nevada reports 1975 (91 nev.).pdf

91 Nev. 1, 1 (1975)

REPORTS OF CASES

DETERMINED BY THE

SUPREME COURT

OF THE

STATE OF NEVADA

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Volume 91____________

91 Nev. 1, 1 (1975) Patton v. Warden

CHARLES THOMAS PATTON, Jr., Appellant, v. WARDEN,NEVADA STATE PRISON, Respondent.

No. 7287

January 6, 1975 530 P.2d 107

Appeal from an order denying post-conviction relief entered in the Second Judicial DistrictCourt, County of Washoe; John F. Sexton, Judge.

After pleading guilty to a charge of assault with intent to rape and being sentenced to aterm of ten years in the state prison, petitioner brought an action for post-conviction relief,claiming that his guilty plea was involuntarily made. The district court denied relief, andpetitioner appealed. The Supreme Court held that the sentencing judge's canvass wasadequate despite the fact that no express waiver was obtained from defendant concerning hisright to confrontation and to trial by jury and his privilege against self-incrimination. Affirmed.

91 Nev. 1, 2 (1975) Patton v. Warden

Gary A. Sheerin, State Public Defender, and A. D. Demetras, Deputy Public Defender, forAppellant.

Robert List, Attorney General, Carson City; Robert E. Rose, District Attorney, andKathleen M. Wall, Deputy District Attorney, Washoe County, for Respondent.

Criminal Law. Sentencing judge's canvass prior to accepting defendant's plea of guilty to charge of assault withintent to rape was adequate despite failure to obtain express waiver from defendant of his right toconfrontation and to trial by jury and his privilege against self-incrimination.

OPINION

Per Curiam:

Charles Thomas Patton, Jr., pleaded guilty to the charge of assault with intent to commitrape and was sentenced to a term of ten years in the Nevada State Prison. The present appeal is taken from the order denying appellant's petition for post-convictionrelief and is based on the theory that his guilty plea was involuntarily made. Appellant asserts, and the record supports him, that the sentencing judge gained from himno express waiver of the three constitutional rights mentioned in Boykin v. Alabama, 395U.S. 238 (1969) (the right to confrontation and to trial by jury and the privilege againstself-incrimination). However, we have held that there need be no such express waiver whenan accused is represented by counsel and it appears from the record that the guilty plea wasotherwise voluntarily and intelligently entered with knowledge of its consequences.Armstrong v. Warden, 90 Nev. 8, 518 P.2d 147 (1974). The record shows that the sentencing judge's canvass was adequate under the requirementsof Armstrong. Cf. Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973). Affirmed.

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91 Nev. 3, 3 (1975) Colonial Leasing, Inc. v. Taylor

COLONIAL LEASING, INC., a Corporation, Appellant,v. WILLIAM J. TAYLOR, Respondent.

No. 7462

January 15, 1975 530 P.2d 762

Appeal from judgment; Eighth Judicial District Court, Clark County; Thomas J.O'Donnell, Judge.

Action to recover damages for breach of an implied warranty that motor home leased byplaintiff from defendant was fit for the purpose for which it was to be used. The district courtentered judgment in favor of plaintiff, and defendant appealed. The Supreme Court held thatthere was substantial evidence to support the trial court's finding of breach and damages, andthere was no prejudicial legal error. Affirmed.

M. Gene Matteucci, of Las Vegas, for Appellant.

Jones, Jones, Bell, LeBaron, Close, Bilbray and Kaufman, and Donald R. Davidson, III, ofLas Vegas, for Respondent.

Sales. In action to recover damages for breach of an implied warranty that motor home leased by plaintifffrom defendant was fit for the purpose for which it was to be used, substantial evidence supported trialcourt's finding of breach and damages.

OPINION

Per Curiam:

In this action to recover damages for breach of an implied warranty that the Dodge MotorHome leased by the plaintiff-respondent from the defendant-appellant was fit for the purposefor which it was to be used, there is substantial evidence to support the trial court's finding ofbreach and damages, and we perceive no prejudicial legal error. Affirmed.

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91 Nev. 4, 4 (1975) Christensen v. Christensen

STEVEN M. CHRISTENSEN and KENNETH ROSS CHRISTENSEN, Appellants, v.JAKICA CHRISTENSEN, Respondent.

No. 7452

January 15, 1975 530 P.2d 754

Appeal from summary judgment; Second Judicial District Court, Washoe County; John

W. Barrett, Judge.

Widow and sons by prior marriage of insured contested for the proceeds of a life insurancepolicy. The district court rendered summary judgment for the widow, and sons, who werenamed beneficiaries, appealed. The Supreme Court, Thompson, J., held that since the gift ofcommunity funds of $66 expended for policy premiums by the husband without his wife'sconsent was not unreasonable in relation to the whole of the community estate, which wasvalued at $7,177.12, the expenditure of the funds for a life policy naming the insured's sons asbeneficiaries was not fraud upon the wife, and she could not recover any of the premiumspaid or the proceeds of the policy. Reversed.

Hale and Belford and Steve Lane, of Reno, for Appellants.

Maurice J. Sullivan, of Reno, for Respondent.

1. Husband and Wife; Insurance. During marriage husband may insure his life in favor of his parents or children by former marriage,paying premiums out of community funds, as long as he is fulfilling a duty, even though it be only a moralone, to provide for such relatives, and so long as community funds so expended are not unreasonably out ofproportion to other community assets remaining, and where husband has done so, there is no fraud upon thewife and she cannot recover any premiums paid or proceeds of policy. NRS 123.230.

2. Insurance. Since husband's gift of community funds of $66 without wife's consent for premiums on life policynaming sons by former marriage as beneficiaries was not unreasonable in relation to whole of communityestate valued at $7,177.12, there was no fraud upon wife and she could not recover any of premiums paidor proceed


of policy, despite contention that gift of insurance proceeds of $5,000 was unreasonable in relation to thecommunity estate.

OPINION

By the Court, Thompson, J.:

This litigation concerns entitlement to $5,000 of life insurance provided under a groupinsurance policy issued by Founders Life Insurance Company. Harry S. Christensen, as anemployee of the City of Reno, was a member of the group covered by the policy. He diedintestate. The adversaries are, on one side, Jakica Christensen, his surviving widow, and onthe other, Steven and Kenneth Christensen, his sons of a prior marriage and the named

beneficiaries of the policy. Since there existed no genuine issue as to any material fact, each side moved for summaryjudgment. The district court entered summary judgment for the widow. The sons haveappealed asserting that they, rather than their stepmother, should have prevailed. The insurance policy was purchased through a payroll deduction of $3.30 per month fromHarry's salary, and all such deductions were made after Harry's marriage to Jakica. The totalsum of $66 had been deducted for such insurance as of his death. Jakica did not know thatSteven and Kenneth were the named beneficiaries. Upon Harry's death, the community estatewas valued at $7,177.12. Of that amount, $2,095.02 was money, and the balance was theestimated value of many items of personal property. The sons contend that their father's designation of them as beneficiaries should be honoredsince statute vested him with the entire management and control of the community property. 1Moreover, they point to the fact that the use of community funds was very small since only$66 had been paid out in premiums. The widow argues that her deceased husband could not make a gift of a portion of theircommunity property without obtaining her consent since her interest therein was not a mereexpectancy, but rather a right vested in her at all times during the marriage [In Re Williams,40 Nev. 241, 262, 161 P. 741 !"

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1 NRS 123.230: The husband shall have the entire management and control of the community property, with

the like power of disposition thereof, except . . . .


(1916)], which right vested upon acquisition of the community asset. In Re Condos's Estate,70 Nev. 271, 277, 266 P.2d 404 (1954). Additionally, she presses the contention that a gift oflife insurance proceeds of $5,000 is unreasonable in relation to the whole of the communityestate valued at $7,177.12, and for that reason must be annulled on the doctrine of Nixon v.Brown, 46 Nev. 439, 449, 214 P. 524 (1923). 1. The broad question as to whether a husband, by virtue of being vested with the entiremanagement and control of the community property, may make a gift of a portion thereofwithout his wife's consent, was considered in Nixon v. Brown, supra. That case concerned avoluntary gift of community real property by the husband in which the wife did not join norgive consent. The court announced a standard for determining the validity of a husband's giftof a portion of the community property without the consent of his wife. That standard: Thehusband may make a voluntary disposition of a portion of the community property,reasonable in reference to the whole amount, in the absence of a fraudulent intent to defeatthe wife's claims. Id. at 456. The court upheld the gift in Nixon v. Brown since its value,

some $50,000 in relation to the community estate in excess of $1,000,000 was notunreasonable, nor was there any suggestion of fraud. The Nixon case concerned a completed gift during the lifetime of the husband at a timewhen the community of husband and wife was in existence. The instant matter involves a giftto take effect upon the death of the husband when there is no longer a community to protect.To this extent the cases are different, and such difference has created problems for courts ofcommunity property states. See Huie, Community Property Laws as Applied to LifeInsurance, 18 Texas L.Rev. 121 (1940); Annots. 114 A.L.R. 545; 168 A.L.R. 342.

