning, and solely for the purpose of robbery, a man with whom he had pretended social companionship only a short while before. We may well paraphrase, and apply to the instant case, certain language of this court in the Skaug case, as follows: "Hence, in the presence of such enormous and clearly proven guilt we will not pause to speculate as to whether, if `the handcuffing of appellant' had been omitted the jury might have returned a verdict carrying a lesser penalty. Section 11266 N.C.L. prevents a reversal."

We have quoted fully section 11266, vol. 5, N.C.L., on page 59 of our opinion upon the appeal in the instant case, and it is needless to repeat same herein, but we are bound by its provisions, as we were in the Skaug case.

Rehearing denied.