[Headnote 1] The rule of Nixon v. Brown is not dissimilar to that of Texas which recognizes the right ofthe husband to make moderate gifts from the community property, not excessive and not infraud of the wife's rights. With regard to insurance, Texas holds that a husband may, duringmarriage, insure his life in favor of his parents or of children by a former marriage, and paythe premiums with community funds, and that so long as he is fulfilling a duty, even though itbe only a moral one to provide for such relatives, and so long as the community funds soexpended are not unreasonably out of proportion to the other community assets remaining,there is no fraud upon the !


wife and she cannot recover any of the premiums so paid or the proceeds of the policy. Jonesv. Jones 146 S.W. 265 (Tex.Civ.App. 1912); Rowlett v. Mitchell 114 S.W. 845(Tex.Civ.App. 1908).

[Headnote 2] This view appeals to us as sensible since it focuses upon community funds expendedrather than upon the face amount of the policy, and is, we think, wholly compatible with thereasoning of Nixon v. Brown. Accordingly, we reverse the judgment entered below since thegift of community funds of $66 for premiums is not unreasonable in relation to the whole ofthe community estate valued at $7,177.12, and direct the district court to enter judgment forSteven and Kenneth Christensen.

Gunderson, C. J., and Batjer, Zenoff, and Mowbray, JJ., concur.

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91 Nev. 7, 7 (1975) Matthews v. Warden

MICHAEL MATTHEWS, Appellant, v. WARDEN,NEVADA STATE PRISON, Respondent.

No. 7624

January 16, 1975 530 P.2d 760

Appeal from an order denying post-conviction relief; Second Judicial District Court,Washoe County; Grant L. Bowen, Judge.

The Supreme Court held that second petition for post-conviction relief, premised on thecontention that petitioner's guilty plea was involuntarily entered, was properly denied, wherepetitioner's first post-conviction petition did not challenge the voluntariness of his plea andwhere the second petition failed to explain why petitioner had previously failed to assert suchchallenge. Affirmed.

Horace R. Goff, State Public Defender, and G. A. Sheerin, Deputy State Public Defender,for Appellant.


91 Nev. 7, 8 (1975) Matthews v. Warden

Criminal Law. Second petition for post-conviction relief, premised on the contention that petitioner's guilty plea wasinvoluntarily entered, was properly denied, where petitioner's first post-conviction petition did notchallenge the voluntariness of his plea and where the second petition failed to explain why petitioner hadpreviously failed to assert such challenge.

OPINION

Per Curiam:

Matthews, who had pleaded guilty to the charge of uttering a forged instrument, appealsfrom an order denying his second petition for post-conviction relief premised on thecontention that his guilty plea was involuntarily entered. Since his first post-convictionpetition did not challenge the voluntariness of his plea, and since his second petition did notexplain why he had previously failed to assert such challenge, the district court denied relief.This was permissible. Rogers v. Warden, 86 Nev. 359, 468 P.2d 993 (1970); Johnson v.

Warden, 89 Nev. 476, 515 P.2d 63 (1973). Affirmed.

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91 Nev. 8, 8 (1975) Sheriff v. Valdez

SHERIFF, CLARK COUNTY, NEVADA, Appellant, v. MARK VALDEZ, ALFRED OLEAENRIQUEZ and DONALD ELMER SHAPIRO, Respondents.

No. 8010

January 16, 1975 530 P.2d 759

Appeal from order granting writ of habeas corpus, Eighth Judicial District Court, ClarkCounty; Carl J. Christensen, Judge.

The Supreme Court held that the district court did not err in determining that theprosecution failed to present sufficient evidence to establish probable cause to holdpetitioners for trial. Affirmed.

Robert List, Attorney General, Carson City; George Holt, District Attorney, and ShermanH. Simmons, Deputy District Attorney, Clark County, for Appellant.

George D. Frame, of Las Vegas, for Respondents Mark Valdez and Alfred Olea Enriquez.

91 Nev. 8, 9 (1975) Sheriff v. Valdez

Douglas G. Crosby, of Las Vegas, for Respondent Donald Elmer Shapiro.

Criminal Law. Evidence was insufficient to establish probable cause to hold petitioners for trial. NRS 171.206.

OPINION

Per Curiam:

We find no error in the district court's determination that the prosecution failed to present

sufficient evidence to establish probable cause to hold appellants for trial. NRS 171.206;State v. Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971). The district court's order granting habeas corpus is affirmed.

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91 Nev. 9, 9 (1975) Riddle v. Warden

BILLY DON RIDDLE, Appellant, v. WARDEN,NEVADA STATE PRISON, Respondent.

No. 7279

January 16, 1975 530 P.2d 757

Appeal from judgment denying post-conviction relief entered on January 30, 1973. SecondJudicial District Court, Washoe County; John F. Sexton, Judge.

The Supreme Court held that defendant's pleas of guilty to two counts of robbery werevoluntary entered and that defendant's contentions that pleas were induced by promises ofleniency and that he made ineffective waiver of his right to jury were improperly raised onappeal. Affirmed.

Rodlin Goff, State Public Defender, and A. D. Demetras, Deputy Public Defender, ofCarson City, for Appellant.


1. Criminal Law. Statute governing court's acceptance of guilty pleas requires that accused understand nature of chargesagainst him and consequences of his plea. NRS 174.035, subd. 1.


2. Criminal Law. Defendant, who stated he understood two counts of robbery alleged in information against him, whostated he had discussed entry of his pleas with his counsel, who stated he understood significance of hisguilty pleas, and who stated he understood that sentence was from one to fifteen years, entered voluntary

pleas of guilty in proceedings which complied with statute. NRS 174.035, subd. 1.3. Criminal Law.

Defendant's contention that his guilty pleas to robbery were induced by promises of leniency, which wasraised for first time on appeal from denial of petition for post-conviction relief was not considered bySupreme Court.

4. Criminal Law. Contention of defendant, who pleaded guilty, that he made ineffective waiver of his right to jury wasimproperly raised in Supreme Court on appeal from denial of post-conviction relief, in light of statuteproviding that if defendant's conviction was upon plea of guilty, all claims for post-conviction relief arewaived except claim that plea was involuntarily entered. NRS 177.375, subd. 1.

OPINION

Per Curiam:

On December 12, 1968 Billy Don Riddle pleaded guilty to two counts of robbery forwhich he was sentenced to two five-year terms to run consecutively in the Nevada StatePrison. Riddle was represented by counsel at that time. Riddle asserts on appeal from denial of his petition for post-conviction relief that his guiltypleas were improperly entered because they were made involuntarily without understandingin violation of NRS 174.035(1), and that they were induced by promises of leniency; and thatas a result of the improper entry of said pleas he waived his right to a jury.

[Headnote 1] 1. Riddle acknowledges that the requirements of Boykin v. Alabama, 395 U.S. 238(1969), and Higby v. Sheriff, 86 Nev. 774, 476 P.2d 959 (1970), not being retroactive areinapplicable. Bacon v. State, 90 Nev. 368, 527 P.2d 118 (1974); Mathis v. Warden, 86 Nev.439, 471 P.2d 233 (1970); see also Armstrong v. Warden, 90 Nev. 8, 518 P.2d 147 (1974).Riddle's guilty pleas are thus governed by the requirements of NRS 174.035(1), 1 which wasin effect at the time of entry of

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1 NRS 174.035(1) states, A defendant may plead not guilty, guilty or, with the consent of the court, nolo

contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolocontendere without first addressing the defendant personally and determining that the plea is made voluntarilywith understanding of the nature of the charge and consequences of the plea.


the pleas. NRS 174.035(1) requires that the accused understand the nature of the chargesagainst him and the consequences of his plea. Stocks v. Warden, 86 Nev. 758, 476 P.2d 469

(1970).

[Headnote 2] The record on appeal indicates full compliance with these requirements. The trial court atthe time of acceptance of the guilty pleas questioned Riddle as to his understanding of the twocounts alleged in the information against him, if he had discussed the entry of his plea withhis counsel, if he understood the significance of his guilty plea to two separate counts ofrobbery and if he understood that the sentence was from one to fifteen years and that it waswithin the authority of the court to allow the two sentences to run consecutively. Theappellant answered in the affirmative to all questions asked.

[Headnote 3] 2. Riddle also contends that the guilty pleas were induced by promises of leniency, butthis assignment of error is raised for the first time on appeal from the denial of his petition forpost-conviction relief and will not be considered by this court. Sherman v. State, 89 Nev. 77,506 P.2d 417 (1973).

[Headnote 4] 3. NRS 177.375(1) provides, If the petitioner's conviction was upon a plea of guilty, allclaims for post-conviction relief are waived except the claim that the plea was involuntarilyentered. Riddle's contention of an ineffective waiver of his right to a jury is improperlyraised. Affirmed.

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91 Nev. 11, 11 (1975) Snarr Advertising, Inc. v. Sturgeon

SNARR ADVERTISING, INC., Appellant, v. RAYMOND L. STURGEON, dbaSTURGEON'S LOG CABIN AND CAFE, Respondent.

No. 7541

January 16, 1975 530 P.2d 762

Appeal from order granting a Rule 41(b) dismissal; Sixth Judicial District Court, PershingCounty; Thomas J. O'Donnell, Judge.

The Supreme Court held that where appellant did not docket with reviewing court atranscript of the trial, nor a substitute !!#

91 Nev. 11, 12 (1975) Snarr Advertising, Inc. v. Sturgeon

therefor, reviewing court would assume that the evidence supported the trial court's implicitdeterminations. Affirmed.

Hale and Belford, and Steve Lane and Stephen V. Novacek, of Reno, for Appellant.

Belanger and Wagner, of Lovelock, for Respondent.

Appeal and Error. Where appellant did not docket with reviewing court a transcript of the trial, nor a substitute therefor,reviewing court would assume that the evidence supported the trial court's implicit determinations ingranting a Rule 41(b) dismissal. NRCP 41(b).

OPINION

Per Curiam:

We affirm the order of the district court granting a Rule 41(b) dismissal since the appellanthas not docketed with this court a transcript of the trial, nor a substitute therefor, and, wemust, therefore, assume that the evidence supported the trial court's implicit determinations.City of Las Vegas v. Bolden, 89 Nev. 526, 516 P.2d 110 (1973); Meakin v. Meakin, 88 Nev.25, 492 P.2d 1304 (1972).

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91 Nev. 12, 12 (1975) Stamps v. Warden

JAMES STAMPS, Appellant, v. WARDEN,NEVADA STATE PRISON, Respondent.

No. 7608

January 16, 1975 530 P.2d 763

Appeal from order denying post-conviction relief, First Judicial District Court, CarsonCity; Frank B. Gregory Judge.

Petitioner, who had been sentenced to ten years in the penitentiary on his plea of guilty to

robbery, petitioned for post-conviction relief alleging that his plea had been involuntarilymade. The district court denied the petition without an evidentiary hearing and the petitionerappealed. The Supreme Court held that petitioner was entitled to an evidentiary hearing fordetermination of validity of his allegation that district attorney $


had promised probation for petitioner and three codefendants in exchange for pleas of guilty. Reversed and remanded.

Horace R. Goff, State Public Defender, and Gary A. Sheerin, Deputy Public Defender,Carson City, for Appellant.

Robert List, Attorney General, and Robert A. Groves, Deputy Attorney General, CarsonCity, for Respondent.

1. Criminal Law. Post-conviction relief petitioner who alleged that guilty plea to robbery had been involuntarily madebecause district attorney had promised probation to him and three codefendants in exchange for pleas ofguilty and who had been sentenced to ten years while one codefendant had been granted probation wasentitled to an evidentiary hearing for determination of validity of his allegation.

2. Criminal Law. An accused who enters a plea of guilty upon the basis of an unequivocal promise by the prosecution isentitled to withdraw his plea if that promise goes unfulfilled.

OPINION

Per Curiam:

Appellant was arrested with three male companions and charged with the crime ofrobbery. All four men pleaded guilty. Stamps was sentenced to a ten year term in the NevadaState Prison. One of his codefendants was granted probation. Appellant subsequently petitioned for post-conviction relief, alleging that his guilty pleahad been involuntarily made. The facts which he claims support this allegation include apromise of probation for all four defendants given by the District Attorney of Elko County inexchange for their pleas of guilty. 1

[Headnotes 1, 2] The district court denied appellant's petition without an evidentiary hearing. We have held,on similar operative facts, that an appellant is entitled to an evidentiary hearing for thedetermination of the validity of the allegation of the promise. Fine v. Warden, 90 Nev. 166,

521 P.2d 374 (1974). Such a hearing is necessary for it is well established that an accusedwho "!%&!'()**+&,--

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1 Although appellant alleged the promise of probation was made by the District Attorney of Elko County, the

record reflects that the guilty plea negotiations took place in Lander County, where the offense occurred.


enters a plea of guilty upon the basis of an unequivocal promise by the prosecution is entitledto withdraw his plea if that promise goes unfulfilled. Id., citing Santobello v. New York, 404U.S. 257 (1971). We, therefore, reverse the order of the district judge and remand the case for an evidentiaryhearing to determine the veracity of Stamps' allegation of the promise.

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91 Nev. 14, 14 (1975) Petitti v. Sheriff

GARY PETITTI, Appellant, v. SHERIFF, CLARKCOUNTY, NEVADA, Respondent.

No. 8019

January 16, 1975 530 P.2d 758

Appeal from order denying pretrial petition for writ of habeas corpus, Eighth JudicialDistrict Court, Clark County; Carl J. Christensen, Judge.

Petitioner who was ordered to stand trial for sale of controlled substance to a person under21 years of age petitioned for writ of habeas corpus on ground that the evidence atpreliminary hearing was insufficient to establish probable cause. The district court enteredorder denying pretrial petition and the petitioner appealed. The Supreme Court held thatwhere preliminary examination evidence was barren of any documents or testimony evenalluding to age of person to whom sale was purportedly made, the evidence was insufficientto establish probable cause.

Reversed, with instructions to grant writ without prejudice to new proceeding.

Charles L. Garner and George D. Frame, Las Vegas, for Appellant.

Robert List, Attorney General, Carson City; George Holt, District Attorney, and H. LeonSimon, Deputy District Attorney, Clark County, for Respondent.

1. Criminal Law. In cases where age is an issue competent proof thereof is essential.

2. Criminal Law. Where defendant was charged with having sold a controlled ,$!

91 Nev. 14, 15 (1975) Petitti v. Sheriff

substance to a person under 21 years of age, preliminary examination evidence which was barren of anydocuments or oral testimony alluding to the age of person to whom sale was purportedly made wasinsufficient to establish probable cause. NRS 171.206, 453.161, 453.321, subd.2(a)(1)(2).

OPINION

Per Curiam:

Gary Petitti was ordered to stand trial for sale of a controlled substance (diacetylmorphine,commonly known as heroin) to a person under 21 years of age, a felony under NRS 453.321and NRS 453.161. In a pretrial habeas challenge he contended there was insufficient evidence adduced at thepreliminary examination to establish probable cause that he committed the charged offense,as required by NRS 171.206. The district court denied habeas and Petitti argues the order ofthe district court should be reversed. We agree. Although the information charged that Petitti made a sale to a person under 21 years ofage, the record of the preliminary examination is barren of any document or testimony thateven alludes to the age of the person to whom the sale was purportedly made. 1

[Headnote 1] In cases where age is an issue, competent proof thereof is essential. 2 Cf. Gay v. Sheriff,89 Nev. 118, 508 P.2d 1 (1973).

[Headnote 2] Accordingly, the district court should have granted the habeas petition. The district court's

order denying habeas corpus therefore is reversed, and the court is instructed to grant suchwrit without prejudice to institution of such charges as the state may determine it can produceevidence to prove.

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1 The incumbent Clark County District Attorney did not occupy that office when these proceedings occurred.

2 The penalty appellant faces, if convicted of a sale to a person under the age of 21, is life imprisonment with

possibility of parole. NRS 453.321(2)(a)(2). If convicted of a sale to a person over the age of 21, the penaltyrange is from 1 to 20 years imprisonment. NRS 453.321(2)(a)(1).

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91 Nev. 16, 16 (1975) Williams v. Warden

BILLY WILLIAMS, Appellant, v. WARDEN,NEVADA STATE PRISON, Respondent.

No. 7482

January 16, 1975 530 P.2d 761

Appeal from order denying writ of habeas corpus. First Judicial District Court, CarsonCity; Frank B. Gregory, Judge.

Prisoner sought habeas corpus to secure release from imprisonment under life sentence asan habitual criminal following conviction of crime of robbery. The district court denied writ,and prisoner appealed. The Supreme Court held that where record which containeddefendant's history of mental illness and an evaluation of defendant by a court-appointedpsychiatrist raised serious doubt as to defendant's competency to stand trial, failure of trialcourt to grant defendant a hearing on his mental competency required release of defendantfrom imprisonment or retrial following competency hearing. Reversed.

Rodlin Goff, State Public Defender, and Gary A. Sheerin, Deputy Public Defender, ofCarson City, for Appellant.

Robert List, Attorney General, and Robert A. Groves, Deputy Attorney General, of CarsonCity, for Respondent.

Habeas Corpus. Where record which contained defendant's history of mental illness and an evaluation of defendant by

a court-appointed psychiatrist raised serious doubt as to defendant's competency to stand trial, failure oftrial court to grant defendant a hearing on his mental competency required release of defendant fromimprisonment or retrial following competency hearing.

OPINION

Per Curiam:

Billy Williams was convicted of the crime of robbery for which he was sentenced to lifeimprisonment as an habitual criminal. Williams appealed to this court on March 7, 1969. Weaffirmed. A petition for rehearing was subsequently denied and the Supreme Court of theUnited States denied his petition for a writ of certiorari. Williams v. Nevada, 396 U.S. 916(1969). On July 27, 1971 the United States District Court of Nevada denied Williams' petition fora writ of habeas corpus and on +&./'.0$'1&2*2!

91 Nev. 16, 17 (1975) Williams v. Warden

appeal from that denial the United States Court of Appeals, Ninth Circuit, affirmed the denialon the grounds that Williams had not exhausted his state remedies under NRS 34.360, ourstatutory habeas corpus provision. Williams v. Hocker, 463 F.2d 234 (9th Cir. 1972). OnJanuary 12, 1973 Williams petitioned for a writ of habeas corpus to the First Judicial DistrictCourt and said petition was denied without a hearing. Williams now seeks reversal of thatdenial. The United States Court of Appeals, Ninth Circuit, in considering Williams' appeal ofdenial of his petition for habeas corpus, stated that Williams was entitled to a hearing on hismental competency to stand trial under Pate v. Robinson, 383 U.S. 375 (1966). The recordbefore the court contained sufficient evidence to raise serious doubt about Williams'competency to stand trial as indicated by his history of mental illness and the evaluation of acourt-appointed psychiatrist. Williams v. Hocker, supra. We chose to follow the suggestion of the Ninth Circuit Court for otherwise an unnecessaryburden is placed on the U.S. District Court of the District of Nevada. Fine v. Warden, 90 Nev.166, 521 P.2d 374 (1974); Rahn v. Warden, 88 Nev. 429, 498 P.2d 1344 (1972). The order ofthe trial court is therefore reversed and we order Williams discharged from confinementunless the State within a reasonable time elects to retry him. Should the State so elect,Williams shall be given a special hearing to determine mental competency to stand trial. Patev. Robinson, supra; Krause v. Fogliani, 82 Nev. 459, 463, 421 P.2d 949 (1966). Reversed.

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91 Nev. 17, 17 (1975) Rhodes v. State

ROBERT LOUIS RHODES, Appellant, v. THESTATE OF NEVADA, Respondent.

No. 6935

January 20, 1975 530 P.2d 1199

Appeal from conviction of first degree murder in the Eighth Judicial District Court, ClarkCounty; William P. Compton, Judge.

The Supreme Court, Thompson, J., held that United States Supreme Court decisionproscribing death penalty did not require referral to juvenile division of defendant, who was17 years old when charged homicide occurred; that testimony of #

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witness whose identity was learned as result of defendant's confessions to probation officersand policemen and physical evidence discovered as result of the confessions were admissibleeven though confessions themselves were inadmissible due to failure to warn defendant of hisrights to remain silent and to have counsel; and that error in permitting officer to testify thatdefendant had admitted entering grocery store where killing occurred with intention ofrobbing it was harmless in view of other overwhelming evidence. Affirmed.

Morgan D. Harris, Public Defender, and Robert Stott, Deputy Public Defender, ClarkCounty, for Appellant.

Robert List, Attorney General, Carson City; Roy A. Woofter, District Attorney, andCharles L. Garner and Daniel M. Seaton, Deputy District Attorneys, Clark County, forRespondent.

1. Indictment and Information. Allegation in indictment concerning means by which charged crime has been committed is essential.

2. Indictment and Information. Trial transcript may be used to augment faulty indictments if accused elects to proceed to trial rather thanpursuing challenge to sufficiency of indictment by appropriate writ.

3. Indictment and Information. Conviction of first degree murder was not invalid on theory that indictment, which contained noallegation as to means by which charged crime was committed, was fatally defective where defendant, afterlosing challenge to sufficiency of indictment, failed to pursue point further by appropriate writ andtranscript showed that defendant had shot victim.

4. Infants. If minor charged with a capital offense is 16 years or older, matter need not be referred to juveniledivision. NRS 62.050, 62.080.

5. Infants. United States Supreme Court decision proscribing death penalty did not require referral to juveniledivision of defendant, who was 17 years old when murder with which he was charged occurred, on theorythat murder was no longer a capital crime, and did not deprive district court of authority to hear casewithout certification that defendant should stand trial in that court as an adult. NRS 62.050, 62.080.

6. Criminal Law. Failure of probation officers to warn defendant of his rights to remain silent and to have counsel prior tointerrogating him fatally infected subsequent interrogation by police officers after defendant had madeconfession to probation officers and probation !!


officers had notified police that defendant should be interrogated and, therefore, confessions given both toprobation officers and police officers were inadmissible even though police officers did warn defendant ofhis rights prior to interrogation.

7. Criminal Law. Improper refusal to grant defendant's motion to suppress confessions was harmless where confessionswere not offered in evidence at trial.

8. Criminal Law. Testimony of witness whose identity was learned as result of defendant's confessions and physicalevidence discovered as result of confessions were admissible even though confessions themselves wereinadmissible due to failure to warn defendant of his rights to remain silent and to have counsel, wheredefendant's confessions were not compelled and there was no direct infringement upon his privilege againstself incrimination. U.S.C.A.Const. Amend. 5.

9. Criminal Law. Evidence that defendant had admitted entering grocery store where charged homicide occurred withintention of robbing it, which evidence was inadmissible to prove guilt during presentation of State's casein chief due to failure to warn defendant of his rights to remain silent and to have counsel, did not acquirestatus of admissibility in rebuttal simply because defendant offered medical opinion evidence as to his

mental capacity.10. Criminal Law.

In prosecution for murder in the first degree, error in permitting officer to testify that defendant hadadmitted entering grocery store where charged homicide occurred with intention of robbing it was harmlessin view of other overwhelming evidence.

11. Criminal Law. Trial court was not required to instruct on subject of voluntariness of defendant's confession to policeofficers where such confessions were not offered in evidence.

12. Criminal Law. Confession which accused voluntarily made to a friend was not embraced within rule requiringinstruction that jury must find that a confession is voluntary before considering it.

OPINION

By the Court, Thompson, J.:

This appeal is from judgment and sentence entered upon jury verdict finding Robert LouisRhodes guilty of first degree murder and directing his imprisonment for life with thepossibility of parole. We have considered the several claims of error and conclude thatRhodes received a fair trial and that the judgment and sentence may stand. 45,


[Headnotes 1, 2] 1. First, it is claimed that the grand jury indictment is fatally defective since it allegednothing whatever concerning the means by which the crime was committed. Of course, suchan allegation is essential. Simpson v. District Court, 88 Nev. 654, 503 P.2d 1225 (1972).Here, however, Rhodes, after losing his challenge to the sufficiency of the indictment in thedistrict court, failed to pursue his point further by appropriate writ. Had he done so,prohibition would have issued without prejudice to a new and sufficient accusation. Simpsonv. District Court, supra. Instead, he elected to proceed to trial. Consequently, his presentattack upon the sufficiency of the indictment is to be judged by a reduced standard whichpermits our examination of the trial transcript to augment the faulty indictment. Simpson v.District Court, supra.

[Headnote 3] The transcript shows that Rhodes shot his victim. Indeed, he does not now assert that thehomicide was otherwise accomplished, that his ability to defend was impaired by reason ofthe faulty indictment, or that he was in any way surprised or prejudiced thereby. It is apparentthat he proceeded to trial upon the indictment as drawn because it was not important to him tocompel an allegation concerning the means by which the homicide was committed. We,therefore, deny his present challenge.

2. Rhodes was 17 years old when the homicide occurred. Since he was a minor hecontends that the charge against him fell within the jurisdiction of the juvenile court and thatthe district court lacked authority to hear the case without a certification that he stand trial inthat court as an adult.

[Headnotes 4, 5] It is clear that if a minor, 16 years or older, commits a capital offense, the matter need notbe referred to the juvenile division. NRS 62.080; 62.050; Lehmann v. Warden, 87 Nev. 24,480 P.2d 155 (1971). Rhodes argues, however, that the subsequent decision of the UnitedStates Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), nullifies the mentionedstatute and our Lehman opinion. Although Furman v. Georgia, supra, proscribed the deathpenalty, it did not purport to treat the underlying gravity of capital offenses for otherpurposes. We have so ruled with regard to bail, Jones v. Sheriff, 89 Nev. 175, 509 P.2d 824(1973), and now extend that view to encompass the present issue. Juvenile court certificationis not


necessary when a minor is charged with a capital offense. Lehmann v. Warden, supra,continues to be viable. 3. Robert Born was shot in the head while at his grocery store in Las Vegas. The cashregister was pried open and the money stolen. Rhodes was on probation when the killingoccurred. His supervisory probation officer had received word that Rhodes was in possessionof certain guns and had stated that people were looking for someone who had killed a grocer.Consequently, that officer and a companion probation officer decided to question Rhodesconcerning his possible involvement with the homicide. The interrogation occurred at the jail where Rhodes was in custody on other charges. Thejuvenile officers did not protect Rhodes' privilege against self incrimination by first warninghim of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966). During the courseof their conversation Rhodes confessed that he had killed Born. Although the Mirandawarnings were not given to assure Rhodes' awareness of his constitutional rights, there isabsolutely nothing otherwise to suggest that his confession was coerced or involuntarilygiven. Indeed, the record reflects that Rhodes desired to tell his story of the crime in an effortto relieve destructive inner feelings, and that his confession was voluntarily given withoutcoercion, actual or psychological. The probation officers immediately notified the police that Rhodes should be interrogated,but did not tell them of the confession. The police came to the jail that same day, warnedRhodes of his constitutional rights in accordance with the commands of Miranda, andproceeded to question him. Rhodes orally confessed fully to them, and then signed atypewritten confession. The probation officers to whom Rhodes previously had confessedwere present during the interrogation by the police officers.

[Headnotes 6, 7] Before trial, counsel for Rhodes moved to suppress all confessions. That motion wasgranted with regard to the confession before the probation officers, but denied as to theothers. Since the successive confessions appear to have been a part of one continuous process,the failure of the first interrogators to honor the constitutional rights of Rhodes fatallyinfected the subsequent interrogation which followed in unbroken sequence. White v. State,82 Nev. 304, 308, 417 P.2d 592 (1966). Accordingly, the motion to suppress should havebeen granted


as to all confessions. However, this is of no moment in the case at hand since none of theconfessions was offered in evidence at trial. 1 The identity of a key prosecution witness was, however, secured from the confessions, andalso information which led to the discovery of other physical evidence: a gun, metalfragments, and latent fingerprints. The testimony of the witness, a friend of Rhodes to whomhe also had confessed his crime, and the mentioned physical evidence was received at trialover the objection that all such evidence was the fruit of a poisonous tree, that is, evidencesecured as the result of illegal confessions and, therefore, inadmissible. Hence, the issue: May the fruits of confessions given in violation of the proceduralsafeguards of Miranda be received in evidence if the confessions otherwise are shown to havebeen freely and voluntarily given? a) On the evening of the homicide, Rhodes went to the home of a female friend, PatriciaLennon. During the course of their conversation, he told her that he had gone to the grocerystore to rob it, hit the proprietor and then shot him, and had pried the cash register open with ascrew driver. He also showed her the gun that he had used. She testified to those admissions,and to other statements made by Rhodes. All such statements made by Rhodes werevolunteered, voluntary and admissible. Cf. State v. Billings, 84 Nev. 55, 436 P.2d 212 (1968),where volunteered and voluntary statements to a police officer which were not the result ofpolice interrogation, were held to be admissible. Obviously, the statements made by Rhodesto Patricia Lennon have nothing whatever to do with his Fifth Amendment privilege againstself incrimination, and he concedes this to be so. He does contend, however, that since theidentity of Patricia became known to the police by reason of illegal confessions to them, shewas barred from testifying.

[Headnote 8] This question recently was considered by the United States Supreme Court in Michigan v.Tucker, 417 U.S. 433 (1974). The Court there ruled that the testimony of such witness neednot be excluded where there has been no direct infringement upon the suspect's privilegeagainst compulsory self incrimination, but only a violation of the prophylactic rules which

Miranda developed to protect that right. As already noted, the

____________________

1 Inculpatory statements given by Rhodes to the police officer (not his full confession) were received in

evidence during the State's rebuttal of the defendant's case, and will later be discussed.


confessions were not compelled. There was no direct infringement upon Rhodes' privilegeagainst self incrimination. In line with Michigan v. Tucker, supra, the testimony of thewitness Lennon properly was received. b) The reasoning of Tucker, supra, with regard to the identity of a witness applies withequal force to real or physical evidence which becomes known to the police throughinadmissible confessions. Consequently, the gun, metal fragments and fingerprints properlywere admitted since the confessions themselves were not compelled. 4. Rhodes did not testify. The defense which he proffered through expert medicaltestimony centered on the proposition that at the time of the crime Rhodes' mental state wassuch that he was incapable of forming a specific intent to rob or of premeditating murder. TheState countered this evidence with expert medical evidence of its own. In addition, however, the State offered, and the court, over objection, received testimonyfrom one of the police officers to whom Rhodes had confessed. Although that officer did notrelate the full confession, he was allowed to testify that Rhodes admitted entering the grocerystore with the intention of robbing it. It was, and is the State's position that such inculpatoryadmissions were properly received to rebut the defendant's expert testimony.

[Headnote 9] The trial court erred in allowing the police officer to so testify. As already noted, the Statecould not have used such testimony to prove guilt during the presentation of its case in chiefand did not attempt to do so. That evidence did not acquire the status of admissibility simplybecause the defendant offered medical opinion evidence as to his mental capacity.

[Headnote 10] In the context of this case, however, we believe that the error was harmless beyond areasonable doubt. Harrington v. California, 395 U.S. 250 (1968); Chapman v. California, 386U.S. 18 (1967). The jury had already listened to the volunteered and voluntary confession ofthe defendant as related by the witness Lennon. Other physical evidence tying the defendantto the crime also had been received. The case against him was overwhelming.

[Headnotes 11, 12]

5. The final claim of error may summarily be dismissed. The court was not obliged toinstruct the jury on the subject of !1!..!&6*'!2***7,-638!&'!62


the voluntariness of the confessions made by Rhodes to law officers since such confessionswere not offered in evidence. Cf. Carlson v. State, 84 Nev. 534, 445 P.2d 157 (1968);Grimaldi v. State, 90 Nev. 83, 518 P.2d 615 (1974). His volunteered and voluntary statementsto the witness Patricia Lennon are not embraced by the so-called Massachusetts Rule withwhich Carlson, supra, and Grimaldi, supra, were concerned. The judgment of conviction and the sentence thereon are affirmed.

Gunderson, C. J., and Batjer, Mowbray, and Zenoff, JJ., concur.

____________

91 Nev. 24, 24 (1975) Kokkos v. Tsalikis

FOTINI KOKKOS, Appellant, v. STEPHENTSALIKIS, Respondent.

No. 7548

January 20, 1975 530 P.2d 756

Appeal from order setting aside default entered on August 20, 1973. Eighth JudicialDistrict Court, Clark County; Joseph S. Pavlikowski, Judge.

The Supreme Court held that an order setting aside entry of default was not an appealableorder. Dismissed.

Ohrenschall & Ohrenschall, of Las Vegas, for Appellant.

Robert G. Legakes, of Las Vegas, for Respondent.

1. Appeal and Error.

Order setting aside entry of default was not appealable order. NRAP 3A (b).2. Appeal and Error.

Where no statutory authority to appeal is granted, no right exists. NRAP 3A(b).

OPINION

Per Curiam:

On June 18, 1973, a complaint was filed by Fotini Kokkos against Stephen Tsalikis, andon August 7, 1973, a default was entered against Stephen Tsalikis. Tsalikis on August 15,1973, filed a motion to set aside default and on August 20, 1973, an

91 Nev. 24, 25 (1975) Kokkos v. Tsalikis

order setting aside the default was entered. After a petition for review was granted and ordersetting aside entry of default again entered on October 12, 1973, Kokkos appealed the ordersetting aside entry of default.

[Headnotes 1, 2] An order setting aside entry of default is not an appealable order under NRAP 3A(b). 1NRAP 3A(b) designates the judgments and orders from which an appeal may be taken andwhere no statutory authority to appeal is granted, no right exists. State v. Langan, 29 Nev. 459(1907); Davis v. Davis, 66 Nev. 164, 207 P.2d 240 (1949). Dismissed.

____________________

1 NRAP 3A(b) states, Appealable Determinations. An appeal may be taken:

(1) From a final judgment in an action or proceeding commenced in the court in which the judgmentis rendered. (2) From an order granting or refusing a new trial, or granting or refusing to grant or dissolving orrefusing to dissolve an injunction, or appointing or refusing to appoint a receiver, or vacating or refusingto vacate an order appointing a receiver, or dissolving or refusing to dissolve an attachment, or changingor refusing to change the place of trial, and from any special order made after final judgment. (3) From an interlocutory judgment, order or decree made or entered in actions to redeem real orpersonal property from a mortgage thereof or lien thereon, determining such right to redeem and directingan accounting, and from an interlocutory judgment in actions for partition which determines the rightsand interests of the respective parties and directs partition, sale or division to be made. (4) If an order granting or refusing to grant a motion to change the place of trial of an action orproceeding is not directly appealed from within thirty (30) days, there shall be no appeal therefrom onappeal from the judgment in the action or proceeding or otherwise, and on demand or motion of eitherparty to an action or proceeding the court or judge making the order changing or refusing to change the

place of trial of an action or proceeding shall make an order staying the trial of the action or proceedinguntil the time to appeal from such order, changing or refusing to change the place of trial, shall havelapsed; or if an appeal from such order is taken, until such appeal shall in the appellate court, or in someother manner, be legally determined. (5) No appeal may be taken from an order of a district court denying a motion for summary judgment;however such an order may be reviewed by the Supreme Court in an original proceeding in mandamuswhen from the record it appears that it is the duty of the district court to enter summary judgment.

____________

91 Nev. 26, 26 (1975) Wood v. Warden

ROBERT J. WOOD, Appellant, v. WARDEN,NEVADA STATE PRISON, Respondent.

No. 7283

January 22, 1975 530 P.2d 423

Appeal from order denying post-conviction relief, Second Judicial District Court, WashoeCounty; John F. Sexton, Judge. Affirmed.

Horace R. Goff, State Public Defender, Carson City, for Appellant.

Robert List, Attorney General, Carson City; Larry R. Hicks, District Attorney, andKathleen M. Wall, Assistant Chief Deputy District Attorney, Washoe County, forRespondent.

OPINION

Per Curiam:

The central issue raised in this appeal from an order denying post-conviction relief haspreviously been considered and rejected in Williams v. State, 85 Nev. 169, 451 P.2d 848(1969). Cert. denied, 396 U.S. 916 (1969). Other issues are equally without merit. Johnson v.Warden, 89 Nev. 476, 515 P.2d 63 (1973); Howard v. State, 84 Nev. 599, 446 P.2d 163(1968). Cf. Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974); Founts v. Warden, 89 Nev.280, 511 P.2d 111 (1973). The order of the district court is affirmed.

____________

91 Nev. 27, 27 (1975) LaPorta v. Broadbent

VALERIE FAITH LaPORTA, GENEVA M. TRENT, CHARLES SWIFT and R. HALSMITH, Petitioners, v. ROBERT BROADBENT, MYRON LEAVITT, JACK PETITTI, R. J.

DICK RONZONE, TOM WIESNER, AARON WILLIAMS and JAMES SAILORRYAN, as Commissioners of the CLARK COUNTY BOARD OF COMMISSIONERS;

MYRON LEAVITT, AARON WILLIAMS, JACK PETITTI, Individually; STANTON B.COLTON; LORETTA BOWMAN; WILLIAM SWACKHAMER; COLLEEN

MESCHNACK; BETTY L. GILES; LOLA N. KIRK; THOMAS M. WILLIAMS; LENOREW. CRAMER; JOHN E. JACK JEFFERY; WARREN FOOT; POLL SECURITY

GUARDS I-III; and JOHN DOES I-XX, Respondents.

No. 7986

January 28, 1975 530 P.2d 1404

Petition for peremptory writ of mandamus.

Candidate for election to state assembly sought a writ of mandamus to compel a revote inone precinct due to an error in the conduct of the election. The Supreme Court, Zenoff, J.,held that where, because of an error in repairing the voting mechanism, voters were unable tocast a ballot for either candidate running for state assembly in their district, there must be arevote in that precinct. Writ granted.

Gunderson, C. J., and Thompson, J., dissented.

Rose, Norwood, Edwards & Hunt, Ltd., of Las Vegas, for Petitioners.

I. R. Ashleman, II, and Roy A. Woofter, District Attorney, Clark County, for Respondents.

1. Mandamus. Where, because of short time between election and convening of new legislature, delay in determiningwinner of seat in state assembly would hamper legislative process, Supreme Court entertained originalpetition for mandamus brought by candidate demanding revote in precinct because of absence of ballots onelection day. NRS 293.465; Const. art. 6, 4.

2. Elections. Ballot, in purview of statute requiring revote in precinct where ballots were absent on election day,refers to machines, !!!


computers, or whatever voting device designates candidates. NRS 293.465.

3. Elections. Where, because of error in replacing faulty voting mechanism, ballots for state assembly candidates weremissing from precinct for approximately three hours on election day, revote in that precinct was required.NRS 293.465.

4. Elections. If election is prevented by absence of ballots, county commissioners shall order new election in precinctwhere ballots were absent, and commissioners may not avoid revote by having voters appear and state howthey voted or how they would have voted. NRS 293.465.

OPINION

By the Court, Zenoff, J.:

Petitioner R. Hal Smith was a candidate for election in State Assembly District No. 22 onNovember 5, 1974. For a period of approximately three hours of that day some voters whosigned to vote in Precinct No. 25 were unable to cast a ballot for Smith or the other candidate,John E. Jack Jeffery, because a ballot had become stuck in the voting apparatus and themechanism had to be replaced. Unnoticed by anyone, the substituted mechanism did notcontain the names of Smith or Jeffery but was instead a list of candidates that belonged toanother precinct. After the error was discovered the correct list was inserted but in the meantime anunknown number of persons had cast their ballots but not for either Jeffery or Smith. Jefferywon the election by six votes which Smith contests. He made demand upon the Board ofCommissioners of Clark County for a revote as provided in NRS 293.465. 1 The board voted three to three, one member absent, and because of the tie the requestbefore the board was denied. Without a record of the proceedings before the commissioners)!

____________________

1 NRS 293.465: Loss, destruction of ballots in Precinct or District; new election ordered by County

Commissioners. If an election is prevented in any Precinct or District by reason of the loss or destruction of theballots intended for that Precinct, or any other cause, the election officers for such Precinct or District shallmake an affidavit setting forth such fact and transmitted to the County Commissioners. Upon receipt of suchaffidavit and upon application of any Candidate for office to be voted for by the registered voters of suchPrecinct or District, the County Commissioners shall order a new election in such Precinct or District.(Emphasis added.)


we do not know in detail and with accuracy what evidence was presented. Petitioner sought a writ of mandamus from this court to compel the revote provided in thestatute. After conference between the parties before this court a majority hereof on December13, 1974 issued a peremptory writ of mandamus that the Board of County Commissionersorder the revote in Precinct No. 25 of Henderson, Nevada, in accordance with the statute andfurther provided that only those voters who appeared on November 5, 1974 in HendersonPrecinct No. 25 and signed to vote be permitted to cast ballots in the revote election. Theorder also stated that absentee ballots, if any, heretofore cast for the November 5 electionshall be counted. This is the written opinion with the dissent of two members to explain the writ ofmandamus.

[Headnote 1] 1. Under Article 6, Section 4 of the Nevada Constitution, this court has jurisdiction toentertain petitions for mandamus. Usually we require that such requests be presented to adistrict court first, but in this case we exercise our discretion in favor of an initial hearingbecause the public interest requires an early determination of the issue. The legislature isscheduled to commence January 20, 1975 and delay in the selection of this representativewould hamper the legislative process. To require the presentation to be first made to thedistrict court in all probability would end here in any event, thus we avoid the delay.

[Headnotes 2, 3] 2. NRS 293.465 is unequivocal on the subject of a faulty election when the ballots areunavailable. If an election is prevented as it was here by absence of ballots the statutespecifically states that the county commissioners shall order a new election in the precinctwhere the ballots were absent. 2

[Headnote 4] Evidence before the county commissioners as to who and how many of the voters wouldhave voted for Smith or Jeffery would destroy the secrecy of their ballot and is not pertinentwhen the question is what happens when the ballots aren't !

____________________

2 Our statutes have not been kept current with the transposition of voting machines to the present use of

computers. The distinction for the purposes of this case is not important however. Whatever voting devicedesignates the candidates is the ballot.


there but the voters are. The statute makes no provision that voters appear and state how they

would have voted nor how many. The fundamentals of suffrage require that electors shall have the opportunity to participatein elections and that the real will of the electors should not be defeated by errors in theconduct of an election. NRS 293.127. Writ granted.

Mowbray and Batjer, JJ., concur.

Gunderson, C. J., with whom Thompson, J., agrees, dissenting: We do not feel the issue here is whether the fundamentals of suffrage require that electorsshall have the opportunity to participate in elections and that the real will of the electorsshould not be defeated by errors in the conduct of an election. As we view it, the issue is: Without any record before us and without notice, should thiscourt have mandated a partial new election allowing persons registered in one precinct tohave a second opportunity to vote again long after election day, even though few of themused the defective voting device, though none then complained of loss of suffrage, andthough none has said he either wanted to or tried to vote for any assembly candidate? Oragain, should this court have intervened without record or notice, although nothing evidencedprejudice to petitioner, though statistical probabilities indicated prejudice was highly unlikely,and though political injustice and disfranchisement were likelier to follow than was politicaljustice? Since respondent Jeffery in fact won again in the second, partial election our brethren haveallowed to his opponent, our differences with the majority now are academic, and accordinglywe state only the basics of our position. First, we note that the majority are correct in saying: Without a record of the proceedingsbefore the commissioners we do not know in detail and with accuracy what evidence waspresented. Of course, it was petitioner's burden to bring this court a record impelling adetermination that the county commissioners' action was arbitrary and capricious. Toco v.Gragson, 90 Nev. 131, 520 P.2d 616 (1974); State ex rel. Johns v. Gragson, 89 Nev. 478, 515P.2d 65 (1973). And to us, it seems inappropriate to make such a finding without a record,particularly since this court usually holds that an absent record is presumed to supportadministrative or judicial action. Snarr Advertising, Inc. v. Sturgeon, 91 Nev. 11, 530 P.2d762 (1975); City of Las Vegas v. Bolden, 89 Nev. 526, 516 P.2d -239)!9)66'!,*,7,2*-,3:!:6-'!2*7,

2*,-37!&'!2


110 (1973); Meakin v. Meakin, 88 Nev. 25, 492 P.2d 1304 (1972); Leeming v. Leeming, 87Nev. 530, 490 P.2d 342 (1971); Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952). Second, we note the court here has not just acted without a record of the proceedings

before the county commission, but also without due notice to respondents. This court's rulesestablish orderly procedures to frame and determine legal and factual issues in extraordinarywrit cases. See: NRAP 21. In this case, however, following an informal conference orallyscheduled by one justice, the court not only determined to entertain the petition for writ ofmandamus, but to grant it instanter. This not only required suspension of our rules, but webelieve contravened an express provision of Nevada law, requiring 10 days notice onapplications for peremptory writs of mandamus. NRS 34.200. Hence, under our priorholdings, the court's action in this case seems void for want of requisite notice,notwithstanding the presence of respondents' counsel when the court announced its intentionto grant a peremptory writ. State ex rel. Jurich v. McFadden, 43 Nev. 140, 182 P. 745 (1919);see also, Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974), and cases cited therein. Whatmakes this course of action appear especially inappropriate to us is that the court hasseemingly ignored a very difficult constitutional issue, i.e., whether our state Constitutionvests the Nevada Assembly with exclusive jurisdiction to decide whether faulty electionequipment materially has affected an election's outcome. (See: Nev. Const. Art. 4, 6, whichprovides that [e]ach House shall judge the qualifications, elections and returns of its ownmembers.) By assuming that courts have jurisdiction, the court here reached a result exactlycontrary to one reached four years ago, in a proceeding involving the instant petitioner's 1970opponent. 1 In light of our prior holding, it seems to us respondents' contention that theNevada Assembly has exclusive jurisdiction of the instant controversy was sufficientlyserious to warrant full briefing and consideration of the issue. Third, many recitations of fact in the majority opinion are based entirely on arguments ofpetitioner's counsel; for, as noted, petitioner's counsel brought us no record, and the majority'sruling precluded respondents' counsel from doing so. However, it does seem agreed that only6 to 10 voters used the !!

____________________

1 Although this court did not articulate its reasoning in Koontz and Smith v. First Judicial District Court, No.

6528, this court held that a district court could not decide an election controversy caused by a defective votingmachine, and required that controversy to be judged by the Assembly.


defective device, which was the last in a line and used only when others were in use. It alsoseems agreed that, if some of such voters attempted to vote for an assembly candidate, andthus utilized the improperly labeled punch-holes above the names of petitioner Smith andrespondent Jeffery, then petitioner Smith almost surely benefited from these mistakes whichthe majority assume took place. As petitioner's counsel concedes, the winning candidate inthe other assembly race, Nash Sena, whose name briefly appeared over petitioner's

punch-hole, ran like a scalded dog. Sena defeated his opponent, Billy K. Dedmon, by aratio of seven-to-two. Thus, the chances are remote that the brief appearance of Sena's nameover Smith's punch-hole caused the latter's loss, even assuming that some of the 6 to 10voters who used the defective device endeavored to vote in the Sena-Dedmon race and thusinadvertently marked their computer cards in favor of Smith or Jeffery. Fourth, we note that at the time this court issued its peremptory writ, petitioner Smith hadmandamus proceedings pending in the lower court, set for hearing the following week. Itwould, we submit, have been consistent with accepted practice to let the district courtproceed; for this court will not ordinarily entertain mandamus, when other adequate remediesare available elsewhere. (By that time, incidentally, the record of proceedings before thecounty commission could have been prepared, and what actually was presented to that bodywould have been known.)

____________

91 Nev. 32, 32 (1975) Public Serv. Comm'n v. Community Cable

PUBLIC SERVICE COMMISSION OF NEVADA, and SOUTHWESTERNIMPROVEMENT & INVESTMENT COMPANY, Doing Business as NEVADA

CABLEVISION COMPANY, Appellants, v. COMMUNITY CABLE TV, Respondent.

No. 7415

January 29, 1975 530 P.2d 1392

Appeal from judgment declaring void a certificate of public convenience and necessity ofthe Public Service Commission and granting a certificate of public convenience and necessityfor the purposes of a cable antenna television system to a different applicant. First JudicialDistrict Court, Carson City; Richard L. Waters, Jr., Judge.

The Supreme Court, Zenoff, J., held that trial court did not err in failing to dismisscomplaint for lack of jurisdiction on 3!;..

!"!".#!


ground that it was untimely; that fact that one applicant needed waiver of FCC rule

proscribing cross-ownership of cable TV systems and television station resulted in applicantnot qualifying as having equal ability with other applicant to perform and Commission'srefusal to consider significance of such was arbitrary and capricious and violated statute. Affirmed.

[Rehearing denied March 24, 1975]

Robert List, Attorney General, and Glade L. Hall, Deputy Attorney General, Carson City;Jones & Holt, of Las Vegas; Covington & Burling and Michael S. Horne, James W. Dyke, Jr.,and Craig D. Miller, 888 Sixteenth Street, N.W., Washington, D.C. 20006, for AppellantNevada Cablevision Company.

Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, Ross, Crow &Grayson, of Carson City, and Welch & Morgan, 3000 Farragut Building, Washington, D.C.20006, for Respondent.

1. Public Service Commissions. Within statute providing for judicial review of order of the Public Service Commission fixing rate, chargeor classification or any order fixing any regulations, practices or services, order means a final order andnot an interlocutory action of the Commission. NRS 704.540.

2. Administrative Law and Procedure. Generally, qualities of administrative finality in order or determination are essential to invocation ofjudicial review, even though applicable statute does not contain the word final.

3. Telecommunications. Opinion of Public Service Commission to effect that determination of appropriate service areas for twocable TV companies should not result in immediate issuance of certificate to each and that a complianceorder should be issued to each specifying conditions to be met, including obtaining licensing from FCC,was not a final order of the Commission and was not subject to judicial review; thus, appeal taken morethan 90 days after opinion but within 90 days of issuance of certificates of public convenience andnecessity was timely. NRS 704.020, 704.330, 704.350, 704.540, 711.030, 711.080.

4. Public Service Commissions. An appeal will not lie from an interlocutory order of Public Service Commission unless such orderdeprives a party of substantial right or affects the merits. NRS 704.540.

5. Telecommunications. FCC's minimal federal standards relating to qualifications of cable TV applicants and terms of franchiseare to be applied in


first instance by local authorities in franchise selection process. NRS 704.020, 704.330, 704.350,711.030, 711.080.

6. Telecommunications. Public Service Commission is to be aware of and apply FCC's cable TV standards and to select a

franchise holder whose qualifications are consistent with federal standards. NRS 704.020, 704.330,704.350, 711.030, 711.080.

7. Telecommunications. It was inappropriate for Public Service Commission to ignore FCC's cross-ownership rule in grantingcertificate of public convenience and necessity for purposes of cable TV. NRS 704.020, 704.330,704.350, 711.030, 711.080.

8. Telecommunications. Where, before certificate of public convenience and necessity was issued for cable TV system, the FCCissued rule precluding cross-ownership of cable TV system and television broadcast station in full or partof same service area, the Public Service Commission erred in granting a certificate to applicant, 80 percentof which was owned by such TV broadcast station. NRS 704.020, 704.330, 704.350, 711.030,711.080.

9. Public Service Commissions. Generally, proper function of court in reviewing determination made by administrative agency in grantingcertificate of public convenience and necessity is to determine whether the agency acted within scope of itsauthority, assuming that order complained of was reasonable, not made arbitrarily and in accordance withlaw.

10. Telecommunications. Duty of Public Service Commission with respect to applications for certificates of public convenienceand necessity to operate cable TV systems was to determine which of applicants was best qualified toprovide the proposed service and, in doing so, Commission was required to consider all factors which boreupon public interest and a major consideration was ability of applicants to perform efficiently the servicefor which the authority was requested. NRS 711.090.

11. Telecommunications. Fact that one cable television system applicant could not operate beyond date some five years in thefuture because of FCC rule with respect to cross-ownership was a matter which bore upon public interestand prospective ability of that applicant to efficiently provide service for which authorization wasrequested and should have been considered in determining whether to grant the certificate. NRS711.090.

12. Telecommunications. Facts that applicant for certificate of public convenience and necessity for cable TV system needed awaiver of FCC rule proscribing cross-ownership resulted in applicant not qualifying as having an equalability with another applicant to perform and Public Service Commission's refusal to consider significanceof such was arbitrary, capricious and violated statute. NRS 704.020, 704.330, 704.350, 711.030,711.080.

13. Telecommunications. Opinion and order of Public Service Commission merely finding that two applicants were eligible forcertificates of public !=>"!?@./=>;..=>$


convenience to operate cable TV systems, if and when they met certain proscribed conditions subsequently,did not give applicants ownership interest in CATV system within FCC rule proscribing cross-ownershipof CATV system and TV broadcast station unless ownership interests were in existence on or before stateddate.

14. Franchises. Granting of certificate of public convenience and necessity to applicant whose ability to perform iscontingent upon occurrence of future events is not consistent with statutory requirement that each applicantfor certificate possess ability to perform efficiently a service for which authority is requested. NRS711.090.

15. Telecommunications. Position of applicant for certificate of public convenience and necessity for cable TV system thatcross-ownership problem arising as result of FCC rule proscribing cross-ownership of cable TV system andbroadcast station could be cured by possible occurrence of future events indicated that applicant's thenability to perform was limited and speculative precluding granting of certificate, in view of statute requiringthat each applicant for certificate establish ability to perform efficiently the service for which authority wasrequested. NRS 711.090.

16. Telecommunications. Where one of two applicants for certificate for public convenience and necessity to operate cable TVsystem in one-half of area requested clarification as to whether, if either applicant was unable to perform,remaining applicant should be awarded all of area and Public Service Commission rejected petition forclarification on ground that substance of request was implicit in the order, portion of court's judgmentdirecting Commission to issue one applicant a certificate encompassing entire area, upon finding thatcertificate should not have been issued to the other, may have been superfluous but was not erroneous.NRS 704.540.

OPINION

By the Court, Zenoff, J.:

Community Cable TV and Nevada Cablevision Company were the successful applicantsbefore the Nevada Public Service Commission to construct and operate a community antennatelevision system (CATV) in the greater Las Vegas, Nevada, area. 1 On May 5, 1969, the Public Service Commission issued an opinion and order whichconcluded that the public convenience and necessity would be best served by granting theapplication ..'!.!?$'!.!..=>!./=>!.).3'!.!

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1 NRS 704.020

1. As used in this chapter, public utility shall mean and embrace:. . .

(f) Community antenna television companies.NRS 711.0301. CATV company means any person or organization which


of Community Cable and Nevada Cablevision and, no reasonable basis exists for awardingpreference to either Nevada Cablevision or Community Cable TV as the applicant best suitedto provide CATV service in Clark County; . . . Nevada Cablevision and Community CableTV are both equally qualified to provide such service. . . . The effect of the May 5, 1969, order was to authorize both companies to provide CATVservice within Clark County, their respective service areas to each including approximately50% of the population of Clark County but the order further provided that the respectiveapplications were granted subject to the terms and conditions set forth hereinafter. Theterms and conditions were that preliminary conferences were to be held for the purpose ofestablishing and defining appropriate service areas after which each applicant was to beissued a compliance order specifying the conditions to be met (including the obtaining of allnecessary licensing from the Federal Communications Commission) prior to the issuance of acertificate of public !

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owns, controls, operates or manages a community antenna television system. . . . NRS 704.330 1. Every public utility owning, controlling, operating or maintaining or having any contemplation ofowning, controlling or operating any public utility shall, before beginning such operation or continuingoperations or construction of any line, plant or system or any extension of a line, plant or system withinthis state, obtain from the commission a certificate that the present or future public convenience ornecessity requires or will require such continued operation or commencement of operations orconstruction. The principal Nevada statutes which provide guidelines for the making of a determination in suchmatters are as follows: NRS 704.350 Every applicant for a certificate of public convenience shall furnish such evidence of its corporatecharacter and of its franchise or permits as may be required by the commission. NRS 711.080 1. Upon investigation, the legislature of the State of Nevada has determined that the rates, servicesand operations of community antenna television companies are affected with a public interest. 2. It is the intent of the legislature in the enactment of this chapter to: (a) Provide fair regulation of CATV companies in the interest of the public, to promote adequate,economical and efficient CATV system service to citizens and residents of this state; (b) Provide just and reasonable rates and charges for CATV system services without unjustdiscrimination, undue preferences or advantages, or unfair destructive competitive practices; (c) Encourage and promote harmony between CATV companies and their subscribers; (d) Cooperate with other states and with the Federal Government in


convenience and necessity. See TV Pix, Inc. v. Taylor, 304 F.Supp. 459 (1968). On May 8, 1970, the PSC entered an order establishing the final boundaries of therespective service areas in Community and Nevada Cablevision. On May 29, 1969,Community petitioned the PSC for a clarification of its May 5 order asking the PSC to makeit clear that in the event one of the two successful applicants should be unable to perform theremaining applicant's service area would be enlarged to include the entire greater Las Vegasarea.

On June 10, 1969, the PSC notified all parties that the substance of the requestedclarification was implicit in the May 5, 1969, order granting the application. After the foregoing took place the event that gives rise to this litigation occurred. EffectiveAugust 10, 1970, the FCC added Section 74.1131 to its rules and regulations (now 76.501 asamended). That section provides: (a) Cross-ownership. No CATV system (including all parties under common control)shall carry the signal of any TV A

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promoting and coordinating efforts to regulate effectively CATV companies in the public interest; and (e) Vest authority in the commission to regulate CATV companies generally and their rates, servicesand operations, in the manner and in accordance with the policies set forth in this chapter. NRS 711.090 In determining whether a certificate of public convenience should be issued to a CATV company thecommission shall take into consideration, among other things, the public need for the proposed service oracquisition, the suitability of the applicant, the financial responsibility of the applicant and the ability ofthe applicant to perform efficiently the service for which authority is requested. NRS 711.150 1. Every CATV company and every person and organization providing any service, equipment orfacilities thereto shall provide safe and adequate service, equipment and facilities for the operation of itsCATV system. 2. No CATV company may demand or receive a greater, less or different compensation for providingCATV service than the rates and charges specified in the tariff in effect at the time. 3. All rates, charges and classifications for the service rendered by a CATV company shall be justand reasonable. 4. No CATV company may make any unjust or unreasonable discrimination in rates, charges,classifications, practices, regulations, facilities or services for or in connection with like service, directlyor indirectly, by any means or device, or make or give any undue or unreasonable preference oradvantage to any particular person, class of persons, or locality to any undue or unreasonable prejudice ordisadvantage. 5. Every CATV company and other person and organization shall obey and comply with the rules,regulations and orders adopted by the commission under the provisions of this chapter.


broadcast station if such system directly or indirectly owns, operates, controls or has aninterest in:. . . (2) A television broadcast station whose predicted Grade B contour, computed inaccordance with Section 73.684 of this chapter, overlooks in whole or in part the service areaof such system (i.e., the area in which the system is serving subscribers). . . . Note 1: The word control' as used herein is not limited to majority stock ownershipbut includes actual working control in whatever manner exercised. Note 2: The word interest' as used herein includes, in the case of corporations commonofficers or directors and partial (as well as total) ownership interests represented byownership of voting stock. (d) Effective date: Provisions of Paragraph (a) of this section are not effective untilAugust 10, 1973, as to ownership interests proscribed herein if such interests were inexistence on or before July 1, 1970 (e.g., if a franchise were in existence on or before July 1,1970); provided, however, that the provisions of Paragraph (a) of this section are effective onAugust 10, 1970, as to such interests acquired after July 1, 1970. The deadline for divestiture of cross-ownership interests existing prior to July 1, 1970, wasextended by the Commission to August 10, 1975. This rule prohibits cross-ownership interests between cable TV systems and co-located TVbroadcast stations but allows cable system operators who acquired their state or localgovernment grant of operation authority on or before July 1, 1970, a grace period fordivestiture of one or the other ownership interests until August 10, 1975. Eighty percent ofNevada Cablevision is owned by Donald Reynolds who also owns TV broadcast stationKORK-TV in Las Vegas, thus the provisions with respect to cross-ownership interests of Mr.Reynolds in station KORK-TV and Nevada Cablevision apply. This dispute concerns the significance or effect of Reynolds' interest of the grant of CATVby the PSC. On August 12, 1970, the PSC issued its compliance order setting forth the requirements tobe met by Community and Nevada Cablevision before issuance of their respective certificatesof public convenience and necessity. This order established a time limit for compliance andstated that: This compliance order does not constitute operating authority; . . . provisions of theCATV service contemplated by this compliance order may not be instituted prior to theissuance of the certificate of public convenience and necessity. . . . CC2-"7&.

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On October 13, 1970, following submission of requested documentation by bothapplicants, the PSC issued certificates of public convenience and necessity to CommunityCable and Nevada Cablevision. The order accompanying the issuance of the certificatesinformed the applicants, however, that construction of their respective CATV systems couldnot commence until all necessary licensing had been obtained from the FCC. The deadline forobtaining this license, October 13, 1973, has been extended by the PSC for both certificatesto October 13, 1975. On November 12, 1970, Community by petition directed the attention of the PSC to theenactment of Section 74.1131 (now Section 76.501 as amended) of the FCC rules which hadnot been in existence at the time of the PSC's May 5, 1969, order granting the application ofCommunity and Nevada Cablevision. The PSC denied the petition on November 27, 1970,for the asserted reason that the PSC did not have jurisdiction to interpret Section 74.1131(now Section 76.501) of the rules and regulations of the FCC. Thereupon Community sought review of the October 13, 1970, order before the districtcourt and moved the matter be remanded to the PSC for additional hearings pursuant to theprovisions of NRS 704.560 2 upon the ground that the evidence that has been introduced byCommunity was different from the evidence previously being considered by the PSC,specifically Section 74.1131 of the FCC rules. The district court granted the petition andremanded the matter to the PSC for the stated purpose and its effect on Nevada Cablevision'sability . . . to perform efficiently with service for which authority is requested. On May 9, 1972, the PSC reported to the court that after consideration the PSC haddetermined that it would not alter, modify, amend or rescind Nevada Cablevision's certificateof public convenience and necessity and stated that it believed that the requirement in NevadaCablevision's certificate of public convenience and necessity that copies of all required FCC.C2-2!!'!.!#

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2 The first paragraph of NRS 704.560 dealing with judicial review of PSC orders provides that:

If upon the trial of such action evidence shall be introduced by the plaintiff which is found by thecourt to be different from that offered upon the hearing before the commission, or additional thereto, thecourt before proceeding to render judgment, unless the parties to such action stipulate in writing to thecontrary, shall transmit a co

nevada reports 1975 (91 nev.).pdf

